The latest water-cooler argument against Alex Rodriguez...
Did you read that story on espn.com? When A-Rod was a sophomore in high school, his bench press went from one hundred pounds to over three hundred pounds in only six months! He was definitely on roids.
The Boom is calling BS, because there is a flaw in the above logic. I don't know the proper name of this fallacy, but here is the formula: X causes Y. Therefore if Y is present, we know X occurred. Or, steroids cause rapid strength gains. Therefore if someone gets strong quickly, we know they took roids.
The problem with this line of reasoning is that it completely ignores the possibility that W, Z, or any number of other events may also cause Y. To refute your buddy at the water-cooler, all you have to do is come up with an alternative cause that is plausible.
For instance, I started lifting weights when I was a junior in high school. In the first 6 months, my bench press more than tripled (65# to 200#). My friends started lifting at the same time, and they made similar gains.
Just last year, at the best gym in the world, my deadlift went from 135# to 335# in 12-weeks. When a novice lifter begins regular weight training, they get strong really damn fast!
I'm not saying A-Rod did or didn't take steroids. I just wanted to point out that this particular argument against him is weak. I also wanted to brag about my deadlift before Sean pulls a 400.
...
What does this have to do with torts?
Nothing. Let's shift gears.
Take a Plaintiff As You Find Them
Bartalone v. Jeckovich (New York, 1984)
Facts
The plaintiff had a latent psychological condition. His mother and sister had died due to Cancer. He worked out four hours each day as a coping mechanism (so as to avoid ever getting sick).
The plaintiff suffered minor and acute injuries during an auto accident. Temporarily unable to workout, he had a severe psychological breakdown. On his behalf, someone sued the driver who caused the auto accident.
Question
Is the defendant responsible for the patient's schizophrenia?
Holding
Yes
Reasoning
Damages are subjective. It is irrelevant whether the damages are foreseeable. Clearly, the defendant did not cause the plaintiff's original psychological condition. However, the defendant must take the plaintiff as he found him. The car wreck became the catalyst for great personal injury.
Showing posts with label Torts. Show all posts
Showing posts with label Torts. Show all posts
Saturday, May 2, 2009
Friday, April 3, 2009
Slip and Fall Cases
I mean literally slip and fall, then try to sue someone because you hurt yourself. These cases tend to favor the defendant, because people have a duty to watch where they are going. Of course, the defendant will also have a duty to keep things reasonably safe. Let’s see how these duties are balanced.
In slip and fall cases, the plaintiff has a burden of production towards one of the following four scenarios:
1. Smooth/Slippery Surface (usually from cleaning)
The defendant must have applied the product in the customary manner (safety cones, not using a ridiculous amount of the cleaning product, etc.)
2. Tracked-In Water
In Ohio, the defendant has very little duty near the door. You need to be aware that water is often tracked in. At some point (depending on the case) you cross the threshold into an area where the defendant has a duty.
3. Defect in the Surface
There are specific rules in each jurisdiction (e.g. a hole must be X square inches)
4. Foreign Substance
The plaintiff must prove one of the following three:
a. the defendant placed the substance there
b. the defendant knew the substance was there, and had an opportunity to clean it up
c. the substance was there long enough that the defendant should have noticed it
Lipman v. Super-X Drug Corp. (1989, Ohio)
Facts
Lipman was shopping at Super X. She slipped on a substance, fell, and hurt herself. She testified that it was “wax…or something like that”.
Question
Was Super X negligent?
Holding
No
Reasoning
There is no evidence of the store owner’s negligence. The plaintiff failed to establish the substance, a negligent act, or an omission.
Goddard v. Boston and Maine RR Co. (1901, Mass)
Facts
Goddard was a passenger on the railroad. While exiting the car, he stepped onto a banana peel on the platform. Goddard slipped, fell, and was injured. Testimony showed that the banana peel was still yellow at the time of the accident.
Question
Was this negligence?
Holding
No
Reasoning
Goddard failed to establish a duty. He was unable to prove that the banana peel was there long enough that it should have been cleaned up.
Anjou v. Boston Elevated Railway Co. (1911, Mass)
Facts
The plaintiff asked an employee of the train station for directions to a train. While following the agent, she stepped on a banana peel. You know what happened next.
Testimony showed that the peel was “black, dry, and gritty”. It was also described as “trampled and flattened down”.
Question
Did Anjou meet her burden of production/establish duty?
Holding
Yes
Reasoning
The banana was there long enough that it should have been cleaned up.
And the winner is…
Anjou
Also, physical comedy.
summarized from Life of a Law Student
In slip and fall cases, the plaintiff has a burden of production towards one of the following four scenarios:
1. Smooth/Slippery Surface (usually from cleaning)
The defendant must have applied the product in the customary manner (safety cones, not using a ridiculous amount of the cleaning product, etc.)
2. Tracked-In Water
In Ohio, the defendant has very little duty near the door. You need to be aware that water is often tracked in. At some point (depending on the case) you cross the threshold into an area where the defendant has a duty.
3. Defect in the Surface
There are specific rules in each jurisdiction (e.g. a hole must be X square inches)
4. Foreign Substance
The plaintiff must prove one of the following three:
a. the defendant placed the substance there
b. the defendant knew the substance was there, and had an opportunity to clean it up
c. the substance was there long enough that the defendant should have noticed it
Lipman v. Super-X Drug Corp. (1989, Ohio)
Facts
Lipman was shopping at Super X. She slipped on a substance, fell, and hurt herself. She testified that it was “wax…or something like that”.
Question
Was Super X negligent?
Holding
No
Reasoning
There is no evidence of the store owner’s negligence. The plaintiff failed to establish the substance, a negligent act, or an omission.
Goddard v. Boston and Maine RR Co. (1901, Mass)
Facts
Goddard was a passenger on the railroad. While exiting the car, he stepped onto a banana peel on the platform. Goddard slipped, fell, and was injured. Testimony showed that the banana peel was still yellow at the time of the accident.
Question
Was this negligence?
Holding
No
Reasoning
Goddard failed to establish a duty. He was unable to prove that the banana peel was there long enough that it should have been cleaned up.
Anjou v. Boston Elevated Railway Co. (1911, Mass)
Facts
The plaintiff asked an employee of the train station for directions to a train. While following the agent, she stepped on a banana peel. You know what happened next.
Testimony showed that the peel was “black, dry, and gritty”. It was also described as “trampled and flattened down”.
Question
Did Anjou meet her burden of production/establish duty?
Holding
Yes
Reasoning
The banana was there long enough that it should have been cleaned up.
And the winner is…
Anjou
Also, physical comedy.
summarized from Life of a Law Student
Customary Duty...
...Is when you go at the same time every morning.
Jokes.
You can establish a skilled worker's duty by establishing that a certain action is customary within a field. This is called a customary duty. This is very similar to establishing a skilled professional's duty by establishing standard practice within a field.
Trimarco v. Klein (1982, New York)
Facts
Trimarco was an apartment tenant, and Klein was his landlord. The property was over fifty years old, and the bathroom used standard glass. Trimarco injured himself after breaking the glass. Trimarco then sued Klein for negligence, alleging that he should have installed shatterproof glass.
Question
Was there a duty to install shatterproof glass?
Holding
Yes
Reasoning
The plaintiff presented professionals, including the defendants manager, to testify that installing shatterproof glass was "customary" since the 1950s.
And the winner is…
Trimarco, but only in the sense that he satisfied the burden of production. The case was actually sent back to the trial level due to a technicality unrelated to customary duty.
Customary Duties and the Reasonable Person
It’s generally a solid shortcut, but it doesn't always work. Establishing a customary duty is powerful testimony for what a reasonable person would do. However, you can still be negligent even if you followed customary duty. And on the flipside, ignoring customary duty can still be not negligence. Or, as I like to say, posligence.
summarized from Life of a Law Student
Jokes.
You can establish a skilled worker's duty by establishing that a certain action is customary within a field. This is called a customary duty. This is very similar to establishing a skilled professional's duty by establishing standard practice within a field.
Trimarco v. Klein (1982, New York)
Facts
Trimarco was an apartment tenant, and Klein was his landlord. The property was over fifty years old, and the bathroom used standard glass. Trimarco injured himself after breaking the glass. Trimarco then sued Klein for negligence, alleging that he should have installed shatterproof glass.
Question
Was there a duty to install shatterproof glass?
Holding
Yes
Reasoning
The plaintiff presented professionals, including the defendants manager, to testify that installing shatterproof glass was "customary" since the 1950s.
And the winner is…
Trimarco, but only in the sense that he satisfied the burden of production. The case was actually sent back to the trial level due to a technicality unrelated to customary duty.
Customary Duties and the Reasonable Person
It’s generally a solid shortcut, but it doesn't always work. Establishing a customary duty is powerful testimony for what a reasonable person would do. However, you can still be negligent even if you followed customary duty. And on the flipside, ignoring customary duty can still be not negligence. Or, as I like to say, posligence.
summarized from Life of a Law Student
Wednesday, March 25, 2009
Bears Love Cookies
In a previous post, I correctly reported that Ohio uses negligence per se. However, I was a little unclear about how this concept works. Let me try again.
Negligence per se is when someone is found negligent in civil court based on their violation of a statute.
Negligence per se must hold up to two conditions.
The plaintiff must suffer the type of injury that the statute was meant to protect against.
Pretend it is illegal to bake cookies, because cookies attract bears. You bake some cookies, and I get salmonella from eating them. You have not completed negligence per se. The law was designed to protect against bear attacks, not food poisoning.
Remember, you can still be charged with criminal action in this little scenario. Also, I can still sue you for regular negligence. But negligence per se is not in play.
The plaintiff must be within the class of citizen that the statute was meant to protect.
Let’s put a little twist on the above hypothetical. Pretend the same anti-baking law exists, but it is specifically meant to protect children. You bake cookies, and a bear comes and mauls the hell out of me. Again, this is not negligence per se. The law was meant to protect children, not adults.
summarized from Life of a Law Student
Negligence per se is when someone is found negligent in civil court based on their violation of a statute.
Negligence per se must hold up to two conditions.
The plaintiff must suffer the type of injury that the statute was meant to protect against.
Pretend it is illegal to bake cookies, because cookies attract bears. You bake some cookies, and I get salmonella from eating them. You have not completed negligence per se. The law was designed to protect against bear attacks, not food poisoning.
Remember, you can still be charged with criminal action in this little scenario. Also, I can still sue you for regular negligence. But negligence per se is not in play.
The plaintiff must be within the class of citizen that the statute was meant to protect.
Let’s put a little twist on the above hypothetical. Pretend the same anti-baking law exists, but it is specifically meant to protect children. You bake cookies, and a bear comes and mauls the hell out of me. Again, this is not negligence per se. The law was meant to protect children, not adults.
summarized from Life of a Law Student
Sunday, March 15, 2009
Statutes and Tort Law
In tort law, the burden of proof is solely on the plaintiff. They are required to establish all four elements (duty, breach, causation, and damages) of the tort. This burden falls into two categories:
Burden of Production
This occurs before the case is ever brought before a jury. The plaintiff must make a compelling production of evidence regarding the four elements. If the plaintiff is unconvincing, a judge may throw the case out. The burden of production is a matter of law, not fact.
Burden of Persuasion
A matter of fact. The plaintiff must convince the jury of the facts as they are set out.
How do statutes apply to tort law?
We often use The Reasonable Person/Professional to determine standards of care. Statutes can be used as well. For example, it is illegal to set someone's house on fire. Therefore a reasonable person would not set their neighbor's house on fire. The use of statutes in civil proceedings differ with each jurisdiction. Ohio sometimes uses negligence per se, which means that criminal statutes can satisfy duty and breach within the burden of production.
Osborne v. McMasters (1889, Minnesota)
Facts
A woman drank unlabeled poison and died. Her loved ones sued because a clerk failed to label the bottle. A statute making it illegal to sell poison without a label was presented as the defendants duty.
Question
Can the plaintiff argue from a statute in order to establish a standard of care?
Holding
Yes
Reasoning
“It is immaterial whether the duty is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others. In either case the failure to perform the duty constitutes negligence.”
And the winner is…
The plaintiff
summarized from Life of a Law Student
Burden of Production
This occurs before the case is ever brought before a jury. The plaintiff must make a compelling production of evidence regarding the four elements. If the plaintiff is unconvincing, a judge may throw the case out. The burden of production is a matter of law, not fact.
Burden of Persuasion
A matter of fact. The plaintiff must convince the jury of the facts as they are set out.
How do statutes apply to tort law?
We often use The Reasonable Person/Professional to determine standards of care. Statutes can be used as well. For example, it is illegal to set someone's house on fire. Therefore a reasonable person would not set their neighbor's house on fire. The use of statutes in civil proceedings differ with each jurisdiction. Ohio sometimes uses negligence per se, which means that criminal statutes can satisfy duty and breach within the burden of production.
Osborne v. McMasters (1889, Minnesota)
Facts
A woman drank unlabeled poison and died. Her loved ones sued because a clerk failed to label the bottle. A statute making it illegal to sell poison without a label was presented as the defendants duty.
Question
Can the plaintiff argue from a statute in order to establish a standard of care?
Holding
Yes
Reasoning
“It is immaterial whether the duty is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others. In either case the failure to perform the duty constitutes negligence.”
And the winner is…
The plaintiff
summarized from Life of a Law Student
Wednesday, March 11, 2009
What the heck is a fiduciary?
Fiduciaries are people who are in a position of trust, and thus have a legal duty to be honest. Examples of fiduciaries are bankers, lawyers, and doctors. Let’s examine a case involving a breach of fiduciary duty…
Moore v. Regents of University of California (1990)
Facts
Mr. Moore was being treated for leukemia by Dr. Golde. After being pronounced healthy, Moore moved from California to Alaska. Soon after the move, Golde realized that Moore was an extremely rare patient; his cells were perfect for research. Golde convinced Moore to periodically return to UCLA (expenses paid) for treatment. Treatment consisted of continuing to give samples for Golde’s multi-million dollar research and product development. Moore was never informed of the research or his unique cells.
Moore sued for lack of informed consent and conversion. Conversion occurs when someone wrongfully exercises control over someone else’s property.
Questions
1. Is there lack of informed consent?
2. Is there a conversion issue?
Holding
1. Yes
2. No
Reasoning
1. As we already know, Dr. Golde had a duty to make Moore aware of the risks involved in any prospective procedure. But this case has nothing to do with Moore’s actual leukemia treatment. That’s why SCOTUS created a new doctrine: “A patient must also be made aware of any personal or economic research interests that the doctor might have.” As soon as Golde was aware of research possibilities he had a duty to inform Moore.
2. The court didn’t want to threaten legitimate researchers or get involved in the buying or selling of bodyparts. The conversion claim was thrown out, but it was noted that sooner or later SCOTUS would have to make a ruling on this issue.
And the winner is…
Moore settled out of court for 200k.
summarized from Life of a Law Student
Moore v. Regents of University of California (1990)
Facts
Mr. Moore was being treated for leukemia by Dr. Golde. After being pronounced healthy, Moore moved from California to Alaska. Soon after the move, Golde realized that Moore was an extremely rare patient; his cells were perfect for research. Golde convinced Moore to periodically return to UCLA (expenses paid) for treatment. Treatment consisted of continuing to give samples for Golde’s multi-million dollar research and product development. Moore was never informed of the research or his unique cells.
Moore sued for lack of informed consent and conversion. Conversion occurs when someone wrongfully exercises control over someone else’s property.
Questions
1. Is there lack of informed consent?
2. Is there a conversion issue?
Holding
1. Yes
2. No
Reasoning
1. As we already know, Dr. Golde had a duty to make Moore aware of the risks involved in any prospective procedure. But this case has nothing to do with Moore’s actual leukemia treatment. That’s why SCOTUS created a new doctrine: “A patient must also be made aware of any personal or economic research interests that the doctor might have.” As soon as Golde was aware of research possibilities he had a duty to inform Moore.
2. The court didn’t want to threaten legitimate researchers or get involved in the buying or selling of bodyparts. The conversion claim was thrown out, but it was noted that sooner or later SCOTUS would have to make a ruling on this issue.
And the winner is…
Moore settled out of court for 200k.
summarized from Life of a Law Student
Thursday, March 5, 2009
Dr. House is SO unprofessional
Do we use a local or national standard of care for medical malpractice?
Morrison v. MacNamara (1979)
Facts
Mr. Morrison was in need of a urethral smear. The smear can be administered while the pt is standing, sitting, or lying down. Morrison told MacNamara, the lab technician, that he was feeling faint. MacNamara then administered the smear with Morrison standing. Morrison fainted, hit his head, and suffered significant neurological damage.
The jury in this malpractice/negligence case was instructed to use a local standard of care. Morrison argued unsuccessfully for a national standard of care. Morrison lost, and the case was appealed.
Question
Should the jury have been instructed on a national standard of care?
Holding
Yes
Reasoning
In the past, a local standard of care was used to avoid unfairly burdening rural doctors. The thinking was that rural doctors did not always have access to cutting-edge technology, staff, and education. Progress in communication, transportation, and technology makes this rule outdated. Furthermore, continuing the local standard of care gives rural doctors no incentive to improve the quality of their treatment.
And the winner is…
There were no winners. Morrison recovered damages, but he also had his urethra smeared.
Notes
Ironically, this was a metropolitan facility that marketed itself as one of the best in the nation.
What is the deal with informed consent?
Scott v. Bradford (1979)
Facts
Ms. Scott was urged by Dr. Bradford to have surgery. The doctor did not inform her of possible complications. Following the surgery there were significant complications, and three more surgeries were needed. Scott sued, alleging that she would not have elected surgery if she had been more informed.
Question
Does the medical standard of care require informed consent?
Holding
Yes
Reasoning
People have a constitutional right to privacy, which includes the right to determine what happens with their body. A doctor must disclose everything a “reasonable patient would want to know.” That’s why drug ads list so many side effects.
And the winner is...
Scott
More on doctors and informed consent
-Informed consent is implied if a patient is unconscious and the situation is an emergency.
-Doctors do not need informed consent if they can prove that it would be detrimental.
-No consent=battery, a criminal action.
-Incomplete consent=negligence, a tort.
-The patient can only sue for damages that arise out of uniformed risks. Even if the doctor doesn’t completely inform the patient, the doctor’s ass is still covered for all risks that were explained.
-Some states use an objective test: what would the reasonable person want to know?
-Some state use a subjective test: what would this person have wanted to know? It falls on the defense attorney to prove the plaintiff is lying.
summarized from Life of a Law Student
Morrison v. MacNamara (1979)
Facts
Mr. Morrison was in need of a urethral smear. The smear can be administered while the pt is standing, sitting, or lying down. Morrison told MacNamara, the lab technician, that he was feeling faint. MacNamara then administered the smear with Morrison standing. Morrison fainted, hit his head, and suffered significant neurological damage.
The jury in this malpractice/negligence case was instructed to use a local standard of care. Morrison argued unsuccessfully for a national standard of care. Morrison lost, and the case was appealed.
Question
Should the jury have been instructed on a national standard of care?
Holding
Yes
Reasoning
In the past, a local standard of care was used to avoid unfairly burdening rural doctors. The thinking was that rural doctors did not always have access to cutting-edge technology, staff, and education. Progress in communication, transportation, and technology makes this rule outdated. Furthermore, continuing the local standard of care gives rural doctors no incentive to improve the quality of their treatment.
And the winner is…
There were no winners. Morrison recovered damages, but he also had his urethra smeared.
Notes
Ironically, this was a metropolitan facility that marketed itself as one of the best in the nation.
What is the deal with informed consent?
Scott v. Bradford (1979)
Facts
Ms. Scott was urged by Dr. Bradford to have surgery. The doctor did not inform her of possible complications. Following the surgery there were significant complications, and three more surgeries were needed. Scott sued, alleging that she would not have elected surgery if she had been more informed.
Question
Does the medical standard of care require informed consent?
Holding
Yes
Reasoning
People have a constitutional right to privacy, which includes the right to determine what happens with their body. A doctor must disclose everything a “reasonable patient would want to know.” That’s why drug ads list so many side effects.
And the winner is...
Scott
More on doctors and informed consent
-Informed consent is implied if a patient is unconscious and the situation is an emergency.
-Doctors do not need informed consent if they can prove that it would be detrimental.
-No consent=battery, a criminal action.
-Incomplete consent=negligence, a tort.
-The patient can only sue for damages that arise out of uniformed risks. Even if the doctor doesn’t completely inform the patient, the doctor’s ass is still covered for all risks that were explained.
-Some states use an objective test: what would the reasonable person want to know?
-Some state use a subjective test: what would this person have wanted to know? It falls on the defense attorney to prove the plaintiff is lying.
summarized from Life of a Law Student
Monday, February 23, 2009
Bad News for Dr. House
Professionals within a field are held to a higher standard of care than the average citizen. They are expected to exercise the prudence of a reasonable individual with like training.
Boyce v. Brown (1938) Arizona
A woman fractured her ankle in 1927. Her doctor repaired her by inserting a pin. In 1934 she returned to her doctor complaining of pain in the ankle. He basically did nothing. In 1936 she came back again, and again her doctor did nothing. This time, she sought a second opinion. Her new doctor ordered an x-ray and discovered dead tissue around the pin. He removed the dead tissue and her pain was gone.
The woman brought a lawsuit against her original doctor. She contended that he was negligent because he should have taken an x-ray in 1934.
Question
Was the doctor negligent?
Holding
No
Reasoning
This case was thrown out by the judge because the plaintiff failed to establish duty. The plaintiff called her new doctor to the stand, and he testified that he would have taken an x-ray back in 1934. However, his wording made his testimony meaningless. The court is not concerned with what a specific doctor would do, but with what a like professional of reasonable prudence would do. The doctor should have testified that an x-ray in this situation would be “standard practice”. I'm placing blame for that mistake on the plaintiff's attorney.
And the winner is...
...verbiage?
Notes
-The attorney pretty much blew this case. Can the poor woman sue her attorney for malpractice? Nope. Lawyers have leeway to argue cases as they see fit. The only way they get nailed for malpractice is by doing something really egregious. For example, declining an offer for settlement without presenting it to their client.
-Many professionals work under contracts, which is a separate area of the law. Let’s pretend an engineer does a poor job repairing the 480 bridge, and it collapses. If the engineer failed to carry out one of the duties of his contract, he can be sued for breach of contract. If he made a boneheaded decision that led to the collapse, he can be sued for a malpractice tort. He can also be sued for both.
-A statute of limitations is the amount of time that a party can be sued. If the lawsuit is not filed in time, it will be barred. The statute of limitations is two years on torts, and one year on contracts.
-Focusing testimony on generalities - such as the fictional professional of ordinary prudence - is much more comfortable for expert witnesses. It’s tough to convince professionals within a field to testify against one another. Nobody wants to be That Guy. Doctors are especially noted for their unwillingness to poop on each other.
summarized from Life of a Law Student
Boyce v. Brown (1938) Arizona
A woman fractured her ankle in 1927. Her doctor repaired her by inserting a pin. In 1934 she returned to her doctor complaining of pain in the ankle. He basically did nothing. In 1936 she came back again, and again her doctor did nothing. This time, she sought a second opinion. Her new doctor ordered an x-ray and discovered dead tissue around the pin. He removed the dead tissue and her pain was gone.
The woman brought a lawsuit against her original doctor. She contended that he was negligent because he should have taken an x-ray in 1934.
Question
Was the doctor negligent?
Holding
No
Reasoning
This case was thrown out by the judge because the plaintiff failed to establish duty. The plaintiff called her new doctor to the stand, and he testified that he would have taken an x-ray back in 1934. However, his wording made his testimony meaningless. The court is not concerned with what a specific doctor would do, but with what a like professional of reasonable prudence would do. The doctor should have testified that an x-ray in this situation would be “standard practice”. I'm placing blame for that mistake on the plaintiff's attorney.
And the winner is...
...verbiage?
Notes
-The attorney pretty much blew this case. Can the poor woman sue her attorney for malpractice? Nope. Lawyers have leeway to argue cases as they see fit. The only way they get nailed for malpractice is by doing something really egregious. For example, declining an offer for settlement without presenting it to their client.
-Many professionals work under contracts, which is a separate area of the law. Let’s pretend an engineer does a poor job repairing the 480 bridge, and it collapses. If the engineer failed to carry out one of the duties of his contract, he can be sued for breach of contract. If he made a boneheaded decision that led to the collapse, he can be sued for a malpractice tort. He can also be sued for both.
-A statute of limitations is the amount of time that a party can be sued. If the lawsuit is not filed in time, it will be barred. The statute of limitations is two years on torts, and one year on contracts.
-Focusing testimony on generalities - such as the fictional professional of ordinary prudence - is much more comfortable for expert witnesses. It’s tough to convince professionals within a field to testify against one another. Nobody wants to be That Guy. Doctors are especially noted for their unwillingness to poop on each other.
summarized from Life of a Law Student
Wednesday, February 11, 2009
Young, Dumb, and Full of Torts
Gather round kids, it's story time.
Growing up in rural North Carolina was sweet. I spent a lot of my childhood playing in the woods, which were expansive. One day when I was around ten, a friend and I found a junkyard hidden among the Pines. We quickly located a crowbar and started smashing car windows. For what seemed like hours, I had the time of my life. It was all sweat, violence, broken glass, cussing, blood, and loud noises. What more could a young boy want? We worked our way up to the front of the junkyard, and finally the adjoining used car lot. Thank God we were tuckered out by then. By the time we started destroying the cars that had "for sale" signs on them, I could barely swing the crowbar. No longer able to wreak havoc with our usual panache, we retired.
The next day, my idiot friend went back during business hours and got his ass caught. He proceeded to rat me out. My parents agreed to pony up $900 (in 1991!) for the previous day's destruction. I got a tanned ass and a long lesson on respecting property.
What were my parents legal obligations in this scenario? As we will see today, they could have refused to pay on the grounds that I was too young to know any better. They would probably be sued and the whole thing would end up in court. I'm not sure who would have won, but my point is that my parents had a legal leg to stand on.
I'm proud to say that Mom and Dad never considered refusing to pay for the windows. They felt responsible for making restitution, and impressing upon me the consequences of my actions. But not all parents are compelled by the same moral obligations. And some children engage in tortious conduct that isn't nearly as clear cut as my example.
Are parents liable?
In general, no. But, based on the actions of their children, parents can be sued for statutory torts. Legally, parents do have a duty to control their children to some degree.
Why would you sue a kid? They don't have any money.
Someone with dough will be named in the suit. For example, parents and/or homeowners insurance could end up paying. If not strictly liable, they are at least financially responsible.
Ohio and the Rule of Sevens
1. Children under 7 cannot be found liable under any circumstance. Their parents can still be liable for statutory torts.
2. The state assumes that children between the ages of 7-14 have no capability for negligence. However, prosecution can prove otherwise.
3. The state assumes that residents between the ages of 14-21 are capable of negligence. Again, defense can disprove this.
Robinson v. Lindsay (1979)
Facts
A thirteen year-old boy was driving a snowmobile. He was pulling an eleven-year old on an innertube. The younger child injured her thumb. Her parents filed suit against the thirteen year-old.
Question
Should a child operating a snowmobile be held to an adult standard of care?
Holding
Yes
Reasoning
Usually a child will be held to a child’s standard of care. However, children engaging in adult activites will be held to an adult standard of care. The court will decide what activities are "adult" in nature. Driving a snowmobile is an adult activity.
And the winner is...
The girl and her parents.
Notes
-The boy's father was sued as well. The plaintiff argued that giving a child the keys to a snowmobile was negligent entrustment. No details on how that played out, just thought it was a good example of parent liability.
-Bad news for all the underage drinkers. Obviously, they are committing a crime. But drinking alcohol-which is clearly an adult activity-also opens them up to civil charges.
summarized from Life of a Law Student
Growing up in rural North Carolina was sweet. I spent a lot of my childhood playing in the woods, which were expansive. One day when I was around ten, a friend and I found a junkyard hidden among the Pines. We quickly located a crowbar and started smashing car windows. For what seemed like hours, I had the time of my life. It was all sweat, violence, broken glass, cussing, blood, and loud noises. What more could a young boy want? We worked our way up to the front of the junkyard, and finally the adjoining used car lot. Thank God we were tuckered out by then. By the time we started destroying the cars that had "for sale" signs on them, I could barely swing the crowbar. No longer able to wreak havoc with our usual panache, we retired.
The next day, my idiot friend went back during business hours and got his ass caught. He proceeded to rat me out. My parents agreed to pony up $900 (in 1991!) for the previous day's destruction. I got a tanned ass and a long lesson on respecting property.
What were my parents legal obligations in this scenario? As we will see today, they could have refused to pay on the grounds that I was too young to know any better. They would probably be sued and the whole thing would end up in court. I'm not sure who would have won, but my point is that my parents had a legal leg to stand on.
I'm proud to say that Mom and Dad never considered refusing to pay for the windows. They felt responsible for making restitution, and impressing upon me the consequences of my actions. But not all parents are compelled by the same moral obligations. And some children engage in tortious conduct that isn't nearly as clear cut as my example.
Are parents liable?
In general, no. But, based on the actions of their children, parents can be sued for statutory torts. Legally, parents do have a duty to control their children to some degree.
Why would you sue a kid? They don't have any money.
Someone with dough will be named in the suit. For example, parents and/or homeowners insurance could end up paying. If not strictly liable, they are at least financially responsible.
Ohio and the Rule of Sevens
1. Children under 7 cannot be found liable under any circumstance. Their parents can still be liable for statutory torts.
2. The state assumes that children between the ages of 7-14 have no capability for negligence. However, prosecution can prove otherwise.
3. The state assumes that residents between the ages of 14-21 are capable of negligence. Again, defense can disprove this.
Robinson v. Lindsay (1979)
Facts
A thirteen year-old boy was driving a snowmobile. He was pulling an eleven-year old on an innertube. The younger child injured her thumb. Her parents filed suit against the thirteen year-old.
Question
Should a child operating a snowmobile be held to an adult standard of care?
Holding
Yes
Reasoning
Usually a child will be held to a child’s standard of care. However, children engaging in adult activites will be held to an adult standard of care. The court will decide what activities are "adult" in nature. Driving a snowmobile is an adult activity.
And the winner is...
The girl and her parents.
Notes
-The boy's father was sued as well. The plaintiff argued that giving a child the keys to a snowmobile was negligent entrustment. No details on how that played out, just thought it was a good example of parent liability.
-Bad news for all the underage drinkers. Obviously, they are committing a crime. But drinking alcohol-which is clearly an adult activity-also opens them up to civil charges.
summarized from Life of a Law Student
Sunday, February 8, 2009
A Recent Ohio Case
Roman v. Estate of Gobbo (2003)
Facts
While driving, Mr. Gobbo suffered a heart attack and died. His car then struck several people, resulting in both injuries and death. Ohio law held that sudden medical emergency was an absolute defense against liability. However, the Ohio Supreme Court retains the power of discretionary review. This case gave the court an opportunity to reassess the law.
The plaintiff put forth multiple arguments:
-This law is unfair to individuals with mental illness. They do not enjoy the same protections as people with physical illness.
-If the injuries were caused by sudden mechanical emergency, there would be no absolute defense against liability. Medical emergency should be treated no differently.
-When damages are severe, the injured deserve to be made whole. When no one is at fault, the party who caused the injury should be liable.
Questions
1. Should the court strike the medical emergency defense in order to balance the rights of individuals with physical and mental illness?
2. Should the court strike the medical emergency defense on the grounds that there is no similar defense for mechanical emergency?
3. If Gobbo was not at fault, should he still be held liable since he caused serious injury?
Holding
1. No
2. No
3. No
Reasoning
1. If anything, the court will expand the rights of people with mental illness before it strikes the sudden medical emergency defense.
2. Mechanical emergency is more likely to be foreseeable.
3. This issue must be applied on a case by case basis. In this case, the circumstances surrounding Gobbo's defense outweigh the court's responsibility to make restitution.
Notes
Every state has a similar law.
Summarized from Life of a Law Student
Facts
While driving, Mr. Gobbo suffered a heart attack and died. His car then struck several people, resulting in both injuries and death. Ohio law held that sudden medical emergency was an absolute defense against liability. However, the Ohio Supreme Court retains the power of discretionary review. This case gave the court an opportunity to reassess the law.
The plaintiff put forth multiple arguments:
-This law is unfair to individuals with mental illness. They do not enjoy the same protections as people with physical illness.
-If the injuries were caused by sudden mechanical emergency, there would be no absolute defense against liability. Medical emergency should be treated no differently.
-When damages are severe, the injured deserve to be made whole. When no one is at fault, the party who caused the injury should be liable.
Questions
1. Should the court strike the medical emergency defense in order to balance the rights of individuals with physical and mental illness?
2. Should the court strike the medical emergency defense on the grounds that there is no similar defense for mechanical emergency?
3. If Gobbo was not at fault, should he still be held liable since he caused serious injury?
Holding
1. No
2. No
3. No
Reasoning
1. If anything, the court will expand the rights of people with mental illness before it strikes the sudden medical emergency defense.
2. Mechanical emergency is more likely to be foreseeable.
3. This issue must be applied on a case by case basis. In this case, the circumstances surrounding Gobbo's defense outweigh the court's responsibility to make restitution.
Notes
Every state has a similar law.
Summarized from Life of a Law Student
Monday, January 26, 2009
I'm Batman
I was confused after the Vaughan v. Menlove post. People with disabilities wouldn't be held to the standard of ordinary prudence, would they?
Of course not. Today we'll look at two cases involving physical and mental disability in tort law.
Roberts v. State of Louisiana 396 So.2d 566 (1981)
Facts
Mike Burson worked at a concession stand located within a Louisiana post office. Burson was totally blind. He had attended special mobility training and sometimes walked without a cane. While walking to the post office bathroom without his cane, Burson literally bumped into William Roberts. Roberts fell and injured his hip. Under respondeat superior, Roberts filed a lawsuit against the State of Louisiana.
Questions
1. Was Robert's injury the result of negligent behavior by Burson?
Holding
1. No
Reasoning
1. Prudence is contextual, and physical disabilities are taken into account. Instead of being judged against the fictional ordinary man of reasonable prudence, Burson must exercise the care of an ordinary man of reasonable prudence who cannot see. Experts testified that it is not uncommon for the blind to walk without a cane in familiar settings. Using a cane in a crowded place can be more dangerous than walking without it. Further, Burson was not walking too fast or in an otherwise reckless manner.
Breunig v. American Family Insurance Co. 173 N.W.2d 619 (1970)
Facts
Erma Veith believed that she had a special relationship with god, and was the chosen one to survive the end of the world. While Veith was driving home, God took control of the steering wheel and sent the car into oncoming traffic. Veith expected to escape the car by flying out, because Batman could do it. Her car hit a truck, jumped a ditch, and ended up in a field. Her insurance company was sued based on her negligence. Experts concluded that Veith had paranoid schizophrenia of the acute type, and she plead insanity.
Questions
1. Is insanity a valid defense in negligence cases?
2. Does the insanity defense free Veith from liability?
Holding
1. Yes
2. No
Reasoning
1. Insanity is a valid defense in negligence suits if two conditions are met. First, “the person has no reasonable forewarning that an existing condition could cause such an incident.” Second, “the condition acts suddenly and prevents the person from conforming conduct to the standard of the reasonable person.”
2. It was determined in court that Veith’s symptoms prior to the accident were intermittent. Prosecution argued that Veith should therefore have realized she was not a safe driver. The jury affirmed and the appeals court agreed as well.
Notes
I didn't dig too deeply into this case file, but I'm skeptical of the whole she should have realized she had mental illness conclusion.
Of course not. Today we'll look at two cases involving physical and mental disability in tort law.
Roberts v. State of Louisiana 396 So.2d 566 (1981)
Facts
Mike Burson worked at a concession stand located within a Louisiana post office. Burson was totally blind. He had attended special mobility training and sometimes walked without a cane. While walking to the post office bathroom without his cane, Burson literally bumped into William Roberts. Roberts fell and injured his hip. Under respondeat superior, Roberts filed a lawsuit against the State of Louisiana.
Questions
1. Was Robert's injury the result of negligent behavior by Burson?
Holding
1. No
Reasoning
1. Prudence is contextual, and physical disabilities are taken into account. Instead of being judged against the fictional ordinary man of reasonable prudence, Burson must exercise the care of an ordinary man of reasonable prudence who cannot see. Experts testified that it is not uncommon for the blind to walk without a cane in familiar settings. Using a cane in a crowded place can be more dangerous than walking without it. Further, Burson was not walking too fast or in an otherwise reckless manner.
Breunig v. American Family Insurance Co. 173 N.W.2d 619 (1970)
Facts
Erma Veith believed that she had a special relationship with god, and was the chosen one to survive the end of the world. While Veith was driving home, God took control of the steering wheel and sent the car into oncoming traffic. Veith expected to escape the car by flying out, because Batman could do it. Her car hit a truck, jumped a ditch, and ended up in a field. Her insurance company was sued based on her negligence. Experts concluded that Veith had paranoid schizophrenia of the acute type, and she plead insanity.
Questions
1. Is insanity a valid defense in negligence cases?
2. Does the insanity defense free Veith from liability?
Holding
1. Yes
2. No
Reasoning
1. Insanity is a valid defense in negligence suits if two conditions are met. First, “the person has no reasonable forewarning that an existing condition could cause such an incident.” Second, “the condition acts suddenly and prevents the person from conforming conduct to the standard of the reasonable person.”
2. It was determined in court that Veith’s symptoms prior to the accident were intermittent. Prosecution argued that Veith should therefore have realized she was not a safe driver. The jury affirmed and the appeals court agreed as well.
Notes
I didn't dig too deeply into this case file, but I'm skeptical of the whole she should have realized she had mental illness conclusion.
Friday, January 16, 2009
Whoops!
What the heck are you planning to do with all those dead bodies in the trunk of your car?
Well, I'm no attorney, but I'll do my best to educate you on the concept of wrongful death. The following is my summary of the info in the wiki, and also the podcast (Life of a Law Student).
When a wrongful death lawsuit is filed, the plaintiff is alleging that the victim died as a result of the defendant's actions. Negligence is a common issue in wrongful death cases, and therefore we must remember the reasonably prudent man standard. On a personal note, I have to admit I never get tired of saying "man standard". Miller Lite definitely should have gone with Man Standards instead of Man Laws.
Wrongful death is a purely civil action. It is not the same as murder, manslaughter, or any of the other criminal actions. However, there is often overlap. See O.J. Simpson for a great example. He was found innocent on murder charges, but in civil court he was found liable for wrongful death. Criminal courts require the defendant to be assumed innocent until proven guilty beyond a reasonable doubt. Civil courts require only a preponderance of evidence.
In terms of compensation, wrongful death is one of the most serious torts on the books. That's because there are so many injuries that can be attached. Wrongful death can result in loss of companionship, loss of provision, emotional pain, etc.
Eleason v. Western Casualty & Surety Co. (1948)
Facts
A man named Luer had epilepsy and obtained a driver's license in Wisconsin. People diagnosed with epilepsy were not legally allowed to drive in the state, but Luer had never been diagnosed. He admitted that he was aware he had "spells." Luer got a job as a truck driver, had a "spell", and killed a pedestrian. The executor of the victim's estate sued the employer's insurance company directly, which was completely acceptable under Wisconsin state law.
Question
1. Is Luer, and thus Western Casualty, liable for the man's death?
Holding
1. Yes
Reasoning
1. A person of reasonable prudence would have considered that his "spells" might make him an unsafe driver.
Well, I'm no attorney, but I'll do my best to educate you on the concept of wrongful death. The following is my summary of the info in the wiki, and also the podcast (Life of a Law Student).
When a wrongful death lawsuit is filed, the plaintiff is alleging that the victim died as a result of the defendant's actions. Negligence is a common issue in wrongful death cases, and therefore we must remember the reasonably prudent man standard. On a personal note, I have to admit I never get tired of saying "man standard". Miller Lite definitely should have gone with Man Standards instead of Man Laws.
Wrongful death is a purely civil action. It is not the same as murder, manslaughter, or any of the other criminal actions. However, there is often overlap. See O.J. Simpson for a great example. He was found innocent on murder charges, but in civil court he was found liable for wrongful death. Criminal courts require the defendant to be assumed innocent until proven guilty beyond a reasonable doubt. Civil courts require only a preponderance of evidence.
In terms of compensation, wrongful death is one of the most serious torts on the books. That's because there are so many injuries that can be attached. Wrongful death can result in loss of companionship, loss of provision, emotional pain, etc.
Eleason v. Western Casualty & Surety Co. (1948)
Facts
A man named Luer had epilepsy and obtained a driver's license in Wisconsin. People diagnosed with epilepsy were not legally allowed to drive in the state, but Luer had never been diagnosed. He admitted that he was aware he had "spells." Luer got a job as a truck driver, had a "spell", and killed a pedestrian. The executor of the victim's estate sued the employer's insurance company directly, which was completely acceptable under Wisconsin state law.
Question
1. Is Luer, and thus Western Casualty, liable for the man's death?
Holding
1. Yes
Reasoning
1. A person of reasonable prudence would have considered that his "spells" might make him an unsafe driver.
Sunday, January 11, 2009
Don't tort and drive
Let me give you some free legal advice. If you need to avoid a speeding ticket, employ the Killer Bees defense from Tommy Boy. As Cordas v. Peerless will show, this ridiculous little stunt actually has some legal precedent. Specifically, the normal standard of care does not apply in the event of an emergency.
I'm kidding. Please do not go Killer Bees on a police officer. If you really must avoid a ticket, try my Safari Defense. That's where you pretend you are on safari and the police are hungry lions. Shut off your engine, roll up the windows, lock the doors, and DON'T MAKE EYE CONTACT! Eventually, the cop will get bored and just wander away.
A few quick items before we look at Cordas v. Peerless Transportation Co.
Consortium
We've already established that when a person is injured, they can sue for damages under tort law. It turns out that their partners (spouse, relatives, business partners, etc) may also seek to recover damages under the idea of consortium. For example, let's pretend I'm a victim of libel and as a result lose my job. Among other things, I can sue for lost wages. My wife can sue in consortium because I've been an awful husband ever since I got laid off (verbally abusive, lazy, whatever). The more injuries we have, the more money we get.
Vicarious Liability
As opposed to direct liability, vicarious liability is "the responsibility of the superior for the acts of the subordinate."
Facts
A cab driver was held at gunpoint by a criminal, who was fleeing from a robbery. The robber commanded the cabbie to drive. The driver proceeded, and at the first opportunity jumped from the cab. After the robber jumped from the cab, it ran onto the sidewalk and struck a mother and her two children. They survived with some injuries. The family (including the husband) sued Peerless Transportation in consortium, on the grounds of vicarious liability.
Question
1. Is the driver (and thus the cab company) liable for injuries?
Holding
1. No
Reasoning
1. Under normal circumstances, the driver's actions would fail to meet the required standard of care. However, the ordinary standard of care does not apply when an individual is faced with an emergency that is not of their own doing. Under the circumstances, the driver's actions were congruent with those of the fictional "ordinary man of reasonable prudence."
I'm kidding. Please do not go Killer Bees on a police officer. If you really must avoid a ticket, try my Safari Defense. That's where you pretend you are on safari and the police are hungry lions. Shut off your engine, roll up the windows, lock the doors, and DON'T MAKE EYE CONTACT! Eventually, the cop will get bored and just wander away.
A few quick items before we look at Cordas v. Peerless Transportation Co.
Consortium
We've already established that when a person is injured, they can sue for damages under tort law. It turns out that their partners (spouse, relatives, business partners, etc) may also seek to recover damages under the idea of consortium. For example, let's pretend I'm a victim of libel and as a result lose my job. Among other things, I can sue for lost wages. My wife can sue in consortium because I've been an awful husband ever since I got laid off (verbally abusive, lazy, whatever). The more injuries we have, the more money we get.
Vicarious Liability
As opposed to direct liability, vicarious liability is "the responsibility of the superior for the acts of the subordinate."
There are at least two advantages to suing a company instead of it's employee. First, a low-level employee doing their job is a sympathetic figure. An evil corporation is not. Second, the company should have more money than it's employee.
Cordas v. Peerless Transportation Co., 27 N.Y.S.2d 198 (1941)Facts
A cab driver was held at gunpoint by a criminal, who was fleeing from a robbery. The robber commanded the cabbie to drive. The driver proceeded, and at the first opportunity jumped from the cab. After the robber jumped from the cab, it ran onto the sidewalk and struck a mother and her two children. They survived with some injuries. The family (including the husband) sued Peerless Transportation in consortium, on the grounds of vicarious liability.
Question
1. Is the driver (and thus the cab company) liable for injuries?
Holding
1. No
Reasoning
1. Under normal circumstances, the driver's actions would fail to meet the required standard of care. However, the ordinary standard of care does not apply when an individual is faced with an emergency that is not of their own doing. Under the circumstances, the driver's actions were congruent with those of the fictional "ordinary man of reasonable prudence."
Sunday, January 4, 2009
Vaughan v. Menlove, bad news for morons
Last week I described negligence torts by saying, "Of course you didn't mean to, but you should have known better." That explanation opens the door for morons to say, "Dude. No way. I didn't know better. Seriously. You should get high with me some time. I don't know better. I don't know shit. You'll see."
Today I want you to do a fist pump for Vaughan v. Menlove. This case shot down the moron defense with the concept of reasonable prudence.
Vaughan v. Menlove, 132 Eng. Rep. 490 (1837)
Facts
The defendant made a pile of hay on his property, which he rented from the plaintiff. Over a period of 5 weeks the defendant was warned multiple times that the hay could catch fire. The defendant responded that he would "chance it." The hay caught fire and burned down multiple buildings on the property. Plaintiff sued for damages. The judge instructed the jury to examine the actions of the defendant, and decide whether his behavior was that of a "reasonably prudent man." The defendant was found liable, and appealed on the grounds that he acted to the best of his own judgment.
Questions
1. Should a general standard of reasonable prudence determine whether a defendant is negligent?
2. Was the decision correct?
Holding
1. Yes
2. Yes
Reasoning
1. Every individual does not afford their own standard of reasonable behavior. Since prudence is the issue in negligence cases, juries should determine what behavior is prudent.
2. Prior law holds that individuals must enjoy their property in a way that does not injure others. The individual should be held liable for injuries, unless they resulted from unexpected events. The defendant in this case was repeatedly warned about the danger of the hay. The judge's instructions had legal precedent and correctly identified the issues before the jury.
Today I want you to do a fist pump for Vaughan v. Menlove. This case shot down the moron defense with the concept of reasonable prudence.
Vaughan v. Menlove, 132 Eng. Rep. 490 (1837)
Facts
The defendant made a pile of hay on his property, which he rented from the plaintiff. Over a period of 5 weeks the defendant was warned multiple times that the hay could catch fire. The defendant responded that he would "chance it." The hay caught fire and burned down multiple buildings on the property. Plaintiff sued for damages. The judge instructed the jury to examine the actions of the defendant, and decide whether his behavior was that of a "reasonably prudent man." The defendant was found liable, and appealed on the grounds that he acted to the best of his own judgment.
Questions
1. Should a general standard of reasonable prudence determine whether a defendant is negligent?
2. Was the decision correct?
Holding
1. Yes
2. Yes
Reasoning
1. Every individual does not afford their own standard of reasonable behavior. Since prudence is the issue in negligence cases, juries should determine what behavior is prudent.
2. Prior law holds that individuals must enjoy their property in a way that does not injure others. The individual should be held liable for injuries, unless they resulted from unexpected events. The defendant in this case was repeatedly warned about the danger of the hay. The judge's instructions had legal precedent and correctly identified the issues before the jury.
Thursday, January 1, 2009
Brown v. Kendall
Brown v. Kendall, 60 Mass. 292 (1850)
Facts
George Brown and George Kendall both had dogs. The dogs got into a fight. Kendall tried to separate the dogs with a stick and hit Brown in the eye. Both men agreed the blow was unintentional.
Questions
1. Can a defendant, who is acting lawfully, be found liable for damages inflicted unintentionally?
2. Is Mr. Kendall liable for Mr. Brown's injury?
Holding
1. Yes
2. No
Reasoning
1. Tort law requires citizens to exercise a certain standard of care in their actions, even if their actions are lawful. When damages are unintentional, the burden of proof falls on the plaintiff to show that the defendant was acting carelessly. If the defendant was sufficiently careless, they are negligent.
2. Kendall acted within a reasonable standard of care. Although he had no duty to separate the dogs, it was the prudent thing to do. In his attempt to separate the dogs, he was not careless.
Facts
George Brown and George Kendall both had dogs. The dogs got into a fight. Kendall tried to separate the dogs with a stick and hit Brown in the eye. Both men agreed the blow was unintentional.
Questions
1. Can a defendant, who is acting lawfully, be found liable for damages inflicted unintentionally?
2. Is Mr. Kendall liable for Mr. Brown's injury?
Holding
1. Yes
2. No
Reasoning
1. Tort law requires citizens to exercise a certain standard of care in their actions, even if their actions are lawful. When damages are unintentional, the burden of proof falls on the plaintiff to show that the defendant was acting carelessly. If the defendant was sufficiently careless, they are negligent.
2. Kendall acted within a reasonable standard of care. Although he had no duty to separate the dogs, it was the prudent thing to do. In his attempt to separate the dogs, he was not careless.
Wednesday, December 31, 2008
Talking Tort, Part 2
In part 1 I introduced the subject of torts and hinted at some potential problems with this area of law. We'll tackle those issues in this post. I'm summarizing information from the wiki on tort reform.
Tort reform deals with revising current tort law with the following ideas in mind.
Compensation Principle
Successful tort lawsuits usually end in monetary rewards. The problem is quantifying how much money the guilty party should pay. How much is a broken leg worth? What is the exact dollar amount needed to offset emotional trauma? If I ruin your reputation, how much would it cost me to fix it?
Punitive Awards and Juries
In addition to compensation for loss, juries sometimes have the right to give punitive awards. Punitive awards are extra punishment for guilty parties that are especially despicable, and the sums can be enormous. This is problematic because victims who engender sympathy (the elderly, kids who are cute, people who can afford nice suits) could potentially receive more "justice".
Compensation Culture
Recession hitting your wallet hard? You should have spent New Years Eve driving around the bar district with your headlights turned off. If you were lucky enough to be hit by a drunk driver with good insurance you'd be rich!
Economic Effects
Frivolous lawsuits and out of control damages have a ripple effect on the economy. Insurance is more expensive. Health care is more expensive. Also, some argue that fear of litigation stagnates innovation. No Dr. House-style mavericks in the real world.
Equality in Treatment
What about injuries where no one is at fault? If I randomly have a tooth knocked out by some natural occurrence, I get my tooth fixed. If you have a tooth knocked out because I can't hit my 5-iron, you get your tooth fixed plus a monetary reward. Is this fair?
Health and Safety
Perhaps the threat of huge penalties will cause the average person to act more responsibly. Does tort law encourage safe behavior?
Tomorrow we'll look at an actual case from the Torts section of Life of a Law Student.
Tort reform deals with revising current tort law with the following ideas in mind.
Compensation Principle
Successful tort lawsuits usually end in monetary rewards. The problem is quantifying how much money the guilty party should pay. How much is a broken leg worth? What is the exact dollar amount needed to offset emotional trauma? If I ruin your reputation, how much would it cost me to fix it?
Punitive Awards and Juries
In addition to compensation for loss, juries sometimes have the right to give punitive awards. Punitive awards are extra punishment for guilty parties that are especially despicable, and the sums can be enormous. This is problematic because victims who engender sympathy (the elderly, kids who are cute, people who can afford nice suits) could potentially receive more "justice".
Compensation Culture
Recession hitting your wallet hard? You should have spent New Years Eve driving around the bar district with your headlights turned off. If you were lucky enough to be hit by a drunk driver with good insurance you'd be rich!
Economic Effects
Frivolous lawsuits and out of control damages have a ripple effect on the economy. Insurance is more expensive. Health care is more expensive. Also, some argue that fear of litigation stagnates innovation. No Dr. House-style mavericks in the real world.
Equality in Treatment
What about injuries where no one is at fault? If I randomly have a tooth knocked out by some natural occurrence, I get my tooth fixed. If you have a tooth knocked out because I can't hit my 5-iron, you get your tooth fixed plus a monetary reward. Is this fair?
Health and Safety
Perhaps the threat of huge penalties will cause the average person to act more responsibly. Does tort law encourage safe behavior?
Tomorrow we'll look at an actual case from the Torts section of Life of a Law Student.
Talking Tort, part 1
What the heck is a tort?
If I understand it correctly, torts are a general set of laws that keep people from screwing each other over. According to this wiki, tort law "addresses, and provides remedies for, civil wrongs not arising out of contractual obligations." Tort law determines whether someone has received a physical, emotional, financial, or other type of injury. If a party has in fact been injured, tort law specifies how to determine who is liable and what penalties are applicable.
The following is a list of the 7 different categories of tort, along with my brief and possibly inaccurate explanations of what each type entail.
Negligence
Of course you didn't mean to, but you should have known better.
A famous example is the McDonald's hot coffee case. Of course they didn't mean to McBurn that woman, but according to the law they should have warned her that the coffee was hot. Feel free to roll your in eyes in disgust at this silly lawsuit. We'll talk tort reform in part 2.
Statutory
Private entities have certain responsibilities to the public. For instance, baby formula companies in America make sure their products are actually safe for babies to eat. How do you like that, China?
Nuisance
My memory is hazy, but I think this is why they dragged Mr. Kringle into court in Yes Virginia, There Is a Santa Claus.
Defamation
Let's say a certain gym provided a helpful web page that compared their facility to others in the area. On this page lots of the information about a particular competitor was inaccurate (in a bad way). The competitor could sue for defamation.
This would be a case of libel. Libel is broadcasted defamation. Slander is spoken.
Intentional
Just before I left town for the holidays I changed my oil. Being extremely busy those last few days, I forgot to swing by Advance Auto Parts and dump the used oil. When I left town the pan just sat in the back of my truck for a week. Apparently it snowed. When the snow melted all the water mixed with the old oil and turned into this disgusting brown sludge that no one will accept. I've got GALLONS of the stuff. I managed to get most of it into a couple of kitty litter jugs but I still don't know what to do with it. I'm about to just dump it down my kitchen sink. Screw it. There may or may not be a specific law out there prohibiting me from dumping old Castrol GTX down the drain.
But wait! I'm sure 6 quarts of oil would be very bad for the plumbing in my apartment building. Since I'm knowingly damaging something or someone (property, in this case) I would be opening myself up to suit under intentional tort law.
If anyone knows what to do with the sludge send me an email.
Economic
Protects businesses from certain kinds of interference.
Competition
Laws to promote competition between businesses. The biggie is anti-trust law.
So that covers the basics of tort. Now for a lawyer joke.
Man: How much do you charge for answering three simple questions?
Lawyer: A thousand dollars.
Man: A thousand dollars! Isn't that a little expensive?
Lawyer: Yes it is. Now what's your third question?
If you wanted to figure out why lawyers have such a bad reputation, you could definitely start by looking at torts. Tomorrow we'll get into why torts can be bad, as well as how to remedy them.
If I understand it correctly, torts are a general set of laws that keep people from screwing each other over. According to this wiki, tort law "addresses, and provides remedies for, civil wrongs not arising out of contractual obligations." Tort law determines whether someone has received a physical, emotional, financial, or other type of injury. If a party has in fact been injured, tort law specifies how to determine who is liable and what penalties are applicable.
The following is a list of the 7 different categories of tort, along with my brief and possibly inaccurate explanations of what each type entail.
Negligence
Of course you didn't mean to, but you should have known better.
A famous example is the McDonald's hot coffee case. Of course they didn't mean to McBurn that woman, but according to the law they should have warned her that the coffee was hot. Feel free to roll your in eyes in disgust at this silly lawsuit. We'll talk tort reform in part 2.
Statutory
Private entities have certain responsibilities to the public. For instance, baby formula companies in America make sure their products are actually safe for babies to eat. How do you like that, China?
Nuisance
My memory is hazy, but I think this is why they dragged Mr. Kringle into court in Yes Virginia, There Is a Santa Claus.
Defamation
Let's say a certain gym provided a helpful web page that compared their facility to others in the area. On this page lots of the information about a particular competitor was inaccurate (in a bad way). The competitor could sue for defamation.
This would be a case of libel. Libel is broadcasted defamation. Slander is spoken.
Intentional
Just before I left town for the holidays I changed my oil. Being extremely busy those last few days, I forgot to swing by Advance Auto Parts and dump the used oil. When I left town the pan just sat in the back of my truck for a week. Apparently it snowed. When the snow melted all the water mixed with the old oil and turned into this disgusting brown sludge that no one will accept. I've got GALLONS of the stuff. I managed to get most of it into a couple of kitty litter jugs but I still don't know what to do with it. I'm about to just dump it down my kitchen sink. Screw it. There may or may not be a specific law out there prohibiting me from dumping old Castrol GTX down the drain.
But wait! I'm sure 6 quarts of oil would be very bad for the plumbing in my apartment building. Since I'm knowingly damaging something or someone (property, in this case) I would be opening myself up to suit under intentional tort law.
If anyone knows what to do with the sludge send me an email.
Economic
Protects businesses from certain kinds of interference.
Competition
Laws to promote competition between businesses. The biggie is anti-trust law.
So that covers the basics of tort. Now for a lawyer joke.
Man: How much do you charge for answering three simple questions?
Lawyer: A thousand dollars.
Man: A thousand dollars! Isn't that a little expensive?
Lawyer: Yes it is. Now what's your third question?
If you wanted to figure out why lawyers have such a bad reputation, you could definitely start by looking at torts. Tomorrow we'll get into why torts can be bad, as well as how to remedy them.
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