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1 Personal Injury Litigation Tort Law Litigation Insurance Law.

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Presentation on theme: "1 Personal Injury Litigation Tort Law Litigation Insurance Law."— Presentation transcript:

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2 1 Personal Injury Litigation Tort Law Litigation Insurance Law

3 2 P.I. Cases A lawsuit (or potential lawsuit) resulting from injuries caused by the tort of another. Compare: Workers’ Compensation

4 3 Parties and Attorneys Plaintiff Defendant  (Tortfeasor) Plaintiffs Attorneys Defense Attorneys

5 4 TORT Civil wrong resulting in injury for which victim receives compensation in form of money damages Injury Personal (physical/mental) property--real, personal, intellectual reputation

6 5 TORT CATEGORIES Intentional requires intent Negligence violation of “reasonable person standard” Strict Liability liability without fault public interest

7 6 Sources of Tort Law Statutes Case Law

8 7 Tort vs. Crime Act--may be the same Purpose Standard of Proof Interest violated Procedural rules

9 8 Tort vs. Contract Contract = Agreement Tort = Obligation imposed by law

10 9 Overview of Tort Case Investigation & Research (facts & law) Settlement efforts--demand letter complaint filed answer/response filed cross-complaints/answers discovery trial post trial proceedings

11 10 Preliminary Considerations Read chapters 3 & 4 in Nolo Press text

12 11 Preliminary Considerations Fee Arrangements Contingent fee: fee v. costs Statutory limits: Minors, Medical Mal. Requirement of writing Investigation Photos of scene/autos/plaintiff Witness interviews & statements Police reports Identity of all defendants

13 Resources Go to class website Access folder for “civil litigation” Access folder for California Supplement Go to Part 2—read chapter 3 12

14 13 Preliminary Considerations, cont. Defendant—public entity Law & Form: (read information on site) Under 10K and Caltrans—file with them Notify defendant/insurance Advice to plaintiff Necessity of medical liens

15 14 Preliminary considerations The uninsured/underinsured defendant U.M. cases Arbitration An Interesting Web site:

16 15 Insurance Automobile Homeowners/Personal Liability Product Errors and Omissions Umbrella Policies Resource: guides/0010-automobile/Auto-insurance-101.cfm

17 16 Automobile Insurance Liability Medical Payments (Med pay) Comprehensive Collision Uninsured Motorist (U.M.) Underinsured Motorist

18 17 Plaintiff’s insurance Fault vs. No-Fault provisions Subrogation rights of no-fault provisions

19 18 Bad Faith Claims Intentional Tort If insurance carrier unreasonably delays payment on policy If insurance carrier acts unconscionably toward insured Carrier engages in unfair claims practices

20 19 Bad Faith First Party vs. Third Party claims Failure to pay claim within policy limits

21 20 Avoiding Bad Faith by Carrier Reservation of rights Declaratory Relief Action

22 21 Medical Records v. Report Records—Doctor or Hospital notes Report—Specially prepared by M.D. for purpose of litigation—contains prognosis and diagnosis ; Fee is charged for preparation

23 22 Tort Liability—Cal. Civ. Code (a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.

24 23 Intentional Torts Intent intend consequences or result--not harm I.e. intentionally running a red light I.e. pulling a chair out from someone

25 24 Transferred Intent Substitute for intent T intends to punch A, but A ducks and T hits B

26 25 Types of Intentional Torts Torts against Persons Battery, Assault, False imprisonment, intentional inflict of mental distress Defamation (slander and libel); invasion of privacy; malicious prosecution and abuse of process Torts against Property trespass to land, trespass to chattels and conversion; Property includes intellectual property (infringement)

27 26 Analyzing a Tort Every tort has unique elements this is what constitutes a “cause of action” or the prima facie right to sue Every tort has defenses defenses negate liability even though a “prima facie” case is present Defenses are often confused and stated with the cause of action

28 27 Battery--Cause of Action Harmful or offensive contact or touching

29 28 Contact Doesn’t always mean “touching” of two individuals Awareness of contact not necessary

30 29 Harmful or Offensive Distinguish inadvertent touching Harmful or offensive = not wanted Kissing Medical care

31 30 Defenses Consent Capacity to consent Minority = sexual contact; medical treatment Mental capacity Voluntariness Scope of consent Knowing— Medical care—knowing all consequences  Emergency care

32 31 Defenses Self-Defense Actual Reasonable Belief—Mistake Limit of force allowable Deadly force==prevent death or great bodily harm California “Make my day” statute Defense of Others

33 32 Defenses Defense of Property Not deadly force Must be reasonable “Booby traps”—never allowed Regaining property Fresh pursuit Property taken wrongfully

34 33 Assault Intentional Causing of Apprehension or fear Of harmful or offensive Contact Defendant must appear to have present ability to carry out threat

35 34 Defenses Same as with battery

36 35 False Imprisonment/False Arrest Intentionally Confining Another

37 36 Defenses Legal Right Police vs. Private Citizen Shopkeeper’s Privilege—California Consent, etc.

38 37 Intentional Infliction of Emotional Distress Conduct must be outrageous or extreme Thin-skinned plaintiff Today—often part of job/sex harassment Requires some sort of “verification” I.e. psychiatrist

39 38 Sexual Harrassment Cal Civ Code §§51.9, 52 (differs from sexual battery)

40 39 Sexual Harassment—Cal Civ Code (a) A person is liable in a cause of action for sexual harassment under this section when the plaintiff proves all of the following elements: (1) There is a business, service, or professional relationship between the plaintiff and defendant. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons: (A) Physician, psychotherapist, or dentist. For purposes of this section, "psychotherapist" has the same meaning as set forth in paragraph (1) of subdivision (c) of Section 728 of the Business and Professions Code. (B) Attorney, holder of a master's degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer. (C) Executor, trustee, or administrator. (D) Landlord or property manager. (E) Teacher. (F) A relationship that is substantially similar to any of the above. (2) The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe. (3) There is an inability by the plaintiff to easily terminate the relationship. (4) The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2). (b) In an action pursuant to this section, damages shall be awarded as provided by subdivision (b) of Section 52. (c) Nothing in this section shall be construed to limit application of any other remedies or rights provided under the law. (d) The definition of sexual harassment and the standards for determining liability set forth in this section shall be limited to determining liability only with regard to a cause of action brought under this section.

41 40 Sexual Battery CC Offensive contact with intimate part of another Offensive contact—offends reasonable sense of personal dignity General, special, punitive damages and injunctive

42 41 Stalking CC Follow, alarm or harass General damages, special, punitive and injunctive

43 42 Damages 52. (a) Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51 or 51.5, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than one thousand dollars ($1,000), and any attorney' s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51 or (b) Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following: (1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages. (2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any action brought by the person denied the right, or by the Attorney General, a district attorney, or a city attorney. (3) Attorney's fees as may be determined by the court. (e) Actions brought pursuant to this section are independent of any other actions, remedies, or procedures that may be available to an aggrieved party pursuant to any other law.

44 43 Federal Statutes Employment Discrimination 42 U.S.C. §§ 2000 et seq Civil Rights Violations 42 U.S.C. §1983 et seq Private v. Gov’t Action

45 Defamation Untrue statement that exposes a person to exposes any person to hatred, contempt, ridicule, Libel Slander Cal. Civ. Code 44 et seq. Public Figures: NY Times Case—requires malice 44

46 Expectation of Privacy Causing harm to another by 1. an intentional and offensive intrusion into the person’s private life, or 2. an intentional disclosure of offensive or objectionable private facts not of public concern, or 3. an intentional publication portraying the person in a false light, or 4. the unauthorized use of person’s name or image for personal benefit 45

47 46 Negligence Read chapter 2 in Nolo Press text Continue with reading chapter 7 on Web site

48 47 NEGLIGENCE Elements of Cause of Action DUTY BREACH OF DUTY CAUSATION: ACTUAL AND PROXIMATE DAMAGES

49 48 Jury Instructions (CACI) Instructions 400 et seq

50 49 Duty Is defendant under any obligation to protect plaintiff If so, what is that obligation Whether a duty is owed is a question of law— the judge and not jury decide this question Unfortunately, many courts take different approaches and often confuse with proximate cause

51 50 When a Duty Exists Direct relationship of Plaintiff and Defendant Relationship is very broad here I.e. driver of car “Foreseeable Plaintiff” Created by Statute I.e. owner of automobile

52 51 Hypothetical S a shopper is attacked in parking lot of defendant shopping mall at night. Does mall owe her a duty?

53 52 Special Situations of Duty Possessor of Land Rescue Doctrines Seller of Land Unborn Children Vicarious Liability

54 53 Possessor’s of Land Common law view Depended on status of person coming on to property California View Does not depend on status

55 54 Common Law Classifications a trespasser is a person who enters or remains upon land of another without a privilege to do so; a licensee is a person like a social guest who is not an invitee and who is privileged to enter or remain upon land by virtue of the possessor's consent, an invitee is a business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them

56 55 Rowland v. Christian (1968) 69 Cal.2d 108 The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.

57 56 Attractive Nuisance Doctrine Dangerous condition on defendant’s property that is likely to induce children to trespass Creates liability for homeowner to trespassing child Not needed in California because of Rowland v. Christian

58 57 Sellers of Land Duty to Disclose defects Cal Civ Code 1102 et seq. All known defects

59 58 Rescue Doctrine Under common law—no duty unless 1. Special relationship exists 2. Defendant put plaintiff in perilous situation

60 59 Special Relationships Family Common carrier Defendant’s relationship with 3 rd Party who causes harm Tarasoff case Tavern Owner

61 60 Emergency Assistance Once undertaken, the party must use due care even if a duty did not exist to begin with Good Samaritan Statutes Cal. Civ. Proc. § trained in CPR Cal Civ Proc § —Emergency Facilities Limit liability for negligence but not gross negligence

62 61 Unborn Children Refers to c/a by child after birth for injury to Fetus Common law—no duty Most courts recognize some liability today

63 62 Vicarious Liability Common law rule: Employer liable for torts of employee committed in course and scope of employment: Respondeat Superior Exists in California Special Statutory Liability Owner of Car—Amount limited CC —liability of parent for child

64 63 Cal Civ. Code Parent liable for willful tort of child up to 25K (to be adjusted for inflation) In addition to other remedies Parent might also be liable for own tort, I.e. negligent failure to supervise

65 64 Cal Civ Code Parent liable for damages caused by child firing a gun –up to 30K Also liability for own tort

66 65 Tavern Owners Dram Shop Law Cal. Civ. Code 1714 Abrogates liability for tavernowners and social hosts (but not if minors involved) Based on proximate cause not duty

67 Acts of third parties Tort Actions v. Criminal Actions Tort: Weirum v. RKO (Third party injured by a driver racing to win a radio contest—radio owed a duty to 3 rd P) Criminal: ANN M. v. PACIFIC PLAZA SHOPPING CENTER (Woman assaulted in parking lot of Plaza—Plaza owed no duty absent prior similar incidents.) 66

68 67 Negligence—Breach Determine the standard Examine conduct to see if it falls below standard

69 68 Standard of Care Absent special circumstances: How a reasonable person would act under the same or similar circumstances

70 69 Special Circumstances Mental deficiency—Not considered Physical disability—Is considered Exceptions Children Reasonable “child” Emergency Remember Good Samaritan Laws Professionals

71 70 Professionals “Locality rule” Standard in community Not followed in California

72 Government Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. (b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person. Gov Code

73 Liability for Acts of Employees (a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. Gov Code /

74 Government Liability for Dangerous Conditions Not based on “Negligence” but on Code (Gov. 835 et seq) Must show: a dangerous condition; causation; foreseeable risk and either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. 73

75 Notice: (a) actual knowledge of the existence of the condition and knew or should have known of its dangerous character. (b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. 74

76 Due Care: Evidence includes but is not limited to (1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property. (2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition. 75

77 76 Malpractice Medical Legal Other

78 77 Types of Conduct Failure to have skills Failure to use good judgment Failure to ask for essential information Failure to make referral Failure to keep abreast of changes Failure to follow up Failure to adhere to specialist standard Failure to get informed consent

79 78 Standard of Care Skill and learning commonly possessed by members of the profession “Locality Rule” Emergency Situations Good Samaritan Statutes Proving the standard of care

80 79 NEGLIGENCE PER SE Violation of statute Statute meant to relate to conduct (regulatory vs. revenue) Causal link between violation and harm Plaintiff member of class meant to be protected

81 80 Guest Statutes Limit liability of driver to “guest” passengers Abolished in California

82 81 Res Ipsa Loquitur Way of proving breach of duty without showing defendant’s conduct I.e. Scissors left in surgery patient

83 82 Res Ipsa Loquitur Thing causing injury is in exclusive custody or control of defendant Injury is of type that does not occur without someone’s negligence Plaintiff did not voluntarily contribute to own injury Defendant more able to explain Only when more than one potential defendant

84 83 NEGLIGENCE--CAUSATION Actual Cause Proximate Cause

85 84 Actual Cause But for test (sine qua non) Usually only one defendant Substantial Factor Usually more than one defendant who contribute to accident Toxic torts

86 85 Example—Auto Accident X goes through intersection with green light and is hit by Y who runs a red light X goes through intersection with green light. The red light facing Y is not operating

87 86 Problem Areas Medical malpractice—failure to diagnose Product liability—design defects

88 87 PROXIMATE CAUSE The fact that defendant’s conduct is so closely connected to the plaintiff’s injuries that the defendant should be held liable Generally decided by “foreseeability”

89 88 NEGLIGENCE AND ORDINARY CARE- DEFINITIONS Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. It is the failure to use ordinary or reasonable care. Ordinary or reasonable care is that care which persons of ordinary prudence would use | TOP || TOP | JURY INSTRUCTION 3.11

90 89 JURY INSTRUCTION 3.11 A TEST FOR DETERMINING THE QUESTION OF NEGLIGENCE One test that is helpful in determining whether or not a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, [he] [or] [she] would have foreseen or anticipated that someone might have been injured by or as a result of [his] [or] [her] action or inaction. If the answer to that question is "yes", and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence.

91 90 JURY INSTRUCTION DUTY TO ANTICIPATE CRIMINAL CONDUCT OF THIRD PERSON When the circumstances are such that the possibility of harm caused by the criminal conduct of a third person is, or in the exercise of due care should be, reasonably foreseeable, it is negligence to fail to use reasonable care to prevent such criminal act from causing [injury] [damage].

92 91 JURY INSTRUCTION 3.35 STANDARD OF CONDUCT FOR MINOR A minor is not held to the same standard of care as an adult. A minor is required to exercise the degree of care which ordinarily is exercised by minors of like maturity, intelligence and capacity under similar circumstances. You must determine whether the conduct of [plaintiff] [defendant] _____________________ was such as might reasonably have been expected of a minor of like maturity, intelligence and capacity, acting under similar circumstances

93 92 JURY INSTRUCTION 3.36 IMPAIRED PHYSICAL FACULTIES- AMOUNT OF CAUTION The amount of caution required of a person whose physical faculties are impaired is the care which a person of ordinary prudence with similarly impaired faculties would use under circumstances similar to those shown by the evidence

94 93 JURY INSTRUCTION 3.76 CAUSE--SUBSTANTIAL FACTOR TEST The law defines cause in its own particular way. A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm.

95 94 JURY INSTRUCTION 3.77 CONCURRING CAUSES There may be more than one cause of an injury. When negligent conduct of two or more personsor negligent conduct and a defective product contribute concurrently as causes of an injury,the conduct of each is a cause of the injury regardless of the extent to which each contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. [It is no defense that the negligent conduct of a person not joined as a party was also a cause of the injury]

96 95 WHEN THIRD PARTY'S INTERVENING NEGLIGENCE IS NOT A SUPERSEDING CAUSE If you find that defendant [__________ (first actor)] was negligent and that such negligence was a substantial factor in bringing about an injury to the plaintiff but that the immediate cause of the injury was the negligent conduct of [a third person] [defendant __________ (second actor)], the defendant [__________ (first actor)] is not relieved of liability for such injury if: 1. At the time of such conduct defendant [__________ (first actor)] realized or reasonably should have realized that [a third person] [defendant [__________ (second actor)] might so act; [or the risk of harm suffered was reasonably foreseeable]; or 2. A reasonable person knowing the situation existing at the time of the conduct of the [third person] [defendant __________ (second actor)] would not have regarded it as highly extra-ordinary that the [third person] [defendant __________ (second actor)] had so acted; or 3. The conduct of the [third person] [defendant __________ (second actor)] was not extraordinarily negligent and was a normal consequence of the situation created by defendant [__________ (first actor)]. [Extraordinary means unforeseeable, unpredictable, and statistically extremely improbable.]

97 96 JURY INSTRUCTION 3.80 WHEN PRECISE CAUSE CANNOT BE IDENTIFIED If the plaintiff establishes by a preponderance of the evidence all of the facts necessary to prove (1) that each of the defendants was negligent, and (2) that the negligent act of one of the defendants was a cause of plaintiff's injury, and (3) that the injury was such that it could only result from the negligent act of one of the defendants, and (4) that from the circumstances of the accident the plaintiff cannot reasonably establish which defendant's negligence was a cause of the injury, then you will find that each defendant is liable for plaintiff's injury. However, under such circumstances, a defendant is not liable if [he] [she] establishes by a preponderance of the evidence all of the facts necessary to prove that [his] [her] negligence was not a cause of plaintiff's injury

98 97 Proximate Cause--Analysis Direct Causation Usually proximate cause exists Intervening Cause Dependent Intervening Cause Usually proximate cause exists Independent Intervening Cause Proximate cause may or may not exist

99 98 Intervening Causes--Dependent Dependent on original tortfeasor Rescue Med care/malpractice Escape attempts Liability usually exists

100 99 Intervening Causes-Independent Foreseeable—Liability Exists Foreseeable negligence of others Foreseeable criminal activity of others Not Foreseeable—Superseding Acts of God Unforeseeable acts of others Gross med mal

101 100 Dram shop Act—Calif. Cal Civ. Code §1714 (b) (c) Furnishing alcohol does is not proximate cause of injury to others Exception: Minors

102 101 Eggshell Rule You take your plaintiff as you find him Liability extends to all injuries

103 102 Damages Compensatory General Special Punitive Nominal

104 103 General Damages Pain and suffering Loss of use of limb Scarring Loss of society and companionship

105 104 Special Damages Out of pocket expenses—past and future Future: Must be reasonably certain

106 105 Collateral Source Rule Plaintiff is entitled to special damages without regard to payment from another source Defendant shouldn’t benefit from Plaintiff’s insurance or other benefits Collateral Source may seek reimbursement (subrogation)

107 106 Punitive (Exemplary) Damages Cal Civ Code 3294 Oppression, fraud, malice

108 107 1)"Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. 2)"Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. 3)"Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

109 108 Expenses of Litigation Costs Attorney Fees Contingent Fees California Rules Limited Fees—Minors and Med Malpractice

110 109 Property Damage Fair market value Not replacement

111 110 Loss of Consortium Derivative claim of spouse Not allowed for children in California (but parents can sue for medical bills)

112 111 Assessment of Damages Medical Copies of all bills Med reports Compulsory Medical Exam Loss of consortium Loss Wages Employed by another Self-employed

113 112 Wrongful Death Survival statute vs. Wrongful Death Survival—Injured (deceased) claim survives In California only special damages survive Wrongful Death Action by heirs More common action

114 113 Wrongful Death Damages Loss of society and comfort Loss of monetary contribution

115 114 Calculating Damages Future Damages Adjust for inflation Discount for present value Structured settlement Often involve annuities

116 115 Mitigation of Damages

117 116 Emotional Distress Physical injury often required Traditional Exceptions: corpses; collection agencies; mistransmission of message California: If conduct is such that one could easily believe mental distress Witnesses/Bystanders: Zone of danger or close relative

118 117 Defenses to Negligence Contributory Negligence—Complete Bar Comparative Negligence-Reduces Recovery Assumption of Risk –Bar Immunity – Bar S.O.L. - Bar

119 118 Contributory Negligence Abolished in California in Li v. Yellow Cab Exceptions to Rule (where it exists) Last Clear Chance

120 119 Comparative Negligence Pure Comparative (California) 50% Rule

121 120 Assumption of Risk Willingly taking a chance that harm will occur California: If Assumption of Risk is a form of contributory negligence, it is treated like comparative negligence and reduces recovery rather than bar all recovery Non-contrib Assumption of Risk still exists in Californi

122 121 Assumption of Risk Express Assumption Signing a release Implied Assumption of Risk Conduct Reasonable (RIAR) vs. Unreasonable Unreasonable = Comparative Negligence

123 122 Assumption of Risk—Calif. Knight vs. Jewitt Primary vs. Secondary Primary Situations where Def owes no duty of care Dangerous sports or other activities Secondary Where D owes a duty of care and breaches it Usually a form of comparative negligence

124 123 Immunity Governmental Federal torts Claim Act allows many suits but disallows some  Disallowed: discretionary acts; misdelivery of mail, intentional torts State: California Government Code 815 Local Government— Public officials

125 124 Immunity Interspousal—generally abolished But generally excepted from insurance coverage Parent-Child

126 125 Statutes of Limitations CCP 312 et seq

127 126 S.O.L Special Statutes exist for: Domestic violence Exposure to asbestos Actions against convicted felons (related to conviction Minor for birth or pre-birth injuries Legal Malpractice Medical Malpractice Dalkon Shield

128 CCP Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another 127

129 128 CCP 340 Within one year: 3) Libel, slander, false imprisonment, seduction of a person below the age of legal consent,

130 129 Childhood Sexual Abuse In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later, for any of the following actions:

131 Legal Malpractice—CCP year from date of discovery or 4 years from wrongdoing whichever occurs first Several exceptions 130

132 Medical Malpractice CCP year from date of discovery or 3 years from malpractice whichever occurs first Special Statutes for children: actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period Several Exceptions to both! 131

133 132 Tolling of Statute Absence of Defendant Minority or insanity Not if Defendant is government Imprisonment Not if Def. Is government Order of Restitution

134 133 Claim/Notice Requirements Suits against public entity Suits against deceases Suits against doctors—notice only

135 134 Damages (a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage. (b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000).

136 135 Defenses to Malpractice Same as to negligence Statutes of Limitation are often problems

137 136 Legal Malpractice Must prove the underlying case in addition to legal malpractice

138 137 Misrepresentation Intentional—Fraud Negligent Innocent

139 138 Fraud Misrepresentation of Fact Intent to induce other party of rely on fact Knowledge of Falsity Justifiable reliance by other party Damages

140 139 Misrepresentation of Fact Misstatement Failure to disclose where duty exists Fiduciary relationship California real estate laws Fact Not judgment, value, opinion Exception; Expert

141 140 Intent Knowledge or knowledge that you don’t know

142 141 Proximate Cause/Reliance Victim must justifiably rely on representation

143 142 Negligent Misrepresentation All elements the same except intent Statement negligently made Real estate brokers

144 143 Innocent Misrepresentation Generally no tort action

145 144 Relationship to Contract Law Any misrepresentation is grounds to disaffirm the contract

146 145 Environmental/Toxic Torts Private Actions Damages, Injunctions State A.G./District Attorney Injunctions, Civil Penalties, Criminal Private A.G. Actions EPA/U.S. Department of Justice

147 146 Environmental/Toxic Torts Negligence Negligence Per se (State and Federal) Nuisance Strict Liability Ultrahazardous Activities Product

148 147 Nuisance Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

149 148 Public Nuisance A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. Cal Civ. 3480

150 149 Private Nuisance Every nuisance not included in the definition of the last section is private.

151 150 Strict Liability Liability without fault Abnormally dangerous (ultrahazardous activities) Animals Products

152 151 Animals Trespassing animals Non-trespassing—only if dangerous Inherently dangerous Known dangerous propensities California Statute

153 152 California Statute—Dog Bite (a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner' s knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner.

154 153 Abnormally Dangerous Activities High degree of risk Risk of serious harm Risk cannot be eliminated Not common activity Inappropriateness Value

155 154 Examples Abnormally dangerous Crop dusting Poisonour gasses Not Dangerous Airplanes Irrigation dam Falling tree

156 155 Product Liability Not a Tort Refers to Injuries caused by a product Based on Torts of: Negligence Strict Liability Based on contract warranties

157 156 Damages Personal Injuries Property Damage Not Economic Exception for recovery based on contract

158 157 Negligence Traditional concepts apply Negligence in manufacture, design, packaging, inspection Manufacturer responsible for component parts Based on fault Privity –not required Damages—not economic

159 158 Warranty Hybrid tort and contract Express or Implied

160 159 Strict Liability Manufacturer and retailer are strictly liabile for injuries resulting from defective product. Rationale: Risk Assignment

161 160 Cause of Action Product sold Product defective Product caused injuries Defect existed at time product left defendant’s hands Item manufactured or sold by defendant

162 161 Possible Plaintiffs Purchaser User Bystander

163 162 Types of Defects Manufacture Design Warning Structural Defects Lack of Safety Features

164 163 Defenses Negligence: Comparative Assumption of Risk Warranty Disclaimer

165 164 Defenses-Strict Liability Assumption of risk Unforeseeable use of product

166 165 Defenses to all Product Liability Statute of limitations

167 166 Defamation Invasion of reputation of person or group resulting from libel or slander Cal. Civ. Code §44 et seq

168 167 New York Times v. Sullivan Added constitutional element to defamation Deals with Public Officials (later cases extended to public figures) Requires actual malice Knowledge of falsity Reckless disregard for truth

169 168 Libel 45. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.

170 169 Libel 45a. A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.

171 170 Slander 46. Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; 4. Imputes to him impotence or a want of chastity; or 5. Which, by natural consequence, causes actual damage.

172 171 Special Harm—Special Damages Not Required Libel California limits to libelous on face Slander per se Required Slander (except for slander per se) Calif: Libelous but not on its face Matters of Public Concern

173 172 Libelous on face/Slander per se Allegations that plaintiff Engaged in criminal activity Suffers venereal or other such disease Unfit to conduct business Sexual misconduct

174 173 Elements of Cause of Action Reputation harmed Statement interpreted as referring to plaintiff One interpretation must be defamatory False statement Publication Malice if required

175 174 The Statement Tendency to harm reputation Reasonable interpretation Statement must be False Statement of fact not opinion Refer to a living person

176 175 Publication Read or heard or seen by someone other than plaintiff Every repetition is also a publication Malice if public figure

177 176 Public Figures Politicians Performers People cast into limelight or news

178 177 Damages Pecuniary loss (specials) Non-pecuniary (general damages) Punitive--Malice

179 178 Retraction Statutes Cal Civ. Code 48a For general damages against newspaper or radio, plaintiff must request retraction w/20 days of learning of libel Publisher has 3 weeks to retract

180 179 Privileges Privilege: Allows one to make defamatory statement w/o liability. Cal. Civ. Code 47 Discharge of official duty Judicial Proceedings Legislative proceedings Official proceeding authorized by law Communication, without malice, to one interested  Includes job references

181 180 Invasion of Privacy Appropriation of Plaintiff’s name for defendant’s financial gain Public disclosure of private life Unreasonable intrusion False Light

182 181 Defamation--Property Trade Libel False statement about business or goods Slander of Title False statement in reference to property rights

183 Handling the P.I. Case Attorney’s Role

184 The P.I. Case No “cappers” or “ambulance chasing” The initial interview Determine factual basis for cause of action Not always possible Names/info re witnesses Insurance information (P and D) Injury information Retainer Agreement/Letter Must be in writing Set out scope of representation Establish attorney fees Establish liability for costs Written summary of interview

185 The P.I. Case cont. Completing the initial interview Advice/information to client Calendaring (tickling) for SOL and other dates Letter to D’s insurance (or to D if insurance unknown) If D has no insurance, then verify U.M. coverage Investigation Sometimes private investigators Obtain copies of police reports Interview witnesses Locate other witnesses? Relevant photographs Google searches? (i.e. NTSB/NHTSB)

186 The P.I. Case cont. When medical treatment ends, settlement negotiations Demand letter Informal face to face negotiation Settlement Compromise and Release (C and R) Settlement check Trust account issues Disbursement: Liens, attorney fees and costs, client

187 186 CCPm877.7—Determination of Good Faith Any party entitled to court hearing before commencement of trial or Settling party can give notice to all of settlement and application for determination of good faith or settlement Opposing parties can then file a motion Court can decide on affidavits Appealable through writ of mandate

188 187 Demand Letter Offer to settle case Basis of liability Special Damages Injuries Always attach copies of specials and medical report

189 Issues with a Minor Plaintiff Court approval required for Attorney fees (generally limited) Settlement (Minor’s Compromise) Judicial Council Form Often court hearing required Lawsuits: Guardian ad Litem Must be appointed Usually a parent Judicial Council Form

190 189 P.I. Litigation Pre-Litigation Claim/Notice Statutes Government Entity– Gov Code 900 et seq.  Gov. Code 800 et seq = California Tort Claim Act Decedents—Prob. Code § Allows Plaintiff to proceed against insurance company rather than estate if claim is within policy limits; serve insurance company --Medical malpractice—90 day notice

191 Litigation—State Court File/present all claims File Complaint Optional Judicial Council Forms Auto Accidents, Product Liability, Premises Liability, General Negligence County where accident happened or defendant resides Prayer Issues with a Minor Plaintiff: Petition for Guardian ad Litem Have Summons Issued

192 Service Personal Substituted Acknowledgement and Waiver Publication Out of State

193 Responsive Pleadings Answer Optional Judicial Council Form Demurrer Motions Cross Complaints Answers/ demurrers/motions Time for Response

194 Discovery: CCP 2016 et seq. Interrogatories: Judicial Council Form+35 Specially Prepared Demand for Production/Inspection Depositions Party or Non Party Records Demand for Medical Exam Request for Admissions: Judicial Council Form Exchange of Expert Information

195 Discovery—Limited Jurisdiction CCP §94 Combination of 35 Interrogatories, Demands to Produce and Admissions One deposition per party Med Exam and Expert Disclosure Case Questionnaire Request for Statement Identifying Witnesses and Evidence

196 Pre Trial Proceedings Alternative Dispute Resolution (Arbitration, Mediation, NE etc.) Case Management Conferences Settlement Conferences CCP 998 Offers

197 Pre trial motions Summary Judgment Motion (CCP 437c) Common defense motion “plaintiff can’t prove case” Typical motion papers + Statement of Undisputed Facts

198 Trial Procedures Trial Notebook Prepare proposed jury instructions (CACI—www.courts.ca.gov) Subpoena witnesses Subpoena documents Notify Experts

199 Post Trial Procedures Motions New Trial; Judgment N.O.V.; Additur, Remittitur Collection Appeal

200 Litigation Alternatives Binding Arbitration U.M. Agreement Many medical practitioners include in forms American Arbitration Association

201 200 html

202 201 Vicarious Liability Liability for torts of another even though no fault of one’s own A form of strict liability Respondeat Superior

203 202 Employer-Employee Employer vicariously liable for torts of employee committed in course and scope of employment Negligent torts Strict Liability torts Intentional Torts Only if in furtherance of employer’s business

204 203 Scope of Employment No liability if employee on “frolic of his own” Liability resumes when employee returns to job I.e. detours

205 204 Employers-Independent Contractors Independent Contractor defined: hired to produce a result; all actions not subject to control; label not important General Rule—No liability Exceptions Nondelegable duties—owners of land Peculiar Risk Doctrine Illegal Acts Physicians—not in California

206 205 Statutory Vicarious Liability Owners of Automobiles Parents Veh. Code Permissive drivers Veh. Code et seq Parents Civ. Code et seq.

207 206 Joint Venture/Partnership Agents of one another in pursuing joint venture or partnership business.

208 207 Joint and severally liable If two or more defendants acted jointly or concurrently to cause an indivisible harm, they are each liable to plaintiff for whole amount. Rule does not apply is harm apportionable Plaintiff can only recover once Rule has exceptions in California

209 208 California—Prop 51 Cal Civ Code Establishes several liability for non-economic damages Liability according to fault

210 209 Contribution CCP Right where judgment is joint Effect of Release ( 877) Must be in good faith Reduces liability of others Releases settling tortfeasor from all liability

211 210 Sliding Scale Settlements CCP Agreement between plaintiff and some defendants, but not all, limiting liability of the agreeing defendants to an amount which is dependent upon the amount of recovery which plaintiff is able to recover from the nonagreeing defendant

212 211 Sliding Scale Parties must promptly notify court At trial judge can disclose agreement to jury At least 72 hours prior to entering agreement, notice must be given to all non-settling defendants


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