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
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Content
Personal Injury Litigation
Tort Law
Litigation
Insurance Law
1
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
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P.I. Cases
A lawsuit (or potential lawsuit) resulting from
injuries caused by the tort of another.
Compare: Workers’ Compensation
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
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Plaintiff’s insurance Fault vs. No-Fault provisions
Subrogation rights of no-fault provisions
17
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
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Bad Faith
First Party vs. Third Party claims
Failure to pay claim within policy limits
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Avoiding Bad Faith by Carrier
Reservation of rights Declaratory Relief Action
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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
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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
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Intentional Torts
Intent
intend consequences or result--not harm I.e. intentionally running a red light I.e. pulling a chair out from someone
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Transferred Intent
Substitute for intent T intends to punch A, but A ducks and T hits
B
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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
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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
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Battery--Cause of Action
Harmful or offensive
contact or touching
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Contact
Doesn’t always mean “touching” of two
individuals
Awareness of contact not necessary
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Harmful or Offensive
Distinguish inadvertent touching
Harmful or offensive = not wanted
Kissing Medical care
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Defenses
Consent Capacity to consent
Minority = sexual contact; medical treatment Mental capacity
Voluntariness Scope of consent Knowing—
Medical care—knowing all consequences
Emergency care
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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
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Defenses
Defense of Property
Not deadly force Must be reasonable “Booby traps”—never allowed
Fresh pursuit Property taken wrongfully
Regaining property
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Assault
Intentional
Causing of Apprehension or fear
Of harmful or offensive Contact Defendant must appear to have present
ability to carry out threat
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Defenses
Same as with battery
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False Imprisonment/False Arrest
Intentionally
Confining
Another
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Defenses
Legal Right
Police vs. Private Citizen
Shopkeeper’s Privilege—California Consent, etc.
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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
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Sexual Harrassment
Cal Civ Code §§51.9, 52
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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
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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
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Stalking
CC 1708.7 Follow, alarm or harass General damages, special, punitive and
injunctive
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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 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
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Negligence
Read chapter 2 in Nolo Press text Continue with reading chapter 7 on Web site
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NEGLIGENCE Elements of Cause of Action
DUTY
BREACH OF DUTY
CAUSATION: ACTUAL AND PROXIMATE DAMAGES
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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
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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
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Hypothetical
S a shopper is attacked in parking lot of
defendant shopping mall at night.
Does mall owe her a duty?
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Special Situations of Duty
Possessor of Land
Rescue Doctrines
Seller of Land Unborn Children Vicarious Liability
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Possessor’s of Land
Common law view
Depended on status of person coming on to property Does not depend on status
California View
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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
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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.
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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
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Sellers of Land
Duty to Disclose defects Cal Civ Code 1102 et seq.
All known defects
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Rescue Doctrine
Under common law—no duty unless
1. Special relationship exists 2. Defendant put plaintiff in perilous situation
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Special Relationships
Family
Common carrier
Defendant’s relationship with 3rd Party who
causes harm
Tarasoff case
Tavern Owner
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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
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Unborn Children
Refers to c/a by child after birth for injury to
Fetus
Common law—no duty
Most courts recognize some liability today
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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
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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
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Cal Civ Code 1714.3
Parent liable for damages caused by child
firing a gun –up to 30K Also liability for own tort
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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
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Jury Instructions
www.netlawlibraries.com
http://www.ce9.uscourts.gov/web/sdocuments
.nsf/civ
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Negligence—Breach
Determine the standard Examine conduct to see if it falls below
standard
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Standard of Care
Absent special circumstances:
How a reasonable person would act under
the same or similar circumstances
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Special Circumstances
Mental deficiency—Not considered Physical disability—Is considered
Exceptions
Children Reasonable “child” Emergency
Remember Good Samaritan Laws
Professionals
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Professionals
“Locality rule” Standard in community Not followed in California
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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
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Guest Statutes
Limit liability of driver to “guest” passengers
Abolished in California
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Res Ipsa Loquitur
Way of proving breach of duty without
showing defendant’s conduct I.e. Scissors left in surgery patient
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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
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NEGLIGENCE--CAUSATION
Actual Cause Proximate Cause
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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
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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
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Problem Areas
Medical malpractice—failure to diagnose
Product liability—design defects
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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”
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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
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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.
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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].
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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
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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
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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.
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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]
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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.]
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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
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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
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Intervening Causes--Dependent
Dependent on original tortfeasor
Rescue Med care/malpractice Escape attempts
Liability usually exists
Foreseeable negligence of others Foreseeable criminal activity of others Acts of God Unforeseeable acts of others Gross med mal
Not Foreseeable—Superseding
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Dram shop Act—Calif.
Cal Civ. Code §1714 (b) (c) Furnishing alcohol does is not proximate
cause of injury to others
Exception: Minors
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Eggshell Rule
You take your plaintiff as you find him Liability extends to all injuries
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Damages
Compensatory
General Special
Punitive
Nominal
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General Damages
Pain and suffering
Loss of use of limb
Scarring Loss of society and companionship
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Special Damages
Out of pocket expenses—past and future Future: Must be reasonably certain
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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)
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Punitive (Exemplary) Damages
Cal Civ Code 3294
Oppression, fraud, malice
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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.
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Expenses of Litigation
Costs Attorney Fees
Contingent Fees California Rules Limited Fees—Minors and Med Malpractice
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Property Damage
Fair market value Not replacement
98
Loss of Consortium
Derivative claim of spouse Not allowed for children in California
(but parents can sue for medical bills)
99
Assessment of Damages
Medical Copies of all bills Med reports Compulsory Medical Exam Loss of consortium Loss Wages Employed by another Self-employed
100
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
101
Wrongful Death Damages
Loss of society and comfort
Loss of monetary contribution
102
Calculating Damages
Future Damages
Adjust for inflation Discount for present value
Structured settlement
Often involve annuities
103
Mitigation of Damages
104
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
105
Defenses to Negligence
Contributory Negligence—Complete Bar
Comparative Negligence-Reduces Recovery
Assumption of Risk –Bar Immunity – Bar S.O.L. - Bar
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Contributory Negligence
Abolished in California in Li v. Yellow Cab Exceptions to Rule (where it exists)
Last Clear Chance
107
Comparative Negligence
Pure Comparative (California) 50% Rule
108
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
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Assumption of Risk
Express Assumption
Signing a release
Implied Assumption of Risk
Conduct Reasonable (RIAR) vs. Unreasonable Unreasonable = Comparative Negligence
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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
111
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
112
Immunity
Interspousal—generally abolished
But generally excepted from insurance coverage
Parent-Child
113
Statutes of Limitations
CCP 312 et seq
114
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,
115
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:
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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
117
Tolling of Statute
Absence of Defendant
Minority of insanity
Not if Defendant is government
Imprisonment
Not if Def. Is government
Order of Restitution
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Claim/Notice Requirements
Suits against public entity
Suits against deceases
Suits against doctors—notice only
119
Malpractice
Medical
Legal
Other
120
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
121
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
122
Defenses
Same as to negligence Statutes of Limitation are often problems
123
Damages
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).
124
Legal Malpractice
Must prove the underlying case in addition to
legal malpractice
125
Misrepresentation
Intentional—Fraud
Negligent
Innocent
126
Fraud
Misrepresentation of Fact
Intent to induce other party of rely on fact
Knowledge of Falsity Justifiable reliance by other party Damages
127
Misrepresentation of Fact
Misstatement
Failure to disclose where duty exists
Fiduciary relationship California real estate laws Not judgment, value, opinion Exception; Expert
Fact
128
Intent
Knowledge or knowledge that you don’t
know
129
Proximate Cause/Reliance
Victim must justifiably rely on representation
130
Negligent Misrepresentation
All elements the same except intent
Statement negligently made
Real estate brokers
131
Innocent Misrepresentation
Generally no tort action
132
Relationship to Contract Law
Any misrepresentation is grounds to disaffirm
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.
136
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
137
Private Nuisance
Every nuisance not included in the definition
of the last section is private.
138
Strict Liability
Liability without fault
Abnormally dangerous (ultrahazardous
activities) Animals Products
139
Animals
Trespassing animals
Non-trespassing—only if dangerous
Inherently dangerous Known dangerous propensities California Statute
140
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.
141
Abnormally Dangerous Activities
High degree of risk
Risk of serious harm
Risk cannot be eliminated Not common activity Inappropriateness Value
142
Examples
Abnormally dangerous
Crop dusting Poisonour gasses Airplanes Irrigation dam Falling tree
Not Dangerous
143
Product Liability
Not a Tort
Refers to Injuries caused by a product
Based on Torts of:
Negligence Strict Liability
Based on contract warranties
144
Damages
Personal Injuries
Property Damage
Not Economic
Exception for recovery based on contract
145
Negligence
Traditional concepts apply
Negligence in manufacture, design,
packaging, inspection
Manufacturer responsible for component parts
Based on fault
Privity –not required Damages—not economic
146
Warranty
Hybrid tort and contract
Express or Implied
147
Strict Liability
Manufacturer and retailer are strictly liabile for
injuries resulting from defective product.
Rationale: Risk Assignment
148
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
149
Possible Plaintiffs
Purchaser
User
Bystander
150
Types of Defects
Manufacture
Design
Warning Structural Defects Lack of Safety Features
151
Defenses
Negligence:
Comparative Assumption of Risk
Warranty
Disclaimer
152
Defenses-Strict Liability
Assumption of risk
Unforeseeable use of product
153
Defenses to all Product Liability
Statute of limitations
154
Defamation
Invasion of reputation of person or group
resulting from libel or slander
Cal. Civ. Code §44 et seq
155
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
156
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.
157
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.
158
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.
159
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
160
Slander per se
Allegations that plaintiff
Engaged in criminal activity Suffers venereal or other such disease Unfit to conduct business Sexual misconduct
161
“Presumed Damages”
When actual harm need not be shown
Normal, expected damages
Matters of Public Concern require actual
damages
162
Elements of Cause of Action
Reputation harmed
Statement interpreted as referring to plaintiff
One interpretation must be defamatory False statement Publication Malice if required
163
The Statement
Tendency to harm reputation
Reasonable interpretation
Statement must be False Statement of fact not opinion Refer to a living person
164
Publication
Read or heard or seen by someone other
than plaintiff
Every repetition is also a publication Malice if public figure
For general damages against newspaper or radio, plaintiff must request retraction w/20 days of learning of libel
Publisher has 3 weeks to retract
168
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
169
Invasion of Privacy
Appropriation of Plaintiff’s name for
defendant’s financial gain Public disclosure of private life Unreasonable intrusion False Light
170
Defamation--Property
Trade Libel
False statement about business or goods
False statement in reference to property rights
Slander of Title
171
Vicarious Liability
Liability for torts of another even though no
fault of one’s own A form of strict liability Respondeat Superior
172
Employer-Employee
Employer vicariously liable for torts of
employee committed in course and scope of employment
Joint Venture/Partnership
Agents of one another in pursuing joint
venture or partnership business.
177
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
178
California—Prop 51
Cal Civ Code 1430-1432
Establishes several liability for non-economic
damages
Liability according to fault
179
Contribution
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
180
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
181
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
182
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
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
184
Demand Letter
Offer to settle case
Basis of liability
Special Damages Injuries Always attach copies of specials and medical
report
185
Litigation
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
186
Service
Personal Substituted Acknowledgement and Waiver Publication
Out of State
187
Responsive Pleadings
Answer Optional Judicial Council Form Demurrer Motions Time for Response
188
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
189
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
190
Pre Trial Proceedings
Case Management Conferences Settlement Conferences CCP 998 Offers