Torts can be divided into three categories, depending upon the types of action that is involved in creating the Tort. These categories are (1) Intentional Torts; (2) Strict Liability; and (3) Negligence. These categories differ so much that each must be discussed in more detail.
As the name implies, a Willful (or Intentional) Tort is an action that is taken by the Tortfeasor with the deliberate intent to harm another. “Willful” implies intent or purpose to injure. Further, it involves elements of intent or purpose and malice or ill will, but malice or ill will may be shown by indifference to safety of others, with knowledge of their danger; or failure to use ordinary care to avoid injury after acquiring such knowledge.
CONSUMER APPLICATION
Sarah’s neighbor accidentally ran over her cat when the cat was in the neighbor’s driveway. While this was clearly an accident, as the cat had been sleeping behind the wheel of the neighbor’s car parked it the driveway, the more Sarah thought about it, the madder she became. In retaliation, that night Sarah threw a poisoned steak into the neighbor’s yard whose dog ate the steak and died. Unfortunately for Sarah, another neighbor happened to see her throw the steak over the fence.
Sarah would be guilty of a Willful Tort.
In certain situations, an individual may be liable for damages on the basis of law, regulation, or court decision (or any combination thereof). This area of liability seems to expand as society demands more responsibility for the action of others. To put it simply, if a person performs an act that a reasonable person could construe to be harmful to others, they could be held liable under this type of liability.
This type of liability is primarily applied when dangerous &/or hazardous materials are involved, or dangerous animals are involved. In these situations, regardless of how many precautions the owner or operation takes, the potential for damage to others is so great that they can be held liable, even without any intent to do harm.
CONSUMER APPLICATION
At the winter quarters of Barnes Circus, the principal equestrian performer offers riding lessons to children in the community to supplement the circus income. She uses trained circus horses for this purpose, and is quite popular as children love to ride the highly trained, intelligent and very tame animals. However, her son is an animal trainer and for a short period each year, he brings 2 lions and 2 tigers to his mother’s quarters, and works with the animals in cages he erected near her home.
One afternoon, after working with a tiger that was in a circular workout cage; the son left the tiger momentarily to check on another animal. At that moment, one of the mother’s students hurried to the barn where the horses were kept and not noticing the tiger, brushed against the cage near where the tiger was resting. The tiger was startled and swung at the child in reaction to the sound, inflicting serious damage to the child’s arm.
By the fact that wild animals were kept in this area, Strict Liability would be applied in this case. (Incidentally, this situation – the riding instructions and the wild animals kept on the property – actually exists in a community in Florida where many circus people winter. The tiger attack is fictional.)
Negligence is the most important of all of these categories as it is evoked more than the other categories combined and will be discussed in detail.
F Note: Liability Insurance concerns itself with negligent torts
While there are a multitude of legal definitions, the one that “says it all” is:
“The omission to do something which a reasonable person, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent person would not do.”
Negligence can be broken down into the following types, which does not list all of the newer types, but emphasizes the broad reach of this topic.
Actionable Negligence
Collateral Negligence
Comparative Negligence
Concurrent Negligence
Contributory Negligence
Criminal Negligence
Culpable Negligence
Degrees of Negligence
Gross Negligence
Hazardous Negligence
Legal Negligence
Ordinary Negligence
Slight Negligence
Subsequent Negligence
Wanton Negligence
Willful Negligence (not to be confused with Willful Torts)
(Whew!)
All of this can be simply stated:
F If there is negligence involved, an individual can be held legally liable for damages.
In many jurisdictions, by law or court ruling, everyone is expected to act as a reasonable person would act under the particular set of circumstances. In those jurisdictions which have laws, statutes or ordinances setting forth what a reasonable person actually is, any violation is considered as negligence per se and the offense is a statutory violation.
In order to establish negligence, there must be the three elements of Tort Law, plus one:
1. Existence of legal duty from defendant to plaintiff,
2. breach of duty, and
3. damage as proximate result, are used, plus
There must be evidence that the negligent act is the proximate cause of loss.
The first three elements have been discussed previously, but the additional element, the definition of “proximate cause” is of interest and should be discussed. Proximate Cause is defined as “That which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” “The last negligent act, contributory to an injury, without which such injury would not have resulted.” Also defined as “the dominant cause” the moving or producing cause”, “the efficient cause – one that necessarily sets the other causes in operation.”
Sometimes, situations or circumstances will intervene between the act that caused the loss, and the loss itself, but it will still remain as a proximate cause situation (such as in a chain reaction) as long as there is no “casual element” that would interrupt the sequence. Conversely, when some event occurs, which intervenes in the “chain”, the negligent party is not liable because the proximate cause does not exist. The following Customer Applications illustrate the differences.
CONSUMER APPLICATION
A new computer program installed in Interstate Hydraulics shut down part of a testing program, which created additional pressure at a valve regulating fuel for the testing device. This caused the valve to malfunction, and a pipe burst with the additional pressure, hurling pieces of steel pipe into an adjacent parking lot, creating considerable damage to several expensive automobiles.
In this situation, the malfunctioning computer program would be considered as the proximate cause of the loss to the automobiles.
CONSUMER APPLICATION
Interstate Hydraulics did not immediately repair the adjacent parking lot as a result of the pieces of steel pipe being hurled into the parking lot as their insurance company’s claims adjusters needed to send a particular claims adjuster out to test the surface of the parking lot which was roped-off to separate it from the rest of the operating parking lot.
During this interim period, a parking lot customer backed his car into the damaged area, even though traffic cones separated the immediate area. A piece of sharp pipe that was embedded in the macadam of the parking lot as a result of the pipe explosion cut his rear tire so badly that an expensive decorative steel wheel was destroyed.
In this situation, there would be no proximate cause and Interstate Hydraulics could not be held responsible for the damage to the tire and wheel.
The courts have defined Gross Negligence in various ways, depending upon the particular case application. The basic definition of Gross Negligence is the intentional failure to perform as manifest duty in reckless disregard of the consequences as affecting the life or property of another; such a gross want to care and regard for the rights of others as to justify the presumption of willfulness and wantonness.
One court decision defined Gross Negligence as “The want of ordinary diligence and care which a usually prudent man takes of his own property of like description.” This relatively simple definition can be simply stated as “take care of another’s property as you would your own” – a somewhat variation of the Golden Rule.
Gross Negligence arises when even the slightest care is not used, and may involve the safety or others or other’s property, or reckless, irresponsible, wanton and willful misconduct.
CONSUMER APPLICATION
Bill purchases a new SUV with four-wheel drive. He had never driven such a vehicle before and decided to try it out in the nearby mountains. Bill invites his girlfriend Susan along to “get some fresh air” and have a picnic in the mountains.
In an attempt to impress his girlfriend, he takes a lumber road off the main road through Snow Pass. While attempting to climb a very steep grade, he loses control of the SUV, and it turns over, injuring Susan.
Bill is liable for damages to Susan as he showed Gross Negligence in his actions.
Contributory Negligence is where both parties to an action which causes damages to one or both parties, “point their fingers at each other.” It is the act or omission amounting to want of ordinary care on part of a complaining party, which, concurring (in agreement) with defendant’s negligence, is the proximate cause of injury.
In the determination of negligence, the last consideration is whether the person who was injured or damaged was negligent. The reasoning is that the guilty party must pay, and the injured party, if innocent of the actions, should not pay. Basically, the theory is that if each party is somewhat negligent, each party must bear its own share of the injury. This is determined by law in many jurisdictions.
CONSUMER APPLICATION.
Acme Products created a new computerized self-propelled miniature Jeep. They sold 20 of the Jeeps to the Toys Deluxe Company for the express purpose of their determination as to the marketability of the toy. The boxes in which they were contained stated “Sample Toys Only, Not To Be Sold or Used For Any Purpose Other Than Test Purposes.” The Jeep had a sticker on the windshield when shipped that stated “For Test Purposes Only.” Toys Deluxe gave two of the jeeps to the children of major stockholders. Both Jeeps turned over on the children, badly injuring one, as the length of the vehicle has not been designed properly in relation to the circumference of the wheels. The stockholders, who in turn sued Acme, sued toys Deluxe.
While Acme was responsible for the design flaws, Toys Deluxe could be held liable under the Contributory Negligence rule, as they distributed the toys to children in defiance of its stated purpose – that of testing the vehicle.
CONSUMER APPLICATION
During the evening, Jones is travelling down the Interstate when he remembers that he had forgotten something, so he makes an illegal U-turn across the median. His car was struck by a car driven by Smith who was travelling at 20 miles over the speed limit and didn’t have his lights on.
Neither driver exercised the required standard of care.
The major difficulty in Contributory Negligence is that in many cases the contributions of one party may be small, but the injuries to that party may be large. In some situation, similar to the automobile accident example in the Consumer Application above, it is possible that neither party will pay damages. The Comparative Negligence concept attempts to assess the responsibilities of each party by determining the responsibilities of each. This concept has been adopted in several jurisdictions because of the fairness of the results. However, it creates certain responsibilities on the judge and jury to establish the percentages of negligence.
CONSUMER APPLICATION
Sampson drives his SUV through a stop sign without stopping or slowing-down. He struck a pickup driven by Miller, causing considerable damage to the pickup and injuring Miller. Miller did not have his lights on even though it was dusk.
Obviously both parties were at fault, however Sampson’s negligence far exceeded that of Miller. Therefore, awards for liability would heavily favor Miller.
“Last Clear Chance” concept is used primarily as a defense against contributory negligence by a plaintiff, if the defendant had an opportunity to avoid an accident but did not do so. By not avoiding the accident, then the defendant’s failure to take the proper action supersedes the allegation of contributory negligence.
The doctrine implies thought, appreciation, mental direction, and a lapse of sufficient time to effectively act upon impulse to save another from injury. Some court rules have declared that although the plaintiff’s negligence continued until accident, he may recover if the defendant, after knowing of plaintiff’s danger or by exercise or ordinary care could have known, could have avoided injury by ordinary care. This doctrine is sometimes referred to as the “humanitarian doctrine.”
CONSUMER APPLICATION
An automobile breaks down at night on a heavily traveled highway. The operator puts on the emergency flashing lights, and places an emergency reflector from an emergency kit in the trunk of the car, several feet at the rear of the auto. Another automobile driver ignores all of the warning lights and the reflectors and crashes into the stalled auto. The driver is said to have had the “last clear chance” to avoid the accident and since it was the primary cause of the accident, it overrides the contributory negligent actions of the driver of the stalled auto.
CONSUMER APPLICATION
A 4-lane highway is being repaired and the lanes are marked and traffic cones are so placed that all traffic merges to the right. A driver continues in the right lane and then goes around two of the cones and turns his car into a space between cars in the right lane. While there was adequate room to enter the lane, the driver obviously was negligent in avoiding the traffic signals and cones. The driver of the car that would have been in that space but now is behind the entering car, decides that since he is driving a big pickup with a steel pipe front bumper, he is going to “teach that driver a lesson.” He speeds up before the entering auto has completely entered the space, causing considerable damage to the auto, but very little to the pickup. The driver of the pickup had the “last clear chance” to avoid the accident, even though the driver of the automobile had negligently entered the space (which the pickup driver felt was his).
The Assumption of Risk exists where none of the fault for an injury rests with the plaintiff, but where the plaintiff assumes consequences of injury occurring through fault of defendant, third party, or fault of no one. This doctrine is usually based upon a master-servant relationship, but courts have held that it can be much more far reaching.
CONSUMER APPLICATION
Wilson is an experienced explosives expert. He signs an employment contract with Benton Mining Company to perform duties in his field of expertise. Standard wording for employment contracts was included in the contract, with no specific reference to the risk of explosives inherent in his job. (continued)
Wilson places explosives at a particular location in a mine, sets the timer, and then leaves the area. In his haste he stumbles and falls, spraining his ankle and barely escaping with his life. He suffers serious physical injuries as a result.
By accepting the job Wilson accepted the risks inherent in the position, so he would not be in any position to claim damages for his injury. However, if it can be proven that another employee or the company was negligent in placing an obstacle in his path of which he would not have been aware, then he possibly could hold the company negligent.
Expanding the negligence factors even more, the law assumes that a person will take every precaution after a loss, to make sure that there is no further damage as a result of the loss. It is assumed that any person that suffers a loss will take very opportunity to make sure that further losses are not suffered because of the original situation. Black’s Law Dictionary simply states that the Doctrine of Avoidable Losses is a “Doctrine that imposes duty on a person injured so as to minimize damages.”
CONSUMER APPLICATION
While using a cell phone, Bob runs his car into the back of a van carrying the works of art by the van owner, Minnie Adams. The back van doors were hard to open, and the glass had been broken. Minnie makes an appointment for the following day to have her van appraised for damage by the claims adjuster of her insurance company. That night a sudden rainsquall damages several of her most valuable paintings.
Minnie cannot hold Bob responsible for added damage to the paintings as she had the opportunity to move the van into a garage, remove the paintings, or covering the broken glass so that the rain would not damage the contents of the van. The loss to the paintings was an avoidable loss.
In the law of Negligence, and in particular with reference to trespass on real estate, invitation is the act of a person who solicits or incites others to enter upon, remain in, or make use of, his properties or structures thereon, or who so arranges the property or the means of access to it or of transit over it as to induce the reasonable belief that he or she expects and intends that others shall come upon it or pass over it. Therefore, the owner of a store, theatre or amusement park “invites” the public to come upon his premises for such purposes as are connected with its intended use.
CONSUMER APPLICATION
Burt’s Drayage Service’s truck, heavily loaded with produce, approached a railroad intersection that had a heavy growth of trees and bushes on both sides, blinding the drivers from seeing oncoming trains. The gate malfunctioned and the train hit the truck. The courts ruled that the fact that the safety gates at a railroad crossing which should be closed in case of danger, are left standing open, is an “invitation” to the traveler on the highway to cross.
A license is a passive permission on the part of the owner of premises, with references to other persons entering upon or using them, while an invitation implies a request, solicitation, or desire that they should do so. An invitation may be inferred where there is a common interest or mutual advantage; while a license will be inferred where the object is the mere pleasure or benefit of the person using it.
An owner owed to a licensee no duty as to the condition of the premises (unless imposed by statute) save that he should not knowingly let him run upon a hidden peril or willfully cause him harm; while to one invited he is under the obligation to maintain the premises in a reasonably safe and secure condition.
An invitation may be express, such as when the owner of occupier of the land by words invites another to come upon it or make use of it or of something thereon. It may be implied when such owner of occupier by acts or conduct leads another to believe that the land or something thereon was intended to be used as he uses them and that such use is not acquiesced in by the owner or occupier, but is in accordance with the intention or design for which the way or place or thing was adapted and prepared and allowed to be used.
The total reverse of an Invitee is a Trespasser. While everyone knows that Trespassing is unlawful entry onto property of another without his or her consent, the historical event of trespass may be interesting.
The original reference to Trespass was the Latin “Trespass quare clausum fregit”, translated: “Trespass wherefore he broke the close.” This was the common-law action for damages for an unlawful entry or trespass upon the plaintiff’s land. In the Latin form of the writ, the defendant was called upon to show whey he broke the plaintiff’s close; i.e. the real or imaginary structure inclosing the land (whence the name). Even if the real estate upon which one trespassed was an unfenced meadowland, in the eyes of the law, there was an imaginary wall enclosing the property, over, which a person may not enter without permission.
While the owner of the property may not make any attempt to deliberately harm or entrap a trespasser, the owner owes no duty of care to the trespasser in maintenance or inspection of the property.
CONSUMER APPLICATION
Henderson is tired of the neighbors using his property as a shortcut to and from a shopping center every day. He posted the property but they continued. Henderson digs several holes in the path that the neighbors use, covering them with straw and filling them with water. One of the neighbors fell into a hole and broke his leg. Henderson felt that he was not liable as the person was trespassing.
Henderson is wrong and can be held liable as the holes were intentionally placed.
If Henderson had not placed any holes on his property, but a neighbor had fallen over some bushes growing on the property, the neighbor could not hold Henderson liable, as Henderson owes no responsibility for a trespasser.
Translated, Res Ipsa Loquitor, means “the thing speaks for itself.” This is a “rule” of law, which is usually not invoked unless necessary evidence is not readily available, or there is no evidence. As an example, an airliner that loses power on takeoff and crashes into a barrier at the end of the runway, injuring passengers. The passengers do not have to prove negligence, as this rule has the effect of justifying an inference of negligence. Some courts and jurisdictions have used this rule to establish a presumption of this nature.
Another way of stating this doctrine, is that there is a (rebuttal) presumption that the defendant was negligent, arising upon proof that the cause of the injury was in the defendant’s exclusive control, and further, that the accident was one which ordinarily does not happen in the absence of negligence.
Every state places a time limit on the time when suits for damages must be commenced, ranging from one year to six years. The types of lawsuits can cause this time limit to vary in some states, i.e. the time limit for personal injury may vary from a suit alleging property damage, wrongful death suits, and suits against municipalities. The time limit starts from the date of the injury, not from the time of the negligent act if the dates differ.
A general rule is that a spouse cannot sue a spouse in tort for acts committed by the spouse. Some states make exceptions of this rule for certain situations.
Guest laws pertain to persons who ride in automobiles, airplanes or boats, and severely restrict the ability of the “guest” to sue for injuries sustained while riding in the conveyance. Basically, the operator cannot be found guilty of injuries suffered by a guest unless the operator is found to have been guilty of “gross” or ‘willful and wanton” negligence.
A guest is usually defined as someone who has not paid for the transportation, but this definition has been very strictly interpreted. If it can be shown that there is any kind of an advantage for the operator to have the "guest” in his conveyance, courts have ruled the Guest Law statutes do not apply.
The recent trend has been toward abolishing Guest Laws as the result of court decision or repeal of the statutes. With the increasing attitude of blaming others for every injury, although slight or imagined, these trends can be expected.
A suit for personal injuries continues even after the injured person has died. Conversely, if the defendant dies, the person’s cause for action will continue against the deceased’s personal representatives, although some states apply some restrictions.
Personal representatives of a person killed by the wrongful act of another may institute and maintain an action against the person who committed the tort (tortfeasor). Some states have established limits recoverable – both maximum &/or minimum limits – and some states have no such limits.
Suits for wrongful death may be maintained independently of personal injury actions. Even in those states where there are restrictions or limitations on the right to sustain an action for personal injuries after one of the parties has died, the wrongful death actions still exist and can continue.
Every employer is required to protect the public from wrongful acts of their employees and courts will hold an employer liable for torts committed by his employees in the course of their employment. (Insurance policies covering this potential liability will be discussed specifically later in this text).
In order for there to be liability, the employer must have the power to hire and fire the employee, and to control the conditions of employment. Conversely, if the work is performed by one for a fixed amount with no restrictions or conditions surrounding the hours – or conditions – of employment, and if the employer does not directly control the work or employment practices of the person performing the service, usually it will be held that no employer-employee relationship exists.
Further, the employer is not liable for the torts of his employees except when the tort is committed within the scope of his employment. This can create considerable litigation, as the question is not easily determined in many situations. Also, in this situation, both the employer and employee may be held liable, depending upon circumstances.
Note that when an employee is injured in the course of employment, the liability of the employer is determined by the applicable Workers Compensation laws.
CONSUMER APPLICATION
Pete works for Acumen, Ltd., as a deliveryman. While making a delivery on a hot day, Pete parked the truck and went into a bar for a beer. Pete got into a fight in the bar, injuring the bartender. The employer would not be liable, as having a beer was not performed as part of his duties.
However, if Pete was making a delivery and got into a fight with a dockworker over the delivery, the employer may or may not be liable, depending upon the details of the case.
Vicarious Liability statutes provide that a person may be liable for damages caused by another’s negligence in operating a motor vehicle (boats and airplanes also in some states).
In some states, these laws apply to minors who apply for a driver’s license and wherein the parents are required to sign for the minor, and therefore, the parents are liable for the negligent torts of the minor. In some jurisdictions, liability is imposed on the parents for any intentional, willful or malicious damage to property done by the minor. Many of these states also provide that the parent can have the minor’s license cancelled, and thereby negating any personal liability for the action of the minor.
In the majority of the jurisdictions, anyone who sells or distributes alcoholic beverages may be held liable for any tort committed by an intoxicated person to whom he has sold intoxicants. This is usually under Common Law, but in many states, under the Dram Shop Act. This has been extended in some cases, to apply to hosts at parties who provide alcoholic drinks to their guests, particularly when the guest leaves and is too intoxicated to be driving.
Note: Liquor Liability Insurance is available and will be discussed later in this text.
CONSUMER APPLICATION
The Women’s Junior League of Greater Pompano Beach holds an annual fund-raising auction with all of the proceeds going to local charities. They have been serving hors d’oeuvres and non-alcoholic punch. It has been suggested that if they serve both alcoholic and non-alcoholic punch and several varieties of wine, it might attract more people and those that do attend, might become more “loosened up” and will bid higher on the items. The Chairman of the Junior League is concerned about lawsuits if an attendee should leave intoxicated and injure another party in an accident. She is afraid that the Junior League might be sued.
Even though technically liquor has not been “sold”, in some jurisdictions the mere furnishing of alcohol at a fund-raising event has been sufficient to hold the sponsoring party liable for the actions of those who leave their function in an intoxicated state. In some jurisdictions, this has been the case, even for non-profit organizations. The Chairman should have a local attorney research this question carefully, and if there is any chance of liability, to purchase liability coverage if they proceed with their plans to serve alcohol.
Continuing the discussion of the antithesis of “invitee”, that of Trespasser, the doctrine of Attractive Nuisance must be addressed. This actually expands the provision that a property owner cannot deliberately entrap or create harm to a trespasser. However, in particular with situations involving children, the Doctrine of Attractive Nuisances developed.
The doctrine is that one maintaining on his property a condition, instrumentality, machinery or other agency, which is dangerous to young children because of their inability to appreciate peril and may reasonably be expected to attract them to premises, owes duty to exercise reasonable care to protect them against dangers or such attraction. Interestingly, one of the earliest applications of this doctrine appeared in a suit of Shrock v. Ringling Brothers and Barnum and Bailey Combined Shows (5 Was.2d 599, 105 P2d 838, 843). One can immediately envision how this doctrine could apply with children and a circus.
Anyone with such condition as outlined above, is under a duty to take such precautions as a reasonably prudent man would take to prevent injury to children of tender years whom he knows to be residing in the vicinity, or who may, by reason of something there which may be expected to attract them, come there to play. It does not apply to natural conditions or common dangers existing in order of nature. It only applies in favor of children of tender years, too young to appreciate danger (usually under age 14). Some court decisions have required that the attraction be visible from a public place or a place where children have a right to be.
CONSUMER APPLICATION
Next to a street that leads to an Elementary school and which is traversed by many students every day, either on foot, in cars, by bicycle or on foot, a new fast-food business is being built. The contractor left open one side of the fence around the construction site that he could get his trucks in and out easier and frequently did not bother to enclose it securely at night. Before the store was open, a playground for children who would be customers of the store was erected. Only part of the slide section of the playground had been completed, leaving an area uncovered, when 4 children who lived nearby and had seen the construction while walking to and from school, walked through the open fence and played on the incomplete slide. One of the children fell through an unfinished and unenclosed area and broke a collarbone.
This situation meets all of the requirements for the Law of Attractive Nuisances. It is seen easily by children, it is not reasonable protected and is very attractive to children – it was designed to be attractive to children, it is an artificial structure, and it was the direct cause of injury to the child.
Historically, in the 1980’s Auto and Commercial Liability Insurance escalated tremendously, making them nearly unaffordable to the average citizen. Much of this was attributed to the huge increase in lawsuits, both in Federal and State courts. In addition, the size of awards sky-rocketed, for instance in the early 1960’s, there was only one civil suits which resulted in an award more than $1 million. By 1982, there were 251 such jumbo verdicts.
Several solutions to these huge increases were proposed in order to keep the insurance costs under control. Special tort liability laws were enacted in the majority of the states affecting automobile tort liability. There were also many steps taken to modify the tort system for all liability cases. Presently there are several proposed Tort Reform provisions at the federal level, pushed by the Republican Congress, but which the Democratic President has vetoed. The Trial Lawyers organizations have fiercely fought against tort reform for obvious reasons. Many attorneys and others oppose such tort reform as they feel that such legislation violates the concept of equal protection under the law.
Some of the better known tort reform actions are as follows:
Eliminating the Joint and Several Liability provisions. Under previous law, a plaintiff could recover from any one defendant, regardless of the liability of each defendant. Over 20 states are reported to have modified or eliminated this practice.
Punitive Damages. In an area that was crying for limitations, many states now restrict punitive damage awards (where the defendant is found to be guilty of deliberate aggression, malice, fraud or wrongdoing). The Punitive Damage awards have been abused (in the opinion of most) in several jurisdictions (and in particular, Alabama, which has no limits and multi-million dollar awards are frequent) which have led to these caps, frequently a cap of $250,000 when a business enterprise is held liable for wrongful acts of an employee.
Frivolous Suits. Because there have been many cases whereby the attorney has talked the plaintiff into initiating lawsuits without any merit, on the chance that a sympathetic jury could award damages (shared by the attorney, of course) regardless of the law or of the facts – many states now have laws that provide for the fining of attorneys who bring frivolous actions.
Non-economic Damages. Non-economic damages refer to losses such as pain and suffering &/or emotional distress. In some jurisdictions as part of a wrongful death statute, the non-economic damages are capped.
Medical Malpractice Caps. Several states have ceilings on non-economic losses in medical malpractice. There are other reform statutes regarding medical malpractice.
Medical Expense Rule. In some jurisdictions, defense attorneys were prohibited from revealing collateral sources of payments for their client’s medical expenses.
Contingency Fees. Many states have limited, and some states prohibit, attorney contingency fees in liability cases.
Medical Workers. Most states have laws that exempt volunteer medical workers such as doctors, nurses and other health providers, who work at hospitals, public schools or non-profit organizations.
Structured Settlements. These statutes have become so prevalent that large agencies specializing in Structured Settlements have sprung up. They permit settlement of monetary awards above a pre-determined amount (such as $100,000) to be spread out over several years or over the lifetime of the recipient. Frequently, annuities are used for this purpose, particularly when an award is specifically provided to be so distributed.
Officers and Directors of Non-profit Organizations. Those who serve as Officers and Directors of non-profit organizations in many states are immune from liability.
1. An action taken with the deliberate intent to harm another is
A. an example of strict liability.
B. a willful tort.
C. negligence.
D. contributory negligence.
2. Liability Insurance concerns itself with __________ Torts.
A. negligent
B. willful
C. accidental
D. absolute liability
3. If wanton and willful misconduct is shown, the type of negligence would probably be
A. contributory.
B. gross.
C. comparative.
D. ordinary.
4. Where each party is somewhat negligent, each party must bear its own share of the injury.
This describes
A. comparative negligence.
B. gross negligence.
C. contributory negligence.
D. slight negligence.
5. Used primarily as a defense against contributory negligence, if John decides to teach another driver “a lesson” by deliberately crashing into him when he ran through a red light, even though John had not started his car when the light changed and could have avoided the crash. This is the
A. the doctrine of Last Clear Chance.
B. Aggressive Liability.
C. law of Attractive Nuisances.
D. Road Rage doctrine.
6. Sue goes to the movie will Bill. A car driven by Oscar hits Bill’s car, injuring Sue. Sue sues Bill as she thinks Bill has more money than Oscar does. Typically
A. Sue cannot win the suit because of guest laws.
B. Bill will have to pay as he assumed liability for her health when he dated her.
C. the laws of Comparative Negligence will now allow Sue to recover damages.
D. Sue will win because of subrogation.
7. In some states, as parent can be sued for damages caused by their children. This is
A. vicarious liability.
B. contributory negligence.
C. Res Ipsa Loquitor.
D. implicit liability.
8. The intentional failure to perform as manifest duty in reckless disregard of the consequences is
A. contributory negligence.
B. gross negligence.
C. comparative negligence.
D. Res Ipsa Loquitor.
9. One maintaining on his property a condition which is dangerous to young people because of their inability to appreciate peril, and when such condition could cause a young person to enter the property, owes duty to exercise reasonable care to protect them against such condition. This is known as the
A. Law of Attractive Nuisances.
B. Res Ipsa Loquitor.
C. Law of Last Clear Chance.
D. Law of Child Endangerment.
10. Among he many Tort Reforms being considered, are statutes that permit settlement of monetary awards above a pre-determined amount, to be spread out over a several years or over the lifetime of the recipient. This area is known as
A. Medical Malpractice.
B. Frivolous Suits.
C. Punitive Damages.
D. Structured Settlements.
ANSWERS TO STUDY QUESTIONS
1B 2A 3B 4C 5A 6A 7A 8B 9A 10D