Spring 2006 Spring 2006 INSTRUCTOR: TROY R. SZABO INSTRUCTOR: TROY R. SZABO TORT LAW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM
Mar 26, 2015
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