Frequently Asked Questions FAQ

What is a Tort?

Conduct that harms other people or their property is generally called a tort.  It is a private wrong against a person for which the person may recover damages.  The injured party may sue the wrongdoer to recover damages to compensate him for the harm or loss caused.  The conduct that is a tort may also be a crime.

 

Some torts require intent before there will be liability and some torts require no intent.  In other words, in some cases there is liability for a tort even though the person committing the tort did not have any intent to do wrong.  For example, a person going on private property without the consent of the landowner is liable for the tort of trespass even though the person may have not known he was on someone else’s property (e.g., he made an honest mistake as to the location of the boundary line).

 

In other torts, there must be intent.  For example, in the case of slander, it is necessary to show that the defendant intended to cause harm, or, at least had the intent to do an act that a reasonable person would know would likely cause harm.  As a general rule, motive is irrelevant except as evidence to show the existence of intent.

 

What is the difference between a Tort and a Crime?

A crime is a wrong arising from a violation of a public duty.  A tort is a wrong arising from the violation of a private duty.  Again, however, a crime can also constitute a tort.  For example, assault is a tort, but it is also a crime.  A person who is assaulted may bring criminal charges against the assailant and may also sue the assailant for damages under tort law.  An employee’s theft of his employer’s property that was entrusted to the employee constitutes the crime of embezzlement as well as the tort of conversion.

 

How is the amount of damages suffered determined?

To bear responsibility for injury to others, your negligent action (or failure to act in certain situations) must be the proximate cause of the injury without any intervening causes interrupting the natural sequence of events.

Once the first three elements of a tort (duty, breach, and causation) have been established, it is then a matter of determining the amount of damages suffered so that an injured party can be compensated for the damages sustained as a result of the tortfeasor’s act or omission.

Some common “damages” that a person may suffer include:

  • Medical expenses – such as doctors fees and hospitalization costs
  • Rehabilitation therapy – the cost of obtaining services provided by others who assist a person to return to the same or similar physical condition he/she was in prior to the negligent act or omission. This could include training for a new occupation if the injury prevents the injured party from working in his/her normal trade or occupation

 

  • Lost wages – wages and earnings which would have been earned by the injured party but for the negligence of the tortfeasor
  • Pain and suffering – compensation for the hurt that an injured party is caused to endure as a result of the negligence of the tortfeasor.

 

  • Punitive damages – assessed against reckless or irresponsible behavior to prevent such behavior from the tortfeasor in the future and to deter others from acting in a similar manner.

How is the value of property damage determined?

Property damage valuation may require the services of a professional or expert appraiser. If the property has been completely destroyed so that it is of no further use and has no salvage value, the measure of damages (or the amount you will get for your property damage) can be set at the fair market value of the property immediately before its loss.

If the property can be repaired, the amount of damages can be set at the amount it costs to repair the property, plus the loss of its use by the owner. If the cost to repair the property turns out to be more than the fair market value of the property before the loss, the damages may be limited to the fair market value. In addition to the cost to repair or replace, plus loss of use, interest and loss of profits may also be considered when determining the total value of property damage. With respect to punitive damages (damages awarded for the purpose of punishing the wrongdoer and preventing similar abuses in the future), the amount is often determined after an inquiry reveals the wealth of the wrongdoer. For example, punitive damages in the amount of $10,000 is typically sufficient to deter similar acts or omissions for most people – but if the wrongdoer is a multi-millionaire, a $10,000 punitive damage award may be an insufficient deterrent. An award of damages that is the result of passion or prejudice on the part of a jury – meaning that the award is not supported by the evidence or that it does not bear any correlation to the amount of actual damages suffered – can be set aside by a judge upon review.

 

Am I responsible for injuries to anyone who comes onto my property?

Under common law, the liability to a person injured on real estate is controlled by the status of the injured person.  A different duty is owed by the occupier of the land depending upon whether or not the injured person was a trespasser, a licensee, or an invitee.

 

As far as trespassers are concerned, the occupier ordinarily only owes the duty of refraining from causing intentional harm to the trespasser.  The occupier is under no duty to warn the trespasser of dangers or make the property safe to protect trespassers from harm.  The main exception to this rule arises in the case of small children, who, although trespassing, are provided greater protection through the attractive nuisance doctrine.  Under this doctrine, the owner of a private residential swimming pool could possibly be held liable for the drowning of a five-year-old trespasser if the owner did not maintain adequate fencing around the pool.

 

Regarding licensees, they are on the premises with the permis­sion of the occupier.  The occupier therefore owes them a duty of warning them of dangers which are not obvious and which are known to the occupier.  A host must warn a guest of danger, such as a sliding glass door which is “invisible” if the patio lights are on and the house lights are off.  The occupier, however, does not owe a duty to the licensee to take any steps to learn the presence of unknown dangers and is under no duty to foresee and guard against every possible hazard.

 

Invitees are such people as customers whose presence is sought by the occupier to further the business interests of the occupier.  Another good definition of invitee is a person who goes on the premises of another in answer to an expressed or an implied invitation of the owner for their mutual advantage. There is a duty in this case to take reasonable steps to discover any danger, and there is a duty to warn the invitee or correct the danger.  For example, a store must make a reasonable inspection of the premises to make sure there is nothing on the floor that would be dangerous such as a slippery substance that might cause a customer to fall.  The store should either correct the condition or rope off the area, or, at least, give a warning of a wet floor. 

 

In most States, the Courts have expanded the concept of invitees to include people who are invited when it is apparent that they could not be reasonably expected to do their jobs without coming on the premises.  A letter carrier would be an example.

 

A number of courts have begun to ignore these common law distinctions and hold the occupier liable according to ordinary negligence standards.  In other words, if the occupier, as a reasonable person, should foresee from the circumstances that harm would be caused to a third person, the occupier has the duty to take reasonable steps to prevent this harm.  Some courts have taken a middle-of-the-road position and have abolished the distinction between licensees and invitees so that the occupier owes the same duty of care to all lawful visitors.

 

Most States have adopted a statute commonly referred to as a recreational use statute.  These statutes basically say that a landowner has no duty to warn others of dangers or keep property safe for persons who are allowed to use the property for recreational purposes without charge.

How effective is a ‘waiver of liability’?

A waiver or release is the intentional and voluntary act of relinquishing something, such as a known right to sue a person, educational institution, or organization for an injury. The term waiver is sometimes used to refer a document that is signed before any damages actually occur.  A release is sometimes used to refer a document that is executed after an injury has occurred. 

 

Many people try to protect themselves by getting everyone they deal with to sign a writing in which others “waive liability” (give up or release) for potential personal injuries. These waivers or releases have become quite common, especially with respect to recreational activities – for example at ski slopes, bicycle rental shops, bungee jump parks, and amusement parks.

 

Courts vary in their approach to enforcing releases depending on the particular facts of each case, the effect of the release on other statutes and laws, and the view of the court of the benefits of releases as a matter of public policy. Many courts will invalidate documents signed on behalf of minors. Also, Courts do not permit persons to waive their responsibility when they have exercised gross negligence or misconduct that is intentional or criminal in nature.  Such an agreement would be deemed to be against public policy because it would encourage dangerous and illegal behavior.

 

What is a “slip and fall” injury?

Slip and fall is the generic term for an injury which occurs when someone slips, trips or falls as a result of a dangerous or hazardous condition on someone else’s property. It includes falls as a result of water, ice or snow, as well as abrupt changes in flooring, poor lighting, or a hidden hazard, such as a gap or hard to see hole in the ground. If you are on someone else’s property and injure yourself as a result of a dangerous condition on the property, the landowner or business proprietor may be liable for your injuries. If you are a property owner and someone injures himself on your land, you may find yourself legally responsible for his or her injuries.

 

What are the basic steps in a civil lawsuit – how does a civil lawsuit proceed in a claim for damages due to a tort such as negligence?

A complaint or petition for relief in a court must be filed within the statutory time limit. A complaint is a general statement of the plaintiff’s claim.  The complaint must describe the actions that led to the claim of a violation (i.e., violation of rights).  The claim will normally be for money damages in a tort case.  The complaint must establish jurisdiction of the court in which it is filed.  For example, if the complain is filed in federal court, it must show diversity of citizenship or that a federal statutory or constitutional question is involved.

 

Service of Process: This involves attaching a copy of the complaint to a summons which is served on the defendant. The summons explains to the defendant what is going on and certain rights that he has. The summons (or process) is delivered by an “officer” of the court.  In some state courts, this can be a deputy sheriff or a professional process server.  Deputy marshals or process servers are used  in federal court.  The summons must normally be served on the individual defendant.  Some states allow service on a member of defendant’s household if the defendant is not available.  A plaintiff must serve a corporate defendant by serving the registered agent or an appropriate officer of the  corporation.

 

In the Answer, the defendant tells his side of the story.  He is supposed to admit facts that are true and deny allegations that are not true.  This answer must be filed within 20 days in federal court and 30 days in state court.  Failure to file an answer can result in a default judgment against the defendant.  This is a judgment for failure to defend that is entered against the defendant just like there had been a trial. The defendant can file a counterclaim against the plaintiff as part of his answer. The effect of the counterclaim is that the defendant is suing the plaintiff in the same action. The plaintiff must file an answer to the counterclaim or a default judgment will be taken against him.

 

Motions are formal requests for the court to take some sort of action. Examples: Motions to Dismiss; Motion for Summary Judgment.  

 

Discovery: This is basically where the plaintiff and defendant get information from each other and other people to use as evidence at trial:

  • Requests for Production of Documents: These are written requests served on the opposing party’s attorney requesting that documents relevant to the case be produced for inspection and copying.
  • Requests for Admission: These are a written set of questions or statements served by a party to a lawsuit on an opposing party which are required to be denied or admitted in writing and returned to the requesting party with in a specified time, usually thirty days. The answering party must admit or deny the truth of each statement. Anything admitted in such a request will be deemed admitted for purposes of trial evidence.
  • Depositions: A deposition is part of pre-trial discovery set up by an attorney for one of the parties to a lawsuit demanding the sworn testimony of the opposing party, a witness, or an expert intended to be called at trial by the opposition. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded by a court reporter and a transcript will be provided to either party if paid for. The deposition can be used in trial either to contradict (impeach) or refresh the memory of the witness, or be read into the record if the witness is not available.

 

Facts have to be in dispute to make a trial necessary.  The Trier of fact can either be a jury or a judge alone, unless a jury is required be law. Prospective jurors are drawn at random from voting lists or other lists (like licensed drivers) and make up the pool from which the juries are picked.

 

Voir dire is used to weed out jurors that may be biased in some way. The judge and the attorneys ask questions about a prospective juror’s knowledge of the case, occupation, relationship to the attorneys or parties, and similar questions.

 

Opening statement: each party’s attorney gives a summary of what he intends to prove.

 

Direct examination of witness – attorney calling the witness will ask the questions. 

 

Cross-examination of the witness -the opposing counsel asks questions. He tries to discredit the  witness.  In redirect examination, the attorney who called the witness tries to undo damage caused by the cross-examination.

 

The witness must have personal knowledge of what he is testifying about.  He must have direct or indirect contact with facts of case, must testify based on his personal knowledge. He cannot give his opinion, unless it is based on his five senses.  An expert witness can give opinions. Hearsay evidence is testimony that is offered by a witness who does not have personal knowledge of the information being given but just heard it from someone else.- generally inadmissible.

 

Closing argument is when each attorney summarizes what he has proven. In a jury trial jury instructions are given to the jury at the end of the case. The instructions tell the jurors what the law is and how to apply the law to the facts that have been proven.

 

An appeal to a higher court can be made by the party who lost the case or if the party who won believes that damages do not conform to the evidence.  There are time limits on appeal. The appellate court makes its decision on selected portions to the transcript of the trial, legal briefs of the attorneys, and oral arguments of the attorneys, if permitted by court.  No witnesses are heard or evidence is presented.

 

What is “immunity”? How does it affect my ability to sue?

Immunity allows certain individuals to be protected from suit. There are two types of immunity: absolute and qualified.

Absolute immunity means that a person cannot be sued for any act done in his or her official capacity, regardless of the person’s intentions. Judges, legislators, and prosecutors carrying out their functions as attorneys generally have absolute immunity.

Qualified immunity offers less protection. In order to successfully sue persons with qualified immunity you will have to prove their conduct violates clearly established rights which a reasonable person would have known about. Police officers generally have qualified immunity.

If I am sued in an auto accident injury case, will my insurance company defend me in court?

When you buy auto insurance, part of the insurance company’s obligation is to provide a defense for you if you are sued over a car accident. The insurance company hires and pays for an experienced attorney to represent you in court. Even though the insurance company selects the lawyer and must approve payment of all legal fees and expenses, the lawyer represents you.

 

What is a lawsuit for “bad faith”

All insurance policies contain an implied obligation applicable to the insurance company of “good faith and fair dealing” towards its insured. When a claim is presented, this implied obligation means that an insurance company can not simply look for reasons not to pay. Instead, the company must make a thorough investigation of the claim, must consider all reasons and circumstances that might support the claim, and must give as much consideration to the financial interest of the insured as it gives to its own financial interest.

If an insurance company refuses to pay a claim that should be paid or offers to settle a claim for less than it knows the claim is worth or denies a claim without adequate investigation, this could give rise to a so-called bad faith claim against the insurance company, i.e., a claim that the company has breached its implied obligation of good faith and fair dealing. If the company is found to have acted in bad faith in its handling of a claim, the insured is entitled to all damages resulting from that action, including certain types of damages that would not be available just for breach of contract. In cases of extreme or outrageous misconduct by an insurance company, the insured also may be entitled to receive punitive damages.

 

If I am sued, can my insurance company settle the case without my consent?

Under most types of liability insurance, the insurance company has the contractual right to settle or defend the case as it sees fit. You normally will have an opportunity to provide input, but the company typically has no obligation to get your consent or approval. A common exception to this involves professional liability policies, such as medical malpractice or architects errors and omissions coverage, under which consent of the insured usually is required for any settlement.

 

What is a ‘reservation of rights’ letter?

If you are sued, the legal complaint filed against you may state several different claims, some of which may be covered by your liability insurance policy and some of which may not be covered. The insurance company is obligated to provide a defense for you if any of the claims could be covered, but the company may not be obligated to pay the damages for certain types of claims. A Reservation of Rights letter from your insurer is a notice that even though the company is proceeding to handle your claim, depending on what happens, certain losses might not be covered by the terms of the policy. By such a letter, the company preserves or “reserves” its right to deny coverage at a later date based on the terms of the policy.

Liability policies, for instance, typically do not provide coverage for damages which you cause intentionally. If you injure someone under circumstances where the injury could have been accidental or could have been intentional, the legal complaint might allege both that your action was “negligent” and that your action was “intentional.” In court, the party suing you will have to prove it was one or the other. In such a case, your insurance company may write a letter saying it will provide you a defense but it will not pay damages if the court finds you caused the injury intentionally. This is an example of a “Reservation of Rights” letter.

 

What is a wrongful death claim?

A wrongful death lawsuit alleges that the decedent was killed as a result of the negligence (or other liability) on the part of the defendant, and that the surviving dependents are entitled to monetary damages as a result of the defendant’s conduct.

This type of claim is different from a normal negligence lawsuit, which is filed by the person injured for the resulting damages. Originally under “common law” (the general legal principles passed from England to the United States over hundreds of years), a wrongful death claim did not exist based upon the reasoning that the claim died with the victim where there was no way to compensate him for damages. Over the years, states have passed “wrongful death statutes” that provide compensation for persons who may have been damaged from the death of the victim as well as an incentive to act carefully and safely. Today, all states have some form of a wrongful death claim action in force.

Who can file a wrongful death claim ?

This will depend on your state’s statutory language, but generally immediate family members (i.e. spouses, children and parents) can pursue a wrongful death claim (although minors until 18 years of age may require a “guardian ad litem” to represent their interests in court). In addition, some states may also extend the potential group of plaintiffs to grandparents, legal dependents, or members of the extended family.

 

What is a business tort?

Business torts generally refer to the intentional and improper interference with the business interests of another.

 

What are some examples of business torts?

  • Unfair competition is very similar to trademark and service mark infringement.  It is unfair competition to imitate signs, store fronts, advertisements, and the packaging of goods of a competitor. The essence of an unfair competition claim is that one business has done something that confuses the public about another business’s product in a way that is so improper that a court needs to stop it or award damages to protect the commercial market.

 

  • Product Disparagement occurs when a person makes a false statement about one businessman’s title to goods or the quality of goods, and the result of the statement causes another person or persons to refrain from dealing with the plaintiff.

 

  • Wrongful Interference with Contracts involves wrongful interference with a person’s contract or with his right to earn a living. This tort can be difficult to prove because of the right of competition.  Generally, it is necessary to prove that the defendant intentionally persuaded another to breach a contract with the plaintiff.

 

  • Wrongful Discharge — under the employment at will doctrine, the employer has historically been allowed to terminate the contract at any time for any reason or for no reason.  Some State Courts and some State Legislatures have changed this rule by limiting the power of the employer to discharge the employee without cause.  Most states recognize two public policy exceptions to the employee-at-will doctrine:

 

  1. One is the whistle-blower defense that protects employees against discharge for reporting illegal conduct or conduct that violates public policy;

 

  1. Another protects employees who refuse to participate in illegal conduct.
  • Conversion is a civil claim that can be brought when a party wrongfully takes another’s money or property. Conversion is any act of control wrongfully exerted over another’s personal property. The control exerted must cause an actual interference with one’s ownership or right of possession.                                                                                                            
  • False Imprisonment involves detaining a person without that person’s consent.  It can take the extreme form of kidnapping or the less extreme for of detaining a shopper for suspected shop­lifting without reasonable grounds. A defense to false imprisonment would be consent of the detainee, or if a store owner had reasonable grounds to believe that the detainee was guilty of shoplifting (shopkeeper’s privilege). 
  • Products liability refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product. This includes the manufacturer of component parts, an assembling manufacturer, the wholesaler, and the retail store owner. Product liability suits may be brought by the consumer or someone to whom the product was loaned. While products are generally thought of as tangible personal property, products liability law has stretched that definition to include intangibles (gas), naturals (pets), real estate (house), and writings (navigational charts).

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