BBR Title Slide Fall 2006 INSTRUCTOR: TROY R. SZABO T ORT L AW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM.

BBR Title BBR Title SlideSlide

Fall 2006Fall 2006

INSTRUCTOR: TROY R. SZABOINSTRUCTOR: TROY R. SZABO

TORT LAWUNIVERSITY OF CALIFORNIA, DAVISPARALEGAL PROGRAM

COURSE OVERVIEWCOURSE OVERVIEW

TORT LAWUNIVERSITY OF CALIFORNIA, DAVISPARALEGAL PROGRAM

ACQUIRE FUNDAMENTALS OF TORT ACQUIRE FUNDAMENTALS OF TORT LAWLAW

ENHANCE CASE ANALYSIS AND ENHANCE CASE ANALYSIS AND EVALUATIONEVALUATIONUNDERSTAND CASE STRUCTURE AND UNDERSTAND CASE STRUCTURE AND TIMELINETIMELINEENHANCE CASE DEVELOPMENT SKILLS ENHANCE CASE DEVELOPMENT SKILLS

ENHANCE DAY-TO-DAY PARALEGAL ENHANCE DAY-TO-DAY PARALEGAL SKILLS SKILLS

COURSE OBJECTIVESCOURSE OBJECTIVES

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

WHAT ARE SOME REAL-WHAT ARE SOME REAL-LIFE EXAMPLES OF TORT LIFE EXAMPLES OF TORT

CASES?CASES?

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.

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

UNSPOKEN ELEMENT OF ALL TORT UNSPOKEN ELEMENT OF ALL TORT CASES:CASES:

•A SOLVENT DEFENDANT WHO CAN PAY DAMAGES

•WHICH MEANS EITHER:

INSURANCE

WEALTH/LIQUID ASSETS

HOWEVER – BANKRUPTCY IMPLICATIONS

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

ANALYTICAL FRAMEWORK: IRACANALYTICAL FRAMEWORK: IRAC

Which Which IIssuesssues are presented; i.e., what are presented; i.e., what general area of law is involvedgeneral area of law is involved

What is the applicable What is the applicable RRuleule of law? of law?

AApplypply the rule to the facts. the rule to the facts.

This produces the appropriate This produces the appropriate CConclusiononclusion..

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: Example: BatteryBatteryIssues framed by facts:Issues framed by facts: A customer A customer strikes a strikes a store clerkstore clerk

RuleRule of law: of law: Unwanted Unwanted touching = touching = batterybattery

Apply rule to facts:Apply rule to facts: The beating = The beating = unwanted touchingunwanted touching

CASE ANALYSIS: A QUESTION TO ASKCASE ANALYSIS: A QUESTION TO ASK

What is a jury likely to do?What is a jury likely to do?

CASE EVALUATION: A QUESTION TO CASE EVALUATION: A QUESTION TO ASKASK

What is the case worth?What is the case worth?

OVERVIEW OF A CIVIL CASEOVERVIEW OF A CIVIL CASE

HOW A CIVIL CASE PROGRESSESHOW A CIVIL CASE PROGRESSESPLAINTIFF FILES A COMPLAINT

DEFENDANT FILES AN ANSWER

THE PARTIES ENGAGE IN 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

ANSWERANSWER

1. WRITTEN RESPONSE OF DEFENDANT TO PETITION OR COMPLAINT

2. IN CALIFORNIA, ANSWER DUE 30 DAYS AFTER SERVICE.

3. IN CALIFORNIA, THE ANSWER MAY BE A GENERAL DENIAL ONLY OR MAY ALSO ALLEGE DEFENSES. IN FEDERAL COURT, MUST RESPOND TO EACH ALLEGATION OF COMPLAINT AND ALLEGE DEFENSES.

DISCOVERYDISCOVERY

1. DISCLOSURES – BASIC REQUIRED INFORMATION.

2. INTERROGATORIES

3. REQUESTS FOR PRODUCTION OF DOCUMENTS

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 KINDS OF LAW FIRMS HANDLE WHAT KINDS OF LAW FIRMS HANDLE TORT LAWSUITSTORT LAWSUITS

PLAINTIFF’S FIRMS: SMALL and LARGE - PRIMARILY CONTINGENT FEE

DEFENSE FIRMS: LARGER, HOURLY FEE, INSURANCE AND CORPORATE CLIENTS

WHAT A LAW OFFICE DOES IN WHAT A LAW OFFICE DOES IN HANDLING TORT LAWSUITSHANDLING TORT LAWSUITS

PLAINTIFF’S LAWYER USUALLY INVOLVED FIRST

BEFORE AND DURING SUIT BOTH PLAINTIFF’S AND DEFENSE FIRM’S GATHER INFORMATION TO EVALUATE THE CASE, AND TO PREPARE FOR NEGOTIATIONS, MEDIATION AND TRIAL

BEFORE AND DURING SUIT BOTH PLAINTIFF’S AND DEFENSE FIRM’S GATHER INFORMATION TO EVALUATE THE CASE, AND TO PREPARE FOR NEGOTIATIONS, MEDIATION AND TRIAL

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

NEGLIGENCENEGLIGENCE

ELEMENTS OF NEGLIGENCE:ELEMENTS OF NEGLIGENCE:

•DUTY OF CARE

•BREACH OF DUTY BY TORTFEASOR (UNREASONABLE CONDUCT)

•CAUSATION OF DAMAGES TO VICTIM (PROXIMATE CAUSE)

•DAMAGES TO VICTIM (ACTUAL HARM)

Remember – all 4 Remember – all 4 elements are required to elements are required to

maintain a claim for maintain a claim for negligence!negligence! DUTY – Name the duty owed – typical to owe DUTY – Name the duty owed – typical to owe

a duty of reasonable carea duty of reasonable care BREACH – How did the tortfeasor breach the BREACH – How did the tortfeasor breach the

duty owed?duty owed? CAUSATION – Two prongs !!CAUSATION – Two prongs !!

– Cause-in-factCause-in-fact ““But for…” (usually one actor or occurrence leading But for…” (usually one actor or occurrence leading

to injury)to injury) Substantial Factor (multiple parties or acts lead to Substantial Factor (multiple parties or acts lead to

injury)injury)– Proximate CauseProximate Cause

DAMAGES – What injury was suffered?DAMAGES – What injury was suffered?

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.

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).).

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

BURDEN OF PROOF ON PLAINTIFF

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

(“Res Ipsa” for short)

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

CAUSATIONCAUSATION

CAUSE-IN-FACT “BUT FOR…”

SUBSTANTIAL FACTOR ANALYSIS

PROXIMATE CAUSE = LEGAL CAUSE

“Proximate cause” means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. 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. There may be more than one proximate cause of an event.

PROXIMATE CAUSE

PROXIMATE CAUSEPROXIMATE CAUSE

CAUSE-IN-FACT

FORESEEABILITY

FORESEEABILITY

PALSGRAF CASE

OTHER EXAMPLES?

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

OTHER EXAMPLES

JOINT AND SEVERAL LIABILITY

MULTIPLE TORTFEASORS MAY ALL BE LIABLE

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

DAMAGES

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 AS WE SAY IN THE PROFESSION, TO “HAVE A CASE.”

EXAMPLES OF DAMAGES?

COMPENSATORY DAMAGES

= DAMAGES TO COMPENSATE THE VICTIM

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?

ECONOMIC VERSUS NON-ECONOMIC DAMAGES

NOMINAL DAMAGES

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

HOW ARE DAMAGES DECIDED IN A CASE AND WHO DECIDES UPON THE AMOUNT?

THE JURY CHARGE:THE JURY CHARGE:

DAMAGE QUESTIONSDAMAGE QUESTIONS

What sum of money, if paid now in cash, would fairly and reasonably compensate Rolando Dominguez for his injuries, if any, resulting from the occurrence in question?

QUESTION _____

Consider the elements of damages listed below and none other. Consider each elements separately. Do not include damages for one element in any other element. Do not include interest on any amount of damages you may find.

Answer separately, in dollars and cents, for damages, if any.

a. Physical pain and mental anguish sustained in the past.

Answer:

b. Physical pain and mental anguish that, in reasonable probability, Rolando Dominguez will sustain in the future.

Answer:

c. Loss of earning capacity that Rolando Dominguez sustained in the past.

Answer:

$50,000.00 - $75,000.00

$25,000.00 - $50,000.00

$67,603.56

d. Loss of earning capacity that, in reasonable probability, Rolando Dominguez will sustain in the future.Answer:

e. Disfigurement sustained in the past.

Answer:

f. Disfigurement that, in reasonable probability, Rolando Dominguez will sustain in the future

Answer:

g. Physical impairment sustained in the past.

Answer:

h. Physical impairment that, in reasonable probability Rolando Dominguez will sustain in the future.

Answer:

$240,408.00

$50,000.00 - $75,000.00

$75,000.00 - $100,000.00

$50,000.00 - $75,000.00

$75,000.00 - $100,000.00

i. Medical care in the past

Answer:

j. Medical care that, in reasonable probability, Rolando Dominguez will incur in the future.

Answer:

$110,234.84

TOTAL RANGE OF POTENTIAL DAMAGE AWARD::

$25,000.00

$768,246.40 - $918,246.40

$813,246.40 - $973,246.40

TOTAL POTENTIAL PREJUDGMENT INTEREST: (Beginning six months after suit was filed)

TOTAL POTENTIAL JURY AWARD:

TOTAL POTENTIAL JUDGMENT:

$45,000.00 - $55,000.00

$768,246.40 – $918,246.40

TORT REFORM “CAPS” ON NON-ECONOMIC AND PUNITIVE DAMAGES

EXAMPLE IN CA.: $250,000 cap on general damages since 1975 (MICRA)

Practice Written Practice Written ExamsExams

While walking up her apartment While walking up her apartment building’s old staircase, Ms. building’s old staircase, Ms. Tumbleena’s foot crashes through the Tumbleena’s foot crashes through the top of one step, splinters flying top of one step, splinters flying everywhere. “Darn it!” she exclaims! everywhere. “Darn it!” she exclaims! “If I’ve told the superintendent once, “If I’ve told the superintendent once, I’ve told him a thousand times – fix I’ve told him a thousand times – fix that staircase!” Mumbling as she that staircase!” Mumbling as she found her way to her apartment.found her way to her apartment.

1. Discuss Ms. Tumbleena’s negligence 1. Discuss Ms. Tumbleena’s negligence claim(s).claim(s).