7Tort vs. Crime Act--may be the same Purpose Standard of Proof Interest violatedProcedural rules
8Tort vs. Contract Contract = Agreement Tort = Obligation imposed by law
9Overview of Tort Case Investigation & Research (facts & law) Settlement efforts--demand lettercomplaint filedanswer/response filedcross-complaints/answersdiscoverytrialpost trial proceedings
10Preliminary Considerations Read chapters 3 & 4 in Nolo Press text
11Preliminary Considerations Fee ArrangementsContingent fee: fee v. costsStatutory limits: Minors, Medical Mal.Requirement of writingInvestigationPhotos of scene/autos/plaintiffWitness interviews & statementsPolice reportsIdentity of all defendantsSliding scale fees may not exceed 40% of the $ 50,000, 1/3 of the next $ 50,000, 25% of the next $ 500,000, and 15% of damages exceeding $ 600,000. (Bus. & Prof. §6146)
12Resources Go to class website www.deanza.edu/faculty/hames Access folder for “civil litigation”Access folder for California SupplementGo to Part 2—read chapter 3
13Preliminary Considerations, cont. Defendant—public entityLaw & Form: (read information on site)Under 10K and Caltrans—file with themNotify defendant/insuranceAdvice to plaintiffNecessity of medical liens
14Preliminary considerations The uninsured/underinsured defendantU.M. casesArbitrationAn Interesting Web site:Sliding scale fees may not exceed 40% of the $ 50,000, 1/3 of the next $ 50,000, 25% of the next $ 500,000, and 15% of damages exceeding $ 600,000. (Bus. & Prof. §6146)
15Insurance Automobile Homeowners/Personal Liability Product Errors and OmissionsUmbrella PoliciesResource:
17Plaintiff’s insurance Fault vs. No-Fault provisions Subrogation rights of no-fault provisions
18Bad Faith Claims Intentional Tort If insurance carrier unreasonably delays payment on policyIf insurance carrier acts unconscionably toward insuredCarrier engages in unfair claims practices
19Bad Faith First Party vs. Third Party claims Failure to pay claim within policy limits
20Avoiding Bad Faith by Carrier Reservation of rightsDeclaratory Relief Action
21Medical Records v. Report Records—Doctor or Hospital notesReport—Specially prepared by M.D. for purpose of litigation—contains prognosis and diagnosis ; Fee is charged for preparation
22Tort Liability—Cal. Civ. Code 1714. (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.
23Intentional Torts Intent intend consequences or result--not harm I.e. intentionally running a red lightI.e. pulling a chair out from someone
24Transferred Intent Substitute for intent T intends to punch A, but A ducks and T hits B
25Types of Intentional Torts Torts against PersonsBattery, Assault, False imprisonment, intentional inflict of mental distressDefamation (slander and libel); invasion of privacy; malicious prosecution and abuse of processTorts against Propertytrespass to land, trespass to chattels and conversion;Property includes intellectual property (infringement)
26Analyzing a Tort Every tort has unique elements this is what constitutes a “cause of action” or the prima facie right to sueEvery tort has defensesdefenses negate liability even though a “prima facie” case is presentDefenses are often confused and stated with the cause of action
27Battery--Cause of Action Harmful or offensivecontact or touching
28Contact Doesn’t always mean “touching” of two individuals Awareness of contact not necessary
29Harmful or Offensive Distinguish inadvertent touching Harmful or offensive = not wantedKissingMedical care
30Defenses Consent Capacity to consent Voluntariness Scope of consent Minority = sexual contact; medical treatmentMental capacityVoluntarinessScope of consentKnowing—Medical care—knowing all consequencesEmergency care
31Defenses Self-Defense Defense of Others Actual Reasonable Belief—MistakeLimit of force allowableDeadly force==prevent death or great bodily harmCalifornia “Make my day” statuteDefense of Others
32Defenses Defense of Property Regaining property Not deadly force Must be reasonable“Booby traps”—never allowedRegaining propertyFresh pursuitProperty taken wrongfully
33Assault Intentional Causing of Apprehension or fear Of harmful or offensiveContactDefendant must appear to have present ability to carry out threat
36Defenses Legal Right Shopkeeper’s Privilege—California Consent, etc. Police vs. Private CitizenShopkeeper’s Privilege—CaliforniaConsent, etc.
37Intentional Infliction of Emotional Distress Conduct must be outrageous or extremeThin-skinned plaintiffToday—often part of job/sex harassmentRequires some sort of “verification”I.e. psychiatrist
38Sexual Harrassment Cal Civ Code §§51.9, 52 (differs from sexual battery)
39Sexual Harassment—Cal Civ Code 51.9. (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.
40Sexual BatteryCCOffensive contact with intimate part of anotherOffensive contact—offends reasonable sense of personal dignityGeneral, special, punitive damages and injunctive
41Stalking CC 1708.7 Follow, alarm or harass General damages, special, punitive and injunctive
42Damages52. (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.
43Federal Statutes Employment Discrimination Civil Rights Violations 42 U.S.C. §§ 2000 et seqCivil Rights Violations42 U.S.C. §1983 et seqPrivate v. Gov’t Action
44DefamationUntrue statement that exposes a person to exposes any person to hatred, contempt, ridicule,LibelSlanderCal. Civ. Code 44 et seq.Public Figures: NY Times Case—requires malice
45Expectation of Privacy Causing harm to another by1. an intentional and offensive intrusion into the person’s private life, or2. an intentional disclosure of offensive or objectionable private facts not of public concern, or3. an intentional publication portraying the person in a false light, or4. the unauthorized use of person’s name or image for personal benefit
46Negligence Read chapter 2 in Nolo Press text Continue with reading chapter 7 on Web site
47NEGLIGENCE Elements of Cause of Action DUTYBREACH OF DUTYCAUSATION: ACTUAL AND PROXIMATEDAMAGES
48Jury Instructions www.netlawlibraries.com (CACI)Instructions 400 et seq
49Duty Is defendant under any obligation to protect plaintiff If so, what is that obligationWhether a duty is owed is a question of law—the judge and not jury decide this questionUnfortunately, many courts take different approaches and often confuse with proximate cause
50When a Duty Exists Direct relationship of Plaintiff and Defendant Relationship is very broad hereI.e. driver of car“Foreseeable Plaintiff”Created by StatuteI.e. owner of automobile
51HypotheticalS a shopper is attacked in parking lot of defendant shopping mall at night.Does mall owe her a duty?
52Special Situations of Duty Possessor of LandRescue DoctrinesSeller of LandUnborn ChildrenVicarious Liability
53Possessor’s of Land Common law view California View Depended on status of person coming on to propertyCalifornia ViewDoes not depend on status
54Common 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
55Rowland 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.
56Attractive Nuisance Doctrine Dangerous condition on defendant’s property that is likely to induce children to trespassCreates liability for homeowner to trespassing childNot needed in California because of Rowland v. Christian
57Sellers of Land Duty to Disclose defects Cal Civ Code 1102 et seq. All known defects
58Rescue Doctrine Under common law—no duty unless 1. Special relationship exists2. Defendant put plaintiff in perilous situation
59Special Relationships FamilyCommon carrierDefendant’s relationship with 3rd Party who causes harmTarasoff caseTavern Owner
60Emergency AssistanceOnce undertaken, the party must use due care even if a duty did not exist to begin withGood Samaritan StatutesCal. Civ. Proc. § trained in CPRCal Civ Proc § —Emergency FacilitiesLimit liability for negligence but not gross negligence
61Unborn Children Refers to c/a by child after birth for injury to Fetus Common law—no dutyMost courts recognize some liability today
62Vicarious LiabilityCommon law rule: Employer liable for torts of employee committed in course and scope of employment: Respondeat SuperiorExists in CaliforniaSpecial Statutory LiabilityOwner of Car—Amount limitedCC —liability of parent for child
63Cal Civ. CodeParent liable for willful tort of child up to 25K (to be adjusted for inflation)In addition to other remediesParent might also be liable for own tort, I.e. negligent failure to supervise
64Cal Civ CodeParent liable for damages caused by child firing a gun –up to 30KAlso liability for own tort
65Tavern 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
66Acts 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 3rd P)Criminal: ANN M. v. PACIFIC PLAZA SHOPPING CENTER(Woman assaulted in parking lot of Plaza—Plaza owed no duty absent prior similar incidents.)
67Negligence—Breach Determine the standard Examine conduct to see if it falls below standard
68Standard of Care Absent special circumstances: How a reasonable person would act under the same or similar circumstances
70Professionals “Locality rule” Standard in community Not followed in California
71Government 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 815
72Liability 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 / 820
73Government 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.
74Notice:835.2. (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.
75Due 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.
77Types of Conduct Failure to have skills Failure to use good judgment Failure to ask for essential informationFailure to make referralFailure to keep abreast of changesFailure to follow upFailure to adhere to specialist standardFailure to get informed consent
78Standard of CareSkill and learning commonly possessed by members of the profession“Locality Rule”Emergency SituationsGood Samaritan StatutesProving the standard of care
79NEGLIGENCE PER SE Violation of statute Statute meant to relate to conduct(regulatory vs. revenue)Causal link between violation and harmPlaintiff member of class meant to be protected
80Guest Statutes Limit liability of driver to “guest” passengers Abolished in California
81Res Ipsa LoquiturWay of proving breach of duty without showing defendant’s conductI.e. Scissors left in surgery patient
82Res Ipsa LoquiturThing causing injury is in exclusive custody or control of defendantInjury is of type that does not occur without someone’s negligencePlaintiff did not voluntarily contribute to own injuryDefendant more able to explainOnly when more than one potential defendant
83NEGLIGENCE--CAUSATION Actual CauseProximate Cause
84Actual Cause But for test (sine qua non) Substantial Factor Usually only one defendantSubstantial FactorUsually more than one defendant who contribute to accidentToxic torts
85Example—Auto Accident X goes through intersection with green light and is hit by Y who runs a red lightX goes through intersection with green light. The red light facing Y is not operating
86Problem Areas Medical malpractice—failure to diagnose Product liability—design defects
87PROXIMATE CAUSEThe fact that defendant’s conduct is so closely connected to the plaintiff’s injuries that the defendant should be held liableGenerally decided by “foreseeability”
88NEGLIGENCE 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 |JURY INSTRUCTION 3.11
89JURY INSTRUCTION 3.11A 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.
90JURY INSTRUCTIONDUTY 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].
91JURY INSTRUCTION 3.35STANDARD 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
92JURY INSTRUCTION 3.36IMPAIRED 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
93JURY INSTRUCTION 3.76CAUSE--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.
94JURY INSTRUCTION 3.77CONCURRING 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]
95WHEN 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.]
96JURY INSTRUCTION 3.80WHEN 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
97Proximate Cause--Analysis Direct CausationUsually proximate cause existsIntervening CauseDependent Intervening CauseIndependent Intervening CauseProximate cause may or may not exist
98Intervening Causes--Dependent Dependent on original tortfeasorRescueMed care/malpracticeEscape attemptsLiability usually exists
99Intervening Causes-Independent Foreseeable—Liability ExistsForeseeable negligence of othersForeseeable criminal activity of othersNot Foreseeable—SupersedingActs of GodUnforeseeable acts of othersGross med mal
100Dram shop Act—Calif. Cal Civ. Code §1714 (b) (c) Furnishing alcohol does is not proximate cause of injury to othersException: Minors
101Eggshell Rule You take your plaintiff as you find him Liability extends to all injuries
103General Damages Pain and suffering Loss of use of limb Scarring Loss of society and companionship
104Special Damages Out of pocket expenses—past and future Future: Must be reasonably certain
105Collateral Source Rule Plaintiff is entitled to special damages without regard to payment from another sourceDefendant shouldn’t benefit from Plaintiff’s insurance or other benefitsCollateral Source may seek reimbursement (subrogation)
106Punitive (Exemplary) Damages Cal Civ Code 3294Oppression, fraud, malice
107"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."Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights."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.
108Expenses of Litigation CostsAttorney FeesContingent FeesCalifornia RulesLimited Fees—Minors and Med Malpractice
116Emotional Distress Physical injury often required Traditional Exceptions: corpses; collection agencies; mistransmission of messageCalifornia: If conduct is such that one could easily believe mental distressWitnesses/Bystanders: Zone of danger or close relative
117Defenses to Negligence Contributory Negligence—Complete BarComparative Negligence-Reduces RecoveryAssumption of Risk –BarImmunity – BarS.O.L. - Bar
118Contributory Negligence Abolished in California in Li v. Yellow CabExceptions to Rule (where it exists)Last Clear Chance
119Comparative Negligence Pure Comparative (California)50% Rule
120Assumption 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 recoveryNon-contrib Assumption of Risk still exists in Californi
121Assumption of Risk Express Assumption Implied Assumption of Risk Signing a releaseImplied Assumption of RiskConductReasonable (RIAR) vs. UnreasonableUnreasonable = Comparative Negligence
122Assumption of Risk—Calif. Knight vs. JewittPrimary vs. SecondaryPrimarySituations where Def owes no duty of careDangerous sports or other activitiesSecondaryWhere D owes a duty of care and breaches itUsually a form of comparative negligence
123Immunity Governmental Federal torts Claim Act allows many suits but disallows someDisallowed: discretionary acts; misdelivery of mail, intentional tortsState: California Government Code 815Local Government—Public officials
124Immunity Interspousal—generally abolished Parent-Child But generally excepted from insurance coverageParent-Child
126S.O.L Special Statutes exist for: Domestic violence Exposure to asbestosActions against convicted felons (related to convictionMinor for birth or pre-birth injuriesLegal MalpracticeMedical MalpracticeDalkon Shield
127CCP 335.1Within 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
128CCP 340Within one year:3) Libel, slander, false imprisonment, seduction of a person below the age of legal consent,
129Childhood 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:
130Legal Malpractice—CCP 340.6 1 year from date of discovery or 4 years from wrongdoing whichever occurs firstSeveral exceptions
131Medical Malpractice CCP 340.5 1 year from date of discovery or 3 years from malpractice whichever occurs firstSpecial 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 periodSeveral Exceptions to both!
132Tolling of Statute Absence of Defendant Minority or insanity Not if Defendant is governmentImprisonmentNot if Def. Is governmentOrder of Restitution
133Claim/Notice Requirements Suits against public entitySuits against deceasesSuits against doctors—notice only
134Damages(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).
135Defenses to Malpractice Same as to negligenceStatutes of Limitation are often problems
136Legal MalpracticeMust prove the underlying case in addition to legal malpractice
138Fraud Misrepresentation of Fact Intent to induce other party of rely on factKnowledge of FalsityJustifiable reliance by other partyDamages
139Misrepresentation of Fact MisstatementFailure to disclose where duty existsFiduciary relationshipCalifornia real estate lawsFactNot judgment, value, opinionException; Expert
140IntentKnowledge or knowledge that you don’t know
141Proximate Cause/Reliance Victim must justifiably rely on representation
142Negligent Misrepresentation All elements the same except intentStatement negligently madeReal estate brokers
143Innocent Misrepresentation Generally no tort action
144Relationship to Contract Law Any misrepresentation is grounds to disaffirm the contract
145Environmental/Toxic Torts Private ActionsDamages, InjunctionsState A.G./District AttorneyInjunctions, Civil Penalties, CriminalPrivate A.G. ActionsEPA/U.S. Department of Justice
146Environmental/Toxic Torts NegligenceNegligence Per se (State and Federal)NuisanceStrict LiabilityUltrahazardous ActivitiesProduct
147NuisanceAnything 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.
148Public NuisanceA 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
149Private NuisanceEvery nuisance not included in the definition of the last section is private.
150Strict Liability Liability without fault Abnormally dangerous (ultrahazardous activities)AnimalsProducts
152California Statute—Dog Bite 3342. (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.
153Abnormally Dangerous Activities High degree of riskRisk of serious harmRisk cannot be eliminatedNot common activityInappropriatenessValue
154Examples Abnormally dangerous Not Dangerous Crop dusting Poisonour gassesNot DangerousAirplanesIrrigation damFalling tree
155Product Liability Not a Tort Refers to Injuries caused by a product Based on Torts of:NegligenceStrict LiabilityBased on contract warranties
156Damages Personal Injuries Property Damage Not Economic Exception for recovery based on contract
157Negligence Traditional concepts apply Negligence in manufacture, design, packaging, inspectionManufacturer responsible for component partsBased on faultPrivity –not requiredDamages—not economic
158WarrantyHybrid tort and contractExpress or Implied
159Strict LiabilityManufacturer and retailer are strictly liabile for injuries resulting from defective product.Rationale: Risk Assignment
160Cause of Action Product sold Product defective Product caused injuries Defect existed at time product left defendant’s handsItem manufactured or sold by defendant
162Types of Defects Manufacture Design Warning Structural Defects Lack of Safety Features
163Defenses Negligence: Warranty Comparative Assumption of Risk Disclaimer
164Defenses-Strict Liability Assumption of riskUnforeseeable use of product
165Defenses to all Product Liability Statute of limitations
166DefamationInvasion of reputation of person or group resulting from libel or slanderCal. Civ. Code §44 et seq
167New York Times v. Sullivan Added constitutional element to defamationDeals with Public Officials (later cases extended to public figures)Requires actual maliceKnowledge of falsityReckless disregard for truth
168Libel45. 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.
169Libel45a. 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.
170Slander46. 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.
171Special Harm—Special Damages Not RequiredLibelCalifornia limits to libelous on faceSlander per seRequiredSlander (except for slander per se)Calif: Libelous but not on its faceMatters of Public Concern
172Libelous on face/Slander per se Allegations that plaintiffEngaged in criminal activitySuffers venereal or other such diseaseUnfit to conduct businessSexual misconduct
173Elements of Cause of Action Reputation harmedStatement interpreted as referring to plaintiffOne interpretation must be defamatoryFalse statementPublicationMalice if required
174The Statement Tendency to harm reputation Reasonable interpretation Statement must be FalseStatement of fact not opinionRefer to a living person
175Publication Read or heard or seen by someone other than plaintiff Every repetition is also a publicationMalice if public figure
176Public Figures Politicians Performers People cast into limelight or news
177Damages Pecuniary loss (specials) Non-pecuniary (general damages) Punitive--Malice
178Retraction Statutes Cal Civ. Code 48a For general damages against newspaper or radio, plaintiff must request retraction w/20 days of learning of libelPublisher has 3 weeks to retract
179PrivilegesPrivilege: Allows one to make defamatory statement w/o liability.Cal. Civ. Code 47Discharge of official dutyJudicial ProceedingsLegislative proceedingsOfficial proceeding authorized by lawCommunication, without malice, to one interestedIncludes job references
180Invasion of PrivacyAppropriation of Plaintiff’s name for defendant’s financial gainPublic disclosure of private lifeUnreasonable intrusionFalse Light
181Defamation--Property Trade LibelFalse statement about business or goodsSlander of TitleFalse statement in reference to property rights
183The P.I. Case No “cappers” or “ambulance chasing” The initial interviewDetermine factual basis for cause of actionNot always possibleNames/info re witnessesInsurance information (P and D)Injury informationRetainer Agreement/LetterMust be in writingSet out scope of representationEstablish attorney feesEstablish liability for costsWritten summary of interview
184The P.I. Case cont. Completing the initial interview Advice/information to clientCalendaring (tickling) for SOL and other datesLetter to D’s insurance (or to D if insurance unknown)If D has no insurance, then verify U.M. coverageInvestigationSometimes private investigatorsObtain copies of police reportsInterview witnessesLocate other witnesses?Relevant photographsGoogle searches? (i.e. NTSB/NHTSB)
185The P.I. Case cont.When medical treatment ends, settlement negotiationsDemand letterInformal face to face negotiationSettlementCompromise and Release (C and R)Settlement checkTrust account issuesDisbursement: Liens, attorney fees and costs, client
186CCPm877.7—Determination of Good Faith Any party entitled to court hearing before commencement of trial orSettling party can give notice to all of settlement and application for determination of good faith or settlementOpposing parties can then file a motionCourt can decide on affidavitsAppealable through writ of mandate
187Demand Letter Offer to settle case Basis of liability Special Damages InjuriesAlways attach copies of specials and medical report
188Issues with a Minor Plaintiff Court approval required forAttorney fees (generally limited)Settlement (Minor’s Compromise)Judicial Council FormOften court hearing requiredLawsuits: Guardian ad LitemMust be appointedUsually a parent
189P.I. Litigation Pre-Litigation Claim/Notice Statutes Government Entity– Gov Code 900 et seq.Gov. Code 800 et seq = California Tort Claim ActDecedents—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
190Litigation—State Court File/present all claimsFile ComplaintOptional Judicial Council FormsAuto Accidents, Product Liability, Premises Liability, General NegligenceCounty where accident happened or defendant residesPrayerIssues with a Minor Plaintiff: Petition for Guardian ad LitemHave Summons Issued
191Service Personal Substituted Acknowledgement and Waiver Publication Out of State
192Responsive Pleadings Answer Demurrer Motions Cross Complaints Optional Judicial Council FormDemurrerMotionsCross ComplaintsAnswers/ demurrers/motionsTime for Response
193Discovery: CCP 2016 et seq.Interrogatories: Judicial Council Form+35 Specially PreparedDemand for Production/InspectionDepositionsParty or Non PartyRecordsDemand for Medical ExamRequest for Admissions: Judicial Council FormExchange of Expert Information
194Discovery—Limited Jurisdiction CCP §94Combination of 35 Interrogatories, Demands to Produce and AdmissionsOne deposition per partyMed Exam and Expert DisclosureCase QuestionnaireRequest for Statement Identifying Witnesses and Evidence
201Vicarious LiabilityLiability for torts of another even though no fault of one’s ownA form of strict liabilityRespondeat Superior
202Employer-EmployeeEmployer vicariously liable for torts of employee committed in course and scope of employmentNegligent tortsStrict Liability tortsIntentional TortsOnly if in furtherance of employer’s business
203Scope of Employment No liability if employee on “frolic of his own” Liability resumes when employee returns to jobI.e. detours
204Employers-Independent Contractors Independent Contractor defined: hired to produce a result; all actions not subject to control; label not importantGeneral Rule—No liabilityExceptionsNondelegable duties—owners of landPeculiar Risk DoctrineIllegal ActsPhysicians—not in California
205Statutory Vicarious Liability Owners of AutomobilesParents Veh. Code 17707Permissive drivers Veh. Code et seqParents Civ. Code et seq.
206Joint Venture/Partnership Agents of one another in pursuing joint venture or partnership business.
207Joint 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 apportionablePlaintiff can only recover onceRule has exceptions in California
208California—Prop 51 Cal Civ Code 1430-1432 Establishes several liability for non-economic damagesLiability according to fault
209Contribution CCP875-880 Right where judgment is joint Effect of Release ( 877)Must be in good faithReduces liability of othersReleases settling tortfeasor from all liability
210Sliding Scale Settlements CCP 877.5Agreement 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
211Sliding Scale Parties must promptly notify court At trial judge can disclose agreement to juryAt least 72 hours prior to entering agreement, notice must be given to all non-settling defendants