what is personal injury?

8/15/2019 What is Personal Injury?

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P.I. Cases

A lawsuit (or potential lawsuit) resulting from

injuries caused by the tort of another.

Compare: Workers’ Compensation


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Parties and Attorneys

Plaintiff

Defendant (Tortfeasor)

Plaintiffs Attorneys

Defense Attorneys


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TORT

Civil wrong resulting in injury for which victim

receives compensation in form of money

damages

Injury Personal (physical/mental)

property--real, personal, intellectual

reputation


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TORT CATEGORIES

Intentional

requires intent

Negligence

violation of “reasonable person standard”

Strict Liability

liability without fault

public interest


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Sources of Tort Law

Statutes

Case Law


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Tort vs. Crime

Act--may be the same

Purpose

Standard of Proof

Interest violated

Procedural rules


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Tort vs. Contract

Contract = Agreement

Tort = Obligation imposed by law


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Overview of Tort Case

Investigation & Research (facts & law)

Settlement efforts--demand letter

complaint filed

answer/response filed

cross-complaints/answers

discovery

trial

post trial proceedings


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Preliminary

Considerations

Read chapters 3 & 4 in Nolo Press text


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Preliminary Considerations

Fee Arrangements

Contingent fee: fee v. costs

Statutory limits: Minors, Medical Mal.

Requirement of writing

Investigation

Photos of scene/autos/plaintiff

Witness interviews & statements Police reports

Identity of all defendants


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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

http://www.vcgcb.ca.gov/http://www.vcgcb.ca.gov/


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Preliminary considerations

The uninsured/underinsured defendant

U.M. cases

Arbitration

An Interesting Web site:

http://blogs.findlaw.com/injured/


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Insurance

Automobile

Homeowners/Personal Liability

Product

Errors and Omissions

Umbrella Policies


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Automobile Insurance

Liability

Medical Payments (Med pay)

Comprehensive

Collision

Uninsured Motorist (U.M.)

Underinsured Motorist


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Plaintiff ’s insurance

Fault vs. No-Fault provisions

Subrogation rights of no-fault provisions


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Bad Faith Claims

Intentional Tort

If insurance carrier unreasonably delays

payment on policy

If insurance carrier acts unconscionablytoward 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 anddiagnosis ; Fee is charged for preparation


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Tort Liability — Cal. Civ. Code

7 . (a) Every one is responsible, notonly for the result of his willful acts, but

also for an injury occasioned toanother by his want of ordinary care orskill in the management of his propertyor person, except so far as the latterhas, willfully or by want of ordinarycare, 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

Torts against Property trespass to land, trespass to chattels and

conversion


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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

Every tort has defenses

defenses negate liability even though a “prima

facie” case is present

Defenses are often confused and stated withthe 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

Regaining property

Fresh pursuit

Property taken wrongfully


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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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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

5 .9. (a) A person is liable in a cause of action for sexual harassment under this sectionwhen the plaintiff proves all of the following elements: (1) There is a business, service, orprofessional relationship between the plaintiff and defendant. Such a relationship may existbetween 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 theBusiness 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 plannerloan officer, collection service, building contractor, or escrow loan officer. (C) Executor,trustee, or administrator. (D) Landlord or property manager. (E) Teacher. (F) A relationshipthat 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, orengaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile naturebased on gender, that were unwelcome and pervasive or severe. (3) There is an inability bythe plaintiff to easily terminate the relationship. (4) The plaintiff has suffered or will suffereconomic loss or disadvantage or personal injury, including, but not limited to, emotionaldistress or the violation of a statutory or constitutional right, as a result of the conductdescribed in paragraph (2). (b) In an action pursuant to this section, damages shall beawarded as provided by subdivision (b) of Section 52. (c) Nothing in this section shall beconstrued 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 thissection 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 ordistinction contrary to Section 5 or 5 .5, is liable for each and every offense forthe actual damages, and any amount that may be determined by a jury, or a courtsitting without a jury, up to a maximum of three times the amount of actualdamage 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 5 or 5 .5. (b) Whoever denies theright provided by Section 5 .7 or 5 .9, or aids, incites, or conspires in that denial,is liable for each and every offense for the actual damages suffered by anyperson denied that right and, in addition, the following: (1) An amount to bedetermined 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 theperson denied the right provided by Section 5 .7 in any action brought by theperson denied the right, or by the Attorney General, a district attorney, or a cityattorney. (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

any other law.


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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 Website

G G C


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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

California View Does not depend on status


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Common Law Classifications

a trespasser is a person who enters or remains uponland of another without a privilege to do so;

a licensee is a person like a social guest who is notan 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 purposedirectly or indirectly connected with business dealingsbetween them

R l d Ch i ti (1968)


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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 areasonable 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 1714.3

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 andsocial 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

Negligence Breach

http://www.netlawlibraries.com/http://www.netlawlibraries.com/


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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 orcontrol of defendant

Injury is of type that does not occur withoutsomeone’s negligence

Plaintiff did not voluntarily contribute to owninjury

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

Substantial Factor

Usually more than one defendant whocontribute to accident

Toxic torts


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Example — Auto Accident

X goes through intersection with green lightand 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 soclosely connected to the plaintiff ’s injuries

that the defendant should be held liable

Generally decided by “foreseeability”

NEGLIGENCE AND ORDINARY CARE


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NEGLIGENCE AND ORDINARY CARE-

DEFINITIONS

Negligence is the doing of something which areasonably 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 NEGLIGENCEOne 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 orinaction. 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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IMPAIRED PHYSICAL FACULTIES-AMOUNT OF CAUTION

The amount of caution required of a person

whose physical faculties are impaired is the care

which a person of ordinary prudence withsimilarly impaired faculties would use under

circumstances similar to those shown by the

evidence


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CAUSE--SUBSTANTIAL FACTOR TESTThe 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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CONCURRING CAUSES

There may be more than one cause of an injury. Whennegligent 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 isconcurrent 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


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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 ofthe [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 normalconsequence of the situation created by defendant [__________ (first actor)].

[Extraordinary means unforeseeable, unpredictable, and statistically extremely

improbable.]



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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'snegligence 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 ofthe facts necessary to prove that [his] [her] negligence was not a

cause of plaintiff's injury

P i C A l i


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Proximate Cause--Analysis

Direct Causation Usually proximate cause exists

Intervening Cause

Dependent Intervening Cause Usually proximate cause exists

Independent Intervening Cause

Proximate cause may or may not exist

I t i C D d t


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Intervening Causes--Dependent

Dependent on original tortfeasor

Rescue

Med care/malpractice

Escape attempts

Liability usually exists

Intervening Causes-Independent


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g p

Foreseeable—

Liability Exists

Foreseeable negligence of others

Foreseeable criminal activity of others

Not Foreseeable—

Superseding Acts of God

Unforeseeable acts of others

Gross med mal

Dram shop Act — Calif.


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p

Cal Civ. Code§1714 (b) (c)

Furnishing alcohol does is not proximate

cause of injury to others Exception: Minors

E h ll R l


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Eggshell Rule

You take your plaintiff as you find him

Liability extends to all injuries

D


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Damages

Compensatory

General

Special

Punitive Nominal

G l D


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General Damages

Pain and suffering

Loss of use of limb

Scarring

Loss of society and companionship


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C ll t l S R l


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Collateral Source Rule

Plaintiff is entitled to special damages withoutregard to payment from another source

Defendant shouldn’t benefit from Plaintiff ’s

insurance or other benefits

Collateral Source may seek reimbursement

(subrogation)

P niti e (E emplar ) Damages


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Punitive (Exemplary) Damages

Cal Civ Code 3294

Oppression, fraud, malice

1) "Malice" means conduct which is intended by


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1) Malice means conduct which is intended bythe defendant to cause injury to the plaintiff ordespicable conduct which is carried on by thedefendant with a willful and consciousdisregard of the rights or safety of others.

2) "Oppression" means despicable conduct that

subjects a person to cruel and unjust hardshipin 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 theintention on the part of the defendant of therebydepriving a person of property or legal rights orotherwise causing injury.

Expenses of Litigation


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Expenses of Litigation

Costs

Attorney Fees

Contingent Fees California Rules

Limited Fees—Minors and Med Malpractice

Property Damage


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Property Damage

Fair market value

Not replacement

Loss of Consortium


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Loss of Consortium

Derivative claim of spouse

Not allowed for children in California

(but parents can sue for medical bills)

Assessment of Damages


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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


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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


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Wrongful Death Damages

Loss of society and comfort

Loss of monetary contribution

Calculating Damages


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Calculating Damages

Future Damages Adjust for inflation

Discount for present value

Structured settlement

Often involve annuities

Mitigation of Damages


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Mitigation of Damages

Emotional Distress


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Emotional Distress

Physical injury often required Traditional Exceptions: corpses; collection

agencies; mistransmission of message

California: If conduct is such that one couldeasily believe mental distress

Witnesses/Bystanders: Zone of danger or closerelative

Defenses to Negligence


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Defenses to Negligence

Contributory Negligence—

Complete Bar

Comparative Negligence-Reduces Recovery

Assumption of Risk –Bar

Immunity –

Bar S.O.L. - Bar

Contributory Negligence


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Contributory Negligence

Abolished in California in Li v. Yellow Cab

Exceptions to Rule (where it exists)

Last Clear Chance

Comparative Negligence


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Comparative Negligence

Pure Comparative (California)

50% Rule


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Assumption of Risk


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Assumption of Risk

Express Assumption Signing a release

Implied Assumption of Risk Conduct

Reasonable (RIAR) vs. Unreasonable

Unreasonable = Comparative Negligence

Assumption of Risk—Calif


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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

Immunity


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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

Immunity


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Immunity

Interspousal—

generally abolished But generally excepted from insurance coverage

Parent-Child

Statutes of Limitations


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Statutes of Limitations

CCP 312 et seq

CCP 340


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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 aperson below the age of legal consent, or for injury toor for the death of one caused by the wrongful act orneglect of another,

Childhood Sexual Abuse


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Childhood Sexual Abuse

In an action for recovery of damages suffered as aresult of childhood sexual abuse, the time forcommencement of the action shall be within eight years of the date the plaintiff attains the age ofmajority or within three years of the date the plaintiff

discovers or reasonably should have discovered thatpsychological injury or illness occurring after the ageof majority was caused by the sexual abuse, whichever period expires later, for any of thefollowing actions:

S O L


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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

Tolling of Statute


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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


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Claim/Notice Requirements

Suits against public entity Suits against deceases

Suits against doctors—

notice only


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Standard of Care


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Standard of Care

Skill and learning commonly possessed bymembers of the profession

“Locality Rule”

Emergency Situations Good Samaritan Statutes

Proving the standard of care

Types of Conduct


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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

Defenses


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Defenses

Same as to negligence

Statutes of Limitation are often problems

Damages


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ges

3333.2. (a) In any action for injury against a healthcare provider based on professional negligence, theinjured plaintiff shall be entitled to recovernoneconomic losses to compensate for pain,

suffering, inconvenience, physical impairment,disfigurement and other nonpecuniary damage. (b) Inno action shall the amount of damages fornoneconomic losses exceed two hundred fiftythousand dollars ($250,000).

Legal Malpractice


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g p

Must prove the underlying case in addition tolegal malpractice

Misrepresentation


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p

Intentional—

Fraud Negligent

Innocent

Fraud


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Misrepresentation of Fact Intent to induce other party of rely on fact

Knowledge of Falsity

Justifiable reliance by other party Damages

Misrepresentation of Fact


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Misstatement Failure to disclose where duty exists

Fiduciary relationship

California real estate laws Fact

Not judgment, value, opinion

Exception; Expert

Intent


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Knowledge or knowledge that you don’tknow

Proximate Cause/Reliance


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Victim must justifiably rely on representation

Negligent Misrepresentation


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g g p

All elements the same except intent Statement negligently made

Real estate brokers

Innocent Misrepresentation


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p

Generally no tort action

Relationship to Contract Law


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p

Any misrepresentation is grounds to disaffirmthe contract

Environmental/Toxic Torts


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Private Actions Damages, Injunctions

State A.G./District Attorney

Injunctions, Civil Penalties, Criminal

Private A.G. Actions

EPA/U.S. Department of Justice

Environmental/Toxic Torts


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Negligence Negligence Per se (State and Federal)

Nuisance

Strict Liability Ultrahazardous Activities

Product

Nuisance


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Anything which is injurious to health, including, butnot limited to, the illegal sale of controlledsubstances, or is indecent or offensive to the senses,or an obstruction to the free use of property, so as tointerfere with the comfortable enjoyment of life or

property, or unlawfully obstructs the free passage oruse, in the customary manner, of any navigable lake,or river, bay, stream, canal, or basin, or any publicpark, square, street, or highway, is a nuisance.

Public Nuisance


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A public nuisance is one which affects at thesame time an entire community orneighborhood, or any considerable number ofpersons, although the extent of the

annoyance or damage inflicted uponindividuals may be unequal. Cal Civ. 3480

Private Nuisance


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Every nuisance not included in the definitionof the last section is private.

Strict Liability


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Liability without fault Abnormally dangerous (ultrahazardous

activities)

Animals Products

Animals


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Trespassing animals Non-trespassing—only if dangerous

Inherently dangerous

Known dangerous propensities

California Statute

California Statute — Dog Bite


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3342. (a) The owner of any dog is liable for the damagessuffered by any person who is bitten by the dog while in a publicplace or lawfully in a private place, including the property of theowner of the dog, regardless of the former viciousness of thedog or the owner' s knowledge of such viciousness. A person islawfully upon the private property of such owner within the

meaning of this section when he is on such property in theperformance of any duty imposed upon him by the laws of thisstate or by the laws or postal regulations of the United States, orwhen he is on such property upon the invitation, express orimplied, of the owner.

Abnormally Dangerous Activities


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High degree of risk Risk of serious harm

Risk cannot be eliminated

Not common activity Inappropriateness

Value

Examples


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Abnormally dangerous Crop dusting

Poisonour gasses

Not Dangerous

Airplanes

Irrigation dam

Falling tree

Product Liability


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Not a Tort Refers to Injuries caused by a product

Based on Torts of:

Negligence Strict Liability

Based on contract warranties

Damages


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Personal Injuries Property Damage

Not Economic

Exception for recovery based on contract

Negligence


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Traditional concepts apply Negligence in manufacture, design,

packaging, inspection

Manufacturer responsible for component parts

Based on fault

Privity –not required

Damages—not economic

Warranty


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Hybrid tort and contract Express or Implied

Strict Liability


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Manufacturer and retailer are strictly liabile forinjuries resulting from defective product.

Rationale: Risk Assignment

Cause of Action


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Product sold Product defective

Product caused injuries

Defect existed at time product leftdefendant’s hands

Item manufactured or sold by defendant

Possible Plaintiffs


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Purchaser User

Bystander

Types of Defects


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Manufacture Design

Warning

Structural Defects

Lack of Safety Features

Defenses


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Negligence: Comparative

Assumption of Risk

Warranty

Disclaimer

Defenses-Strict Liability


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Assumption of risk Unforeseeable use of product

Defenses to all Product Liability


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Statute of limitations

Defamation


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Invasion of reputation of person or groupresulting from libel or slander

Cal. Civ. Code§

44 et seq

New York Times v. Sullivan


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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

Libel


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45. Libel is a false and unprivilegedpublication by writing, printing, picture, effigy,or other fixed representation to the eye, whichexposes any person to hatred, contempt,

ridicule, or obloquy, or which causes him tobe shunned or avoided, or which has atendency to injure him in his occupation.

Libel


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45a. A libel which is defamatory of the plaintiff withoutthe necessity of explanatory matter, such as aninducement, innuendo or other extrinsic fact, is saidto be a libel on its face. Defamatory language notlibelous on its face is not actionable unless theplaintiff alleges and proves that he has sufferedspecial damage as a proximate result thereof.Special damage is defined in Section 48a of thiscode.

Slander


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46. Slander is a false and unprivileged publication, orallyuttered, and also communications by radio or any mechanical orother means which: 1. Charges any person with crime, or withhaving 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 byimputing to him general disqualification in those respects whichthe office or other occupation peculiarly requires, or by imputingsomething with reference to his office, profession, trade, orbusiness 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


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Not Required Libel

California limits to libelous on face

Slander per se

Required

Slander (except for slander per se)

Calif: Libelous but not on its face

Slander per se


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Allegations that plaintiff Engaged in criminal activity

Suffers venereal or other such disease

Unfit to conduct business

Sexual misconduct

“Presumed Damages”


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When actual harm need not be shown Normal, expected damages

Matters of Public Concern require actual

damages

Elements of Cause of Action


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Reputation harmed Statement interpreted as referring to plaintiff

One interpretation must be defamatory

False statement Publication

Malice if required

The Statement


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Tendency to harm reputation Reasonable interpretation

Statement must be False

Statement of fact not opinion Refer to a living person

Publication


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Read or heard or seen by someone otherthan plaintiff

Every repetition is also a publication

Malice if public figure

Public Figures


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Politicians Performers

People cast into limelight or news

Damages


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Pecuniary loss (specials) Non-pecuniary (general damages)

Punitive--Malice


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Privileges


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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

Invasion of Privacy


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Appropriation of Plaintiff ’s name for

defendant’s financial gain

Public disclosure of private life

Unreasonable intrusion

False Light

Defamation--Property


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Trade Libel False statement about business or goods

Slander of Title

False statement in reference to property rights

Vicarious Liability


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Liability for torts of another even though nofault of one’s own

A form of strict liability

Respondeat Superior

Employer-Employee


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Employer vicariously liable for torts ofemployee 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


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No liability if employee on“frolic of his own

”

Liability resumes when employee returns to

job

I.e. detours

Employers-Independent

Contractors


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Independent Contractor defined: hired to produce aresult; all actions not subject to control; label notimportant

General Rule—No liability

Exceptions

Nondelegable duties—

owners of land

Peculiar Risk Doctrine

Illegal Acts

Physicians—not in California

Statutory Vicarious Liability


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Owners of Automobiles Parents Veh. Code 17707

Permissive drivers Veh. Code 17150 et seq

Parents Civ. Code 1714.1 et seq.

Joint Venture/Partnership


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Agents of one another in pursuing jointventure or partnership business.

Joint and severally liable


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If two or more defendants acted jointly orconcurrently 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


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Cal Civ Code 1430-1432 Establishes several liability for non-economic

damages

Liability according to fault

Contribution


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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


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Any party entitled to court hearing beforecommencement of trial or

Settling party can give notice to all ofsettlement 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


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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 recoverywhich plaintiff is able to recover from the

nonagreeing defendant

Sliding Scale


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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


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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 insurancecompany rather than estate if claim is within

policy limits; serve insurance company

-- Medical malpractice—90 day notice

Demand Letter


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Offer to settle case

Basis of liability

Special Damages

Injuries Always attach copies of specials and medical

report

Litigation


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File Complaint Optional Judicial Council Forms

Auto Accidents, Product Liability, Premises

Liability, General Negligence

County where accident happened ordefendant resides

Prayer

Have Summons Issued

Service


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Personal

Substituted

Acknowledgement and Waiver

Publication

Out of State

Responsive Pleadings


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Answer Optional Judicial Council Form

Demurrer

Motions

Time for Response

Discovery: CCP 2016 et seq.


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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


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CCP§94 Combination of 35 Interrogatories, Demands

to Produce and Admissions

One deposition

Med Exam and Expert Disclosure Case Questionnaire

Request for Statement Identifying Witnessesand Evidence

Pre Trial Proceedings


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Case Management Conferences

Settlement Conferences

CCP 998 Offers

Trial Procedures


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Subpoena witnesses

Subpoena documents

Notify Experts

Post Trial Procedures


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Motions

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

Collection

Appeal


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