What is Personal Injury?

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Have you ever wondered what personal injury actually is? Check out this deck from http://www.Deanza.edu and learn more! This was uploaded by http://www.RobertReevesLaw.com The Reeves Law Group 515 South Flower Street, 36th Floor Los Angles, CA 90071 (213) 271-9318 Other Meeting Locations The Reeves Law Group 1 World Trade Center #800, Long Beach, California 90831 (562) 528-3135 The Reeves Law Group 198 N Arrowhead Ave, San Bernardino, CA 92408 92408 (909) 657-0576 The Reeves Law Group 4900 California Ave B210, Bakersfield, California 93301 (661) 202-3056 The Reeves Law Group 28202 Cabot Rd #300, Laguna Niguel, CA 92677 (949) 614-1142 The Reeves Law Group 300 Esplanade Drive #900, Oxnard, CA 93030 (805) 367-3414 The Reeves Law Group 3890 11th St, Riverside, California 92501 (951) 324-5174 The Reeves Law Group 3350 Shelby St #200, Ontario, California 91764 (909) 563-8162 The Reeves Law Group 200 W Santa Ana Blvd #630, Santa Ana, California 92701 (714) 550-6000 The Reeves Law Group 21250 Hawthorne Blvd #700, Torrance, California 90503 (310) 893-1742



Personal Injury Litigation
 Tort Law

 Litigation
 Insurance Law


What is Personal Injury?
This presentation was found at: http://www.Deanza.edu

This was uploaded by http://www.RobertReevesLaw.com The Reeves Law Group 515 South Flower Street, 36th Floor Los Angles, CA 90071 (213) 271-9318

Other Meeting Locations The Reeves Law Group 1 World Trade Center #800, Long Beach, California 90831 (562) 528-3135 The Reeves Law Group 198 N Arrowhead Ave, San Bernardino, CA 92408 92408 (909) 657-0576 The Reeves Law Group 4900 California Ave B210, Bakersfield, California 93301 (661) 202-3056 The Reeves Law Group 28202 Cabot Rd #300, Laguna Niguel, CA 92677 (949) 614-1142 The Reeves Law Group 300 Esplanade Drive #900, Oxnard, CA 93030 (805) 367-3414 The Reeves Law Group 3890 11th St, Riverside, California 92501 (951) 324-5174 The Reeves Law Group 3350 Shelby St #200, Ontario, California 91764 (909) 563-8162 The Reeves Law Group 200 W Santa Ana Blvd #630, Santa Ana, California 92701 (714) 550-6000 The Reeves Law Group 21250 Hawthorne Blvd #700, Torrance, California 90503 (310) 893-1742


P.I. Cases
 A lawsuit (or potential lawsuit) resulting from

injuries caused by the tort of another.
 Compare: Workers’ Compensation


Parties and Attorneys
 Plaintiff

 Defendant  (Tortfeasor)
 Plaintiffs Attorneys  Defense Attorneys


 Civil wrong resulting in injury for which victim

receives compensation in form of money damages  Injury

 

Personal (physical/mental) property--real, personal, intellectual reputation


 Intentional

requires intent
violation of “reasonable person standard” liability without fault public interest

 Negligence

 Strict Liability
 


Sources of Tort Law
 Statutes  Case Law


Tort vs. Crime
 Act--may be the same

 Purpose
 Standard of Proof  Interest violated  Procedural rules


Tort vs. Contract
 Contract = Agreement  Tort = Obligation imposed by law


Overview of Tort Case
 Investigation & Research (facts & law)

 Settlement efforts--demand letter
 complaint filed  answer/response filed


 discovery  trial  post trial proceedings

Preliminary Considerations

Read chapters 3 & 4 in Nolo Press text


Preliminary Considerations
 Fee Arrangements

 

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

 Investigation
 

Preliminary Considerations, cont.
 Defendant—public entity

Law & Form: http://www.vcgcb.ca.gov/

(read information on site)

 Notify defendant/insurance
 Advice to plaintiff

 Necessity of medical liens


Preliminary considerations
 The uninsured/underinsured defendant

U.M. cases Arbitration

 An Interesting Web site:
 http://blogs.findlaw.com/injured/


 Automobile

 Homeowners/Personal Liability
 Product  Errors and Omissions  Umbrella Policies


Automobile Insurance
 Liability

 Medical Payments (Med pay)
 Comprehensive  Collision  Uninsured Motorist (U.M.)  Underinsured Motorist


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


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


Bad Faith
 First Party vs. Third Party claims

 Failure to pay claim within policy limits


Avoiding Bad Faith by Carrier
 Reservation of rights  Declaratory Relief Action


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


Tort 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


Intentional Torts
 Intent

 

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


Transferred Intent
 Substitute for intent  T intends to punch A, but A ducks and T hits



Types of Intentional Torts
 Torts against Persons

Battery, Assault, False imprisonment, intentional inflict of mental distress trespass to land, trespass to chattels and conversion

 Torts against Property


Analyzing a Tort
 Every tort has unique elements

this is what constitutes a “cause of action” or the prima facie right to sue defenses negate liability even though a “prima facie” case is present

 Every tort has defenses

 Defenses are often confused and stated with

the cause of action

Battery--Cause of Action
 Harmful or offensive

 contact or touching


 Doesn’t always mean “touching” of two

 Awareness of contact not necessary


Harmful or Offensive
 Distinguish inadvertent touching

 Harmful or offensive = not wanted
 

Kissing Medical care


 Consent  Capacity to consent
 

Minority = sexual contact; medical treatment Mental capacity

  

Voluntariness Scope of consent Knowing—

Medical care—knowing all consequences
 Emergency care


 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


 Defense of Property

 

Not deadly force Must be reasonable “Booby traps”—never allowed
Fresh pursuit Property taken wrongfully

 Regaining property
 


 Intentional

 Causing of Apprehension or fear
 Of harmful or offensive  Contact  Defendant must appear to have present

ability to carry out threat


 Same as with battery


False Imprisonment/False Arrest
 Intentionally

 Confining
 Another


 Legal Right

Police vs. Private Citizen

 Shopkeeper’s Privilege—California  Consent, etc.


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


Sexual Harrassment
 Cal Civ Code §§51.9, 52


Sexual 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


Sexual Battery
 CC 1708.5

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


 CC 1708.7  Follow, alarm or harass  General damages, special, punitive and



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 51.5. (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 42 any other law.

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
 www.usdoj.gov


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


NEGLIGENCE Elements of Cause of Action



 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


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


 S a shopper is attacked in parking lot of

defendant shopping mall at night.
 Does mall owe her a duty?


Special Situations of Duty
 Possessor of Land

 Rescue Doctrines
 Seller of Land  Unborn Children  Vicarious Liability


Possessor’s of Land
 Common law view

Depended on status of person coming on to property Does not depend on status

 California View


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


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.


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


Sellers of Land
 Duty to Disclose defects  Cal Civ Code 1102 et seq.

All known defects


Rescue Doctrine
 Under common law—no duty unless

1. Special relationship exists 2. Defendant put plaintiff in perilous situation


Special Relationships
 Family

 Common carrier
 Defendant’s relationship with 3rd Party who

causes harm

Tarasoff case

 Tavern Owner


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. §1714.2---trained in CPR Cal Civ Proc §17.14.5—Emergency Facilities Limit liability for negligence but not gross negligence


Unborn Children
 Refers to c/a by child after birth for injury to

 Common law—no duty

 Most courts recognize some liability today


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 1714.1—liability of parent for child


Cal Civ. Code 1714.1
 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


Cal Civ Code 1714.3
 Parent liable for damages caused by child

firing a gun –up to 30K  Also liability for own tort


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


Jury Instructions
 www.netlawlibraries.com

 http://www.ce9.uscourts.gov/web/sdocuments



 Determine the standard  Examine conduct to see if it falls below



Standard of Care
 Absent special circumstances:

 How a reasonable person would act under

the same or similar circumstances


Special Circumstances
 Mental deficiency—Not considered  Physical disability—Is considered


 Children  Reasonable “child”  Emergency

Remember Good Samaritan Laws

 Professionals


 “Locality rule”  Standard in community  Not followed in California


 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


Guest Statutes
 Limit liability of driver to “guest” passengers

 Abolished in California


Res Ipsa Loquitur
 Way of proving breach of duty without

showing defendant’s conduct  I.e. Scissors left in surgery patient


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


 Actual Cause  Proximate Cause


Actual Cause
 But for test (sine qua non)

Usually only one defendant
Usually more than one defendant who contribute to accident Toxic torts

 Substantial Factor
 


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


Problem Areas
 Medical malpractice—failure to diagnose

 Product liability—design defects


 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”


NEGLIGENCE AND ORDINARY CAREDEFINITIONS 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

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.

JURY INSTRUCTION 3.13.1 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].


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

JURY INSTRUCTION 3.36 IMPAIRED PHYSICAL FACULTIESAMOUNT 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


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.


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]


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.]

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

Proximate Cause--Analysis
 Direct Causation

Usually proximate cause exists

 Intervening Cause

Dependent Intervening Cause

Usually proximate cause exists
Proximate cause may or may not exist

Independent Intervening Cause


Intervening Causes--Dependent
 Dependent on original tortfeasor

 

Rescue Med care/malpractice Escape attempts
Liability usually exists


Intervening Causes-Independent
 Foreseeable—Liability Exists

Foreseeable negligence of others Foreseeable criminal activity of others Acts of God Unforeseeable acts of others Gross med mal

 Not Foreseeable—Superseding

 


Dram shop Act—Calif.
 Cal Civ. Code §1714 (b) (c)  Furnishing alcohol does is not proximate

cause of injury to others

Exception: Minors


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


 Compensatory

General Special

 Punitive

 Nominal


General Damages
 Pain and suffering

 Loss of use of limb
 Scarring  Loss of society and companionship


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


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



Punitive (Exemplary) Damages
 Cal Civ Code 3294

Oppression, fraud, malice


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.


Expenses of Litigation
 Costs  Attorney Fees

Contingent Fees California Rules Limited Fees—Minors and Med Malpractice


Property Damage
 Fair market value  Not replacement


Loss of Consortium
 Derivative claim of spouse  Not allowed for children in California

(but parents can sue for medical bills)


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


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


Wrongful Death Damages
 Loss of society and comfort

 Loss of monetary contribution


Calculating Damages
 Future Damages

Adjust for inflation Discount for present value

 Structured settlement

Often involve annuities


Mitigation of Damages


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


Defenses to Negligence
 Contributory Negligence—Complete Bar

 Comparative Negligence-Reduces Recovery
 Assumption of Risk –Bar  Immunity – Bar  S.O.L. - Bar


Contributory Negligence
 Abolished in California in Li v. Yellow Cab  Exceptions to Rule (where it exists)

Last Clear Chance


Comparative Negligence
 Pure Comparative (California)  50% Rule


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


Assumption of Risk
 Express Assumption

Signing a release

 Implied Assumption of Risk

 

Conduct Reasonable (RIAR) vs. Unreasonable Unreasonable = Comparative Negligence


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


 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


 Interspousal—generally abolished

But generally excepted from insurance coverage

 Parent-Child


Statutes of Limitations
 CCP 312 et seq


CCP 340
 Within one year:

 3) Libel, slander, assault, battery, false

imprisonment, seduction, injury or death from wrongful act or neglect,… An action for libel, slander, assault, battery, false imprisonment, seduction of a person below the age of legal consent, or for injury to or for the death of one caused by the wrongful act or neglect of another,


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:


 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


Tolling of Statute
 Absence of Defendant

 Minority of insanity

Not if Defendant is government

 Imprisonment

Not if Def. Is government

 Order of Restitution


Claim/Notice Requirements
 Suits against public entity

 Suits against deceases
 Suits against doctors—notice only


 Medical

 Legal
 Other


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


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


 Same as to negligence  Statutes of Limitation are often problems


 3333.2. (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).


Legal Malpractice
 Must prove the underlying case in addition to

legal malpractice


 Intentional—Fraud

 Negligent
 Innocent


 Misrepresentation of Fact

 Intent to induce other party of rely on fact
 Knowledge of Falsity  Justifiable reliance by other party  Damages


Misrepresentation of Fact
 Misstatement

 Failure to disclose where duty exists
 

Fiduciary relationship California real estate laws Not judgment, value, opinion Exception; Expert

 Fact
 


 Knowledge or knowledge that you don’t



Proximate Cause/Reliance
 Victim must justifiably rely on representation


Negligent Misrepresentation
 All elements the same except intent

 Statement negligently made

Real estate brokers


Innocent Misrepresentation
 Generally no tort action


Relationship to Contract Law
 Any misrepresentation is grounds to disaffirm

the contract


Environmental/Toxic Torts
 Private Actions

Damages, Injunctions
Injunctions, Civil Penalties, Criminal Private A.G. Actions

 State A.G./District Attorney
 

 EPA/U.S. Department of Justice


Environmental/Toxic Torts
 Negligence

Negligence Per se (State and Federal)

 Nuisance  Strict Liability

Ultrahazardous Activities Product


 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.


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


Private Nuisance
 Every nuisance not included in the definition

of the last section is private.


Strict Liability
 Liability without fault

 Abnormally dangerous (ultrahazardous

activities)  Animals  Products


 Trespassing animals

 Non-trespassing—only if dangerous
  

Inherently dangerous Known dangerous propensities California Statute


California 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.


Abnormally Dangerous Activities
 High degree of risk

 Risk of serious harm
 Risk cannot be eliminated  Not common activity  Inappropriateness  Value


 Abnormally dangerous

Crop dusting Poisonour gasses Airplanes Irrigation dam Falling tree

 Not Dangerous
  


Product Liability
 Not a Tort

 Refers to Injuries caused by a product
 Based on Torts of:

Negligence Strict Liability

 Based on contract warranties


 Personal Injuries

 Property Damage
 Not Economic

Exception for recovery based on contract


 Traditional concepts apply

 Negligence in manufacture, design,

packaging, inspection

Manufacturer responsible for component parts

 Based on fault
 Privity –not required  Damages—not economic


 Hybrid tort and contract

 Express or Implied


Strict Liability
 Manufacturer and retailer are strictly liabile for

injuries resulting from defective product.
 Rationale: Risk Assignment


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


Possible Plaintiffs
 Purchaser

 User
 Bystander


Types of Defects
 Manufacture

 Design
 Warning  Structural Defects  Lack of Safety Features


 Negligence:

Comparative Assumption of Risk

 Warranty



Defenses-Strict Liability
 Assumption of risk

 Unforeseeable use of product


Defenses to all Product Liability
 Statute of limitations


 Invasion of reputation of person or group

resulting from libel or slander
 Cal. Civ. Code §44 et seq


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


 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.


 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.


 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.


Special Harm—Special Damages
 Not Required

 

Libel California limits to libelous on face Slander per se
Slander (except for slander per se) Calif: Libelous but not on its face

 Required
 


Slander per se
 Allegations that plaintiff

 

Engaged in criminal activity Suffers venereal or other such disease Unfit to conduct business Sexual misconduct


“Presumed Damages”
 When actual harm need not be shown

 Normal, expected damages
 Matters of Public Concern require actual



Elements of Cause of Action
 Reputation harmed

 Statement interpreted as referring to plaintiff
 One interpretation must be defamatory  False statement  Publication  Malice if required


The Statement
 Tendency to harm reputation

 Reasonable interpretation
 Statement must be False  Statement of fact not opinion  Refer to a living person


 Read or heard or seen by someone other

than plaintiff
 Every repetition is also a publication  Malice if public figure


Public Figures
 Politicians

 Performers
 People cast into limelight or news


 Pecuniary loss (specials)

 Non-pecuniary (general damages)
 Punitive--Malice


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


 Privilege: Allows one to make defamatory statement w/o

 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


Invasion of Privacy
 Appropriation of Plaintiff’s name for

defendant’s financial gain  Public disclosure of private life  Unreasonable intrusion  False Light


 Trade Libel

False statement about business or goods
False statement in reference to property rights

 Slander of Title


Vicarious Liability
 Liability for torts of another even though no

fault of one’s own  A form of strict liability  Respondeat Superior


 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


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


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


Statutory Vicarious Liability
 Owners of Automobiles

Parents Veh. Code 17707 Permissive drivers Veh. Code 17150 et seq

 Parents Civ. Code 1714.1 et seq.


Joint Venture/Partnership
 Agents of one another in pursuing joint

venture or partnership business.


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


California—Prop 51
 Cal Civ Code 1430-1432

 Establishes several liability for non-economic


Liability according to fault


 CCP875-880

 Right where judgment is joint
 Effect of Release ( 877)
  

Must be in good faith Reduces liability of others Releases settling tortfeasor from all liability


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


Sliding Scale Settlements
 CCP 877.5

 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


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


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 §550-555 Allows Plaintiff to proceed against insurance company rather than estate if claim is within policy limits; serve insurance company -- Medical malpractice—90 day notice


Demand Letter
 Offer to settle case

 Basis of liability
 Special Damages  Injuries  Always attach copies of specials and medical



 File Complaint

Optional Judicial Council Forms

Auto Accidents, Product Liability, Premises Liability, General Negligence

 

County where accident happened or defendant resides Prayer

 Have Summons Issued


 Personal  Substituted  Acknowledgement and Waiver  Publication

 Out of State


Responsive Pleadings
 Answer  Optional Judicial Council Form  Demurrer  Motions  Time for Response


Discovery: CCP 2016 et seq.
 Interrogatories: Judicial Council Form

 Demand for Production/Inspection
 Depositions  Party or Non Party  Records  Demand for Medical Exam  Request for Admissions: Judicial Council Form  Exchange of Expert Information


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

and Evidence


Pre Trial Proceedings
 Case Management Conferences  Settlement Conferences  CCP 998 Offers


Trial Procedures
 Subpoena witnesses

 Subpoena documents
 Notify Experts


Post Trial Procedures
 Motions

New Trial; Judgment N.O.V.; Additur, Remittitur

 Collection  Appeal


 http://resources.lawinfo.com/en/Videos/index.

 This presentation was found at:



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