TORT: A wrongful injury to a person or his/her property. Or A civil wrong against another
Person may include an actual living person or a business, such as a partnership or corporation.
BROAD CATEGORIES OF TORT LAW: NEGLIGENCE INTENTIONAL TORTS STRICT LIABILITY DEFENSES + Special Tort Actions
Negligence Actions Covered Simple Negligence Simple Negligence Negligent Infliction of Emotional Distress Negligent Infliction of Emotional Distress Res Ipsa Loquitor Res Ipsa Loquitor Negligence per se Negligence per se Premises Liability Premises Liability Vicarious Liability Vicarious Liability
Intentional torts covered Assault Assault Battery Battery False Imprisonment False Imprisonment Intentional Infliction of Emot. Distress Intentional Infliction of Emot. Distress Fraud and Misrepresentation Fraud and Misrepresentation Abuse of Process Abuse of Process Invasion of Privacy Invasion of Privacy Defamation Defamation Trespass to land Trespass to land Trespass to chattel Trespass to chattel Conversion Conversion
Special Tort Actions Covered Nuisances Nuisances –Private –Public
ORDINARY CARE: That degree of care that would be exercised by a reasonably prudent person under the same or similar circumstances. Stepping Back…
Put differently, Negligence is: Doing something that a reasonably careful person would not do (a negligent act) Doing something that a reasonably careful person would not do (a negligent act) OR Failing to do something that a reasonably careful person would do (a negligent omission). Failing to do something that a reasonably careful person would do (a negligent omission).
COMMON ELEMENTS OF ALL TORT CASES: DUTY BREACH OF DUTY CAUSATION DAMAGES
Accountability: Protecting persons and property Accountability: Protecting persons and property Deterrence: Minimum standards of social conduct Deterrence: Minimum standards of social conduct Allocating Losses: Placing the economic burden where it can best be afforded Allocating Losses: Placing the economic burden where it can best be afforded
CASE ANALYSIS: GENERAL TO SPECIFIC Example: Customer walks up to a store clerk and strikes him until he collapses
CASE ANALYSIS: GENERAL TO SPECIFIC General tort topic:Example: intentional General tort topic:Example: intentional Specific tort:Example: Battery Specific tort:Example: Battery Issues framed by facts:A customer strikes a store clerk Issues framed by facts:A customer strikes a store clerk Rule of law:Unwanted touching = battery Rule of law:Unwanted touching = battery Apply rule to facts:The beating = unwanted touching Apply rule to facts:The beating = unwanted touching
HOW A CIVIL CASE PROGRESSES COMPLAINT/PETITION ANSWER DISCOVERY PRETRIAL PROCEDURES AND MOTIONS TRIAL POST-TRIAL AND APPEAL ALTERNATIVE DISPUTE RESOLUTION
COMPLAINT OR PETITION A PLEADING FILED BY PLAINTIFF IN COURT THAT INITIATES A LAWSUIT. IN CALIFORNIA, CALLED A COMPLAINT. MUST BE SERVED ON DEFENDANT; GENERALLY SERVICE IS HAND DELIVERY BY AUTHORIZED OFFICER (USUALLY A SHERIFF OR DEPUTY). CAN ALSO SERVE BY MAILING. 4.NATURAL PERSON IS SERVED IN PERSON. CORPORATION IS SERVED BY SERVING REGISTERED AGENT, PRESIDENT OR VICE- PRESIDENT.
COMPLAINT CONTD: STATUTE OF LIMITATIONS: FOR MOST INJURY AND PROPERTY DAMAGE CASES = 2 YEARS STATUTE OF LIMITATIONS: FOR DEFAMATION, FALSE ARREST = 1 YEAR LIMITATIONS PERIOD GENERALLY BEGINS TO RUN WITH DATE OF THE INCIDENT IN QUESTION
DISCOVERY DISCLOSURES – BASIC REQUIRED INFORMATION. INTERROGATORIES REQUESTS FOR PRODUCTION REQUESTS FOR ADMISSION MOTION FOR INDEPENDENT MEDICAL EXAMINATION DEPOSITIONS ON WRITTEN QUESTIONS ORAL/VIDEO DEPOSITIONS
PRETRIAL PROCEDURES AND MOTIONS COURT ISSUES ON ITS OWN, OR AT REQUEST OF ONE OR MORE PARTIES, A CASE MANAGEMENT DOCUMENT SETS DEADLINES, INCLUDING A SETTLEMENT CONFERENCE AND TRIAL SETTING CONFERENCE. A CASE MAY BE PUT ON THE FAST TRACK – GOES TO TRIAL WITHIN A YEAR OF FILING. POSSIBLE JOINDER OF ADDITIONAL PARTIES – ADDITIONAL DEFENDANTS, INTERVENORS OR THIRD PARTY DEFENDANTS
PRETRIAL PROCEDURES AND MOTIONS CONTD MOTIONS AND RESPONSES FILED BY THE PARTIES ASKING THE JUDGE TO MAKE A RULING OR ORDER ON SOME MATTER RELATING TO THE CASE. EXAMPLE: MOTION FOR SUMMARY JUDGMENT OR DEMURRER. 4.PRETRIAL CONFERENCE: i.e., MOTIONS IN LIMINE.
TRIAL JURY OR NON-JURY JURY SELECTION (VOIR DIRE), IF APPLICABLE OPENING STATEMENTS PRESENTATION OF EVIDENCE CHARGE CONFERENCE COURTS CHARGE CLOSING ARGUMENTS DELIBERATIONS CLOSING ARGUMENTS VERDICT
POST-TRIAL AND APPEAL MOTION FOR ENTRY OF JUDGMENT OR JUDGMENT N.O.V. MOTION FOR NEW TRIAL NOTICE OF APPEAL REQUEST FOR TRANSCRIPT AND STATEMENT OF FACTS APPELLATE BRIEFS ORAL ARGUMENTS AT COURT OF APPEALS APPEAL TO HIGHER COURT – i.e., CALIFORNIA SUPREME COURT
BY AGREEMENT, CASE IS PRESENTED TO SMALL JURY IN ABBREVIATED FASHION. PARTIES AGREE IN ADVANCE TO BE BOUND BY OUTCOME OR TO USE OUTCOME TO AID SETTLEMENT NEGOTIATIONS.
ARBITRATION CASE IS DECIDED BY NEUTRAL 3 RD PARTY OTHER THAN JUDGE FOLLOWING ABBREVIATED PRESENTATION OF EVIDENCE.
MEDIATION ASSISTED SETTLEMENT CONFERENCE LED BY NEUTRAL 3 RD PARTY WHO ACTS AS FACILITATOR AND AN ADVOCATE FOR SETTLEMENT. MEDIATOR CANNOT DECIDE CASE OR MAKE RULINGS, BUT ASSISTS PARTIES IN REACHING MUTUALLY AGREEABLE RESOLUTION.
WHAT A LAW OFFICE DOES IN HANDLING TORT LAWSUITS CONTD INFORMATION BOTH SIDES TRY TO OBTAIN: ACCIDENT REPORT, IF ANY PHOTOGRAPHS MEDICAL RECORDS MEDICAL BILLS LOST WAGE INFORMATION WITNESS STATEMENTS PROJECTION OF FUTURE LOSSES
THE CONCEPT OF DUTY USE REASONABLE CARE TO AVOID INJURING OTHERS OR THEIR PROPERTY SCOPE OF DUTY: FORESEEABLE PLAINTIFFS, OR CLASS OF PERSONS TO BE PROTECTED REASONABLE PERSON/REASONABLE CARE
NEGLIGENCE: The failure to exercise ordinary care.
ORDINARY CARE: That degree of care that would be exercised by a reasonably prudent person under the same or similar circumstances.
WHO DECIDES HOW A REASONABLY PRUDENT PERSON WOULD HAVE ACTED?
MATCHING SKILLS, DISABILITIES AND CIRCUMSTANCES
SPECIAL DUTY BASED UPON SPECIAL RELATIONSHIP EMPLOYER/EMPLOYEE PARENT/TEACHER INNKEEPER/GUEST COMMON CARRIER/PASSENGER
PROOF OF NEGLIGENCE THE BURDEN OF PROOF IS ON PLAINTIFF
RES IPSA LOQUITUR (rays-ipsuh-lo- kwit-tour) (Res Ipsa for short) Hospital burn example, p. 51 Asphalt example, p. 52 Elements: Exclusive control of defendant Ordinarily would not occur without negligence
VIOLATION OF STATUTE NEGLIGENCE PER SE MAY PRECLUDE DEFENDANT FROM INTRODUCING EVIDENCE OF DEGREE OF CARE SWIMMING POOL EXAMPLE, p. 53
In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.
CONTRIBUTORY NEGLIGENCE: The plaintiffs own negligence which caused or contributed to cause the occurrence or her/his injury.
PROPORTIONATE OR COMPARATIVE RESPONSIBILITY PLAINTIFF AND TORTFEASOR(S) EACH IS A CONTRIBUTING CAUSE MULTIPLE TORTFEASORS
JOINT AND SEVERAL LIABILITY MULTIPLE TORTFEASORS MAY ALL BE LIABLE IN SOME CIRCUMSTANCES, ONE TORTFEASOR MAY BE LIABLE FOR ENTIRE AWARD
DAMAGES = The injury or loss the plaintiff suffered as a result of the defendants tortious conduct.
DAMAGES MUST EXIST TO HAVE A LEGAL CAUSE OF ACTION, OR TO HAVE A CASE.
COMPENSATORY DAMAGES GENERAL DAMAGES: pain & suffering from an injury; grief from the death of a family member. Other examples? SPECIAL DAMAGES: out-of-pocket damages such as medical bills & lost wages. Other examples?
PUNITIVE OR EXEMPLARY DAMAGES INTENTIONAL TORTS GROSS NEGLIGENCE: MORE THAN MOMENTARY THOUGHTLESSNESS OR INADVERTENCE BUT SUCH AN ENTIRE WANT OF CARE AS TO EVIDENCE ACTUAL CONSCIOUS INDIFFERENCE TO THE RIGHTS AND WELFARE OF THOSE AFFECTED BY THE CONDUCT. AWARDED TO PUNISH DEFENDANT AND MAKE AN EXAMPLE, NOT TO COMPENSATE THE PLAINTIFF PAIN & SUFFERING DAMAGES ARE NOT PUNITIVE DAMAGES