BBR Title BBR Title SlideSlide

Spring 2006Spring 2006

INSTRUCTOR: TROY R. SZABOINSTRUCTOR: TROY R. SZABO

TORT LAWUNIVERSITY OF CALIFORNIA, DAVISPARALEGAL PROGRAM

COURSE REVIEWCOURSE REVIEW

TORT LAWUNIVERSITY OF CALIFORNIA, DAVISPARALEGAL PROGRAM

WHAT IS A TORT?WHAT IS A TORT?

TORT: A wrongful injury to TORT: A wrongful injury to a person or his/her a person or his/her

property.property.

OrOr

A civil wrong against A civil wrong against anotheranother

““Person” may include an Person” may include an actual living person or a actual living person or a business, such as a business, such as a partnership or corporation.partnership or corporation.

BROAD CATEGORIES OF TORT BROAD CATEGORIES OF TORT LAW:LAW:

•NEGLIGENCE

•INTENTIONAL TORTS

•STRICT LIABILITY

•DEFENSES

+ Special Tort Actions

Negligence Actions CoveredNegligence Actions Covered

Simple NegligenceSimple Negligence Negligent Infliction of Emotional Negligent Infliction of Emotional

DistressDistress Res Ipsa LoquitorRes Ipsa Loquitor Negligence per seNegligence per se Premises LiabilityPremises Liability Vicarious LiabilityVicarious Liability

Intentional torts Intentional torts coveredcovered

AssaultAssault BatteryBattery False ImprisonmentFalse Imprisonment Intentional Infliction of Emot. DistressIntentional Infliction of Emot. Distress Fraud and MisrepresentationFraud and Misrepresentation Abuse of ProcessAbuse of Process Invasion of PrivacyInvasion of Privacy DefamationDefamation Trespass to landTrespass to land Trespass to chattelTrespass to chattel ConversionConversion

Strict LiabilityStrict Liability

Domesticated Animal OwnershipDomesticated Animal Ownership Wild Animal OwnershipWild Animal Ownership Products LiabilityProducts Liability

Special Tort Actions Special Tort Actions CoveredCovered NuisancesNuisances

– Private Private – PublicPublic

ORDINARY CARE: That ORDINARY CARE: That degree of care that would degree of care that would be exercised by a be exercised by a reasonably prudent person reasonably prudent person under the same or similar under the same or similar circumstances.circumstances.

Stepping Back…

Put differently, “Negligence” Put differently, “Negligence” is:is:DoingDoing something that a something that a

reasonably careful person reasonably careful person would not do (a negligent would not do (a negligent actact)) ORORFailing to doFailing to do something that something that a reasonably careful person a reasonably careful person would do (a negligent would do (a negligent omissionomission).).

COMMON ELEMENTS OF ALL TORT COMMON ELEMENTS OF ALL TORT CASES:CASES:•DUTY

•BREACH OF DUTY

•CAUSATION

•DAMAGES

PUBLIC POLICY OBJECTIVES IN TORT PUBLIC POLICY OBJECTIVES IN TORT LAWLAW

Accountability: Protecting persons Accountability: Protecting persons and and property property

Deterrence: Minimum standards of Deterrence: Minimum standards of social social conduct conduct

Allocating Losses: Placing the Allocating Losses: Placing the economic economic burden where it can burden where it can best be afforded best be afforded

ANALYZING TORT CASESANALYZING TORT CASES

CASE ANALYSIS: GENERAL TO CASE ANALYSIS: GENERAL TO SPECIFICSPECIFIC

Example: Customer walks up Example: Customer walks up to a store clerk and strikes to a store clerk and strikes him until he collapseshim until he collapses

CASE ANALYSIS: GENERAL TO CASE ANALYSIS: GENERAL TO SPECIFICSPECIFIC

General tort topic:General tort topic: Example: Example: intentionalintentionalSpecific tort:Specific tort: Example: BatteryExample: BatteryIssues framed by facts:Issues framed by facts: A customer strikes A customer strikes a store a store clerkclerkRuleRule of law: of law: Unwanted Unwanted touching = touching = batterybatteryApply rule to facts:Apply rule to facts: The beating = The beating =

unwanted touchingunwanted touching

HOW A CIVIL CASE PROGRESSESHOW A CIVIL CASE PROGRESSESCOMPLAINT/PETITION

ANSWER

DISCOVERY

PRETRIAL PROCEDURES AND MOTIONS

TRIAL

POST-TRIAL AND APPEAL

ALTERNATIVE DISPUTE RESOLUTION

COMPLAINT OR PETITIONCOMPLAINT OR PETITION1. A “PLEADING” FILED BY PLAINTIFF IN COURT THAT

INITIATES A LAWSUIT.

2. IN CALIFORNIA, CALLED A “COMPLAINT.”

3. MUST BE SERVED ON DEFENDANT; GENERALLY SERVICE IS HAND DELIVERY BY AUTHORIZED OFFICER (USUALLY A SHERIFF OR DEPUTY). CAN ALSO SERVE BY MAILING.

4. NATURAL PERSON IS SERVED “IN PERSON.” CORPORATION IS SERVED BY SERVING “REGISTERED AGENT,” PRESIDENT OR VICE-PRESIDENT.

COMPLAINT CONT’D:

5. STATUTE OF LIMITATIONS: FOR MOST INJURY AND PROPERTY DAMAGE CASES = 2 YEARS

6. STATUTE OF LIMITATIONS: FOR DEFAMATION, FALSE ARREST = 1 YEAR

7. LIMITATIONS PERIOD GENERALLY BEGINS TO RUN WITH DATE OF THE INCIDENT IN QUESTION

DISCOVERYDISCOVERY

1. DISCLOSURES – BASIC REQUIRED INFORMATION.

2. INTERROGATORIES

3. REQUESTS FOR PRODUCTION

4. REQUESTS FOR ADMISSION

5. MOTION FOR INDEPENDENT MEDICAL EXAMINATION

6. DEPOSITIONS ON WRITTEN QUESTIONS

7. ORAL/VIDEO DEPOSITIONS

PRETRIAL PROCEDURES AND PRETRIAL PROCEDURES AND MOTIONSMOTIONS

1. COURT ISSUES ON ITS OWN, OR AT REQUEST OF ONE OR MORE PARTIES, A CASE MANAGEMENT DOCUMENT SETS DEADLINES, INCLUDING A SETTLEMENT CONFERENCE AND TRIAL SETTING CONFERENCE. A CASE MAY BE PUT ON THE “FAST TRACK” – GOES TO TRIAL WITHIN A YEAR OF FILING.

2. POSSIBLE JOINDER OF ADDITIONAL PARTIES – ADDITIONAL DEFENDANTS, INTERVENORS OR THIRD PARTY DEFENDANTS

PRETRIAL PROCEDURES AND PRETRIAL PROCEDURES AND MOTIONS CONT’DMOTIONS CONT’D

3. MOTIONS AND RESPONSES FILED BY THE PARTIES ASKING THE JUDGE TO MAKE A RULING OR ORDER ON SOME MATTER RELATING TO THE CASE. EXAMPLE: MOTION FOR SUMMARY JUDGMENT OR DEMURRER.

4. PRETRIAL CONFERENCE: i.e., MOTIONS IN LIMINE.

TRIALTRIAL1. JURY OR NON-JURY

2. JURY SELECTION (VOIR DIRE), IF APPLICABLE

3. OPENING STATEMENTS

4. PRESENTATION OF EVIDENCE

5. CHARGE CONFERENCE

6. COURT’S CHARGE

7. CLOSING ARGUMENTS

8. DELIBERATIONS

7. CLOSING ARGUMENTS

9. VERDICT

POST-TRIAL AND APPEALPOST-TRIAL AND APPEAL1. MOTION FOR ENTRY OF JUDGMENT OR JUDGMENT

N.O.V.

2. MOTION FOR NEW TRIAL

3. NOTICE OF APPEAL

4. REQUEST FOR TRANSCRIPT AND STATEMENT OF FACTS

5. APPELLATE BRIEFS

6. ORAL ARGUMENTS AT COURT OF APPEALS

7. APPEAL TO HIGHER COURT – i.e., CALIFORNIA SUPREME COURT

ALTERNATE DISPUTE RESOLUTION ALTERNATE DISPUTE RESOLUTION (ADR)(ADR)

ARBITRATION

MEDIATION

MINI-TRIAL OR SUMMARY JURY TRIAL

MINI-TRIAL OR SUMMARY JURY TRIALMINI-TRIAL OR SUMMARY JURY TRIAL

BY AGREEMENT, CASE IS PRESENTED TO SMALL JURY IN ABBREVIATED FASHION. PARTIES AGREE IN ADVANCE TO BE BOUND BY OUTCOME OR TO USE OUTCOME TO AID SETTLEMENT NEGOTIATIONS.

ARBITRATIONARBITRATION

CASE IS DECIDED BY NEUTRAL 3RD PARTY OTHER THAN JUDGE FOLLOWING ABBREVIATED PRESENTATION OF EVIDENCE.

MEDIATIONMEDIATION

ASSISTED SETTLEMENT CONFERENCE LED BY NEUTRAL 3RD PARTY WHO ACTS AS FACILITATOR AND AN “ADVOCATE FOR SETTLEMENT.” MEDIATOR CANNOT DECIDE CASE OR MAKE RULINGS, BUT ASSISTS PARTIES IN REACHING MUTUALLY AGREEABLE RESOLUTION.

WHAT A LAW OFFICE DOES IN WHAT A LAW OFFICE DOES IN HANDLING TORT LAWSUITS CONT’DHANDLING TORT LAWSUITS CONT’D

INFORMATION BOTH SIDES TRY TO OBTAIN:

ACCIDENT REPORT, IF ANY

PHOTOGRAPHS MEDICAL RECORDS

MEDICAL BILLS LOST WAGE INFORMATION

WITNESS STATEMENTS

PROJECTION OF FUTURE LOSSES

THE CONCEPT OF DUTYTHE CONCEPT OF DUTY

•USE REASONABLE CARE TO AVOID INJURING OTHERS OR THEIR PROPERTY

•SCOPE OF DUTY: FORESEEABLE PLAINTIFFS, OR CLASS OF PERSONS TO BE PROTECTED

•REASONABLE PERSON/REASONABLE CARE

NEGLIGENCE: The failure NEGLIGENCE: The failure to exercise ordinary care.to exercise ordinary care.

ORDINARY CARE: That ORDINARY CARE: That degree of care that would degree of care that would be exercised by a be exercised by a reasonably prudent person reasonably prudent person under the same or similar under the same or similar circumstances.circumstances.

WHO DECIDES HOW A WHO DECIDES HOW A REASONABLY PRUDENT REASONABLY PRUDENT PERSON WOULD HAVE PERSON WOULD HAVE

ACTED?ACTED?

MATCHING SKILLS, MATCHING SKILLS, DISABILITIES AND DISABILITIES AND CIRCUMSTANCESCIRCUMSTANCES

PROFESSIONAL PROFESSIONAL NEGLIGENCE OR NEGLIGENCE OR “MALPRACTICE”“MALPRACTICE”

SPECIAL DUTY BASED SPECIAL DUTY BASED UPON SPECIAL UPON SPECIAL RELATIONSHIPRELATIONSHIP

EMPLOYER/EMPLOYEE

PARENT/TEACHER

INNKEEPER/GUEST

COMMON CARRIER/PASSENGER

PROOF OF NEGLIGENCE

THE BURDEN OF PROOF IS ON PLAINTIFF

RES IPSA LOQUITUR (rays-ipsuh-lo-kwit-tour)

(“Res Ipsa” for short)

Hospital burn example, p. 51

Asphalt example, p. 52

Elements:1. Exclusive control of defendant2. Ordinarily would not occur without negligence

VIOLATION OF STATUTE

NEGLIGENCE PER SE

MAY PRECLUDE DEFENDANT FROM INTRODUCING EVIDENCE OF DEGREE OF CARE

SWIMMING POOL EXAMPLE, p. 53

PROXIMATE CAUSEPROXIMATE CAUSE

CAUSE-IN-FACT

FORESEEABILITY

FORESEEABILITY

In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.

CONTRIBUTORY NEGLIGENCE:

The plaintiff’s own negligence which caused or contributed to cause the occurrence or her/his injury.

PROPORTIONATE OR

COMPARATIVE RESPONSIBILITY

PLAINTIFF AND TORTFEASOR(S)

EACH IS A CONTRIBUTING CAUSE

MULTIPLE TORTFEASORS

JOINT AND SEVERAL LIABILITY

MULTIPLE TORTFEASORS MAY ALL BE LIABLE

IN SOME CIRCUMSTANCES, ONE TORTFEASOR MAY BE LIABLE FOR ENTIRE AWARD

DAMAGES = The injury or loss the plaintiff suffered as a result of the defendant’s “tortious” conduct.

DAMAGES MUST EXIST TO HAVE A LEGAL CAUSE OF ACTION, OR TO “HAVE A CASE.”

COMPENSATORY DAMAGES

GENERAL DAMAGES: pain & suffering from an injury; grief from the death of a family member. Other examples?

SPECIAL DAMAGES: out-of-pocket damages such as medical bills & lost wages. Other examples?

PUNITIVE OR EXEMPLARY DAMAGES

INTENTIONAL TORTS

GROSS NEGLIGENCE: MORE THAN MOMENTARY THOUGHTLESSNESS OR INADVERTENCE BUT SUCH AN ENTIRE WANT OF CARE AS TO EVIDENCE ACTUAL CONSCIOUS INDIFFERENCE TO THE RIGHTS AND WELFARE OF THOSE AFFECTED BY THE CONDUCT.

AWARDED TO PUNISH DEFENDANT AND MAKE AN EXAMPLE, NOT TO COMPENSATE THE PLAINTIFF

PAIN & SUFFERING DAMAGES ARE NOT PUNITIVE DAMAGES