It's The Law - A Layperson's Guide TORTS
A tort is a civil wrong that is not based upon a contract. An example may help clarify that definition. If I punch you in the nose because you say some bad things about this book that I have written then you could sue me civilly for the tort known as battery. In addition, you could go to the local magistrate or the police department and seek to have me arrested for the crime of battery. If you were to sue me civilly, then that would be a civil suit brought in your name against me in the appropriate courthouse. If a criminal prosecution were to be initiated as a result of that battery then that would be a criminal action brought in the name of the government against me for having committed the crime of battery. You would not technically be a party to that criminal prosecution but you would be the main witness or otherwise referred to as the complaining witness. There are several different types of torts. The most common tort that you may have some contact with is that of negligence. Negligence is a failure to exercise ordinary care. In the definition of a tort, as stated above, I mentioned that it is a civil wrong that arises from a non-contractual basis. If you and I enter into a contract and you breach the contract I can sue you civilly for that breach of contract. The claim that is being asserted there is simply a breach of contract claim. If on the other hand, I run a red light and while running that red light strike your vehicle which is lawfully in the intersection then you could sue me civilly for my negligence in having run the red light. That negligence claim is a tort action that does not arise out of any contract between you and me. The concept of negligence is founded upon the idea that a duty is owed from one person to another and a breach of that duty which then causes an injury or
damage to the other party. For instance in the red light example, the duty that I owed was the duty of not running a red light. If I violate that duty by running the red light and as a result of that you are injured then all of the elements of a negligence claim have been met. The essential elements of any tort claim are fourfold: There must be a duty that is owed by the defendant (the party against whom the claim is made) to the plaintiff (the party bringing the claim); there must be a breach of that duty or violation of that duty by the defendant; that breach of duty must have then been a proximate cause of injury to the plaintiff; and then finally there must be actual injury or damage to the plaintiff. We have already discussed briefly the first two elements of any tort claim; i.e., duty and breach of duty. The third element of any tort claim is that of proximate cause. Proximate is not to be confused with the term "approximate". Proximate literally means immediate to, contiguous, touching or direct. Approximate means the opposite. A proximate cause of an event is one which is reasonably foreseeable. If I run a red light then it is reasonably foreseeable that I may injure someone and as such my negligence may be a proximate cause of injury. Let's take another example. Suppose I am playing a game of catch with my son in front of my house and my wind up is perhaps a bit too aggressive and I overthrow the ball. The ball goes through the front window of your home and then through the rear window of your home striking a barbecue stove which is on your back porch which then falls off the back porch, rolls down the hill and strikes your neighbor. The first question is whether I was negligent? I probably was negligent for allowing the ball to be thrown so hard as to break the front window of your home. The next question is whether that negligence was a proximate cause of injury to your home. Clearly it was. The final question is whether or not that negligence was a proximate cause of injury to your neighbor. That is a tougher question. It comes down to essentially an issue as to whether it was reasonably foreseeable that by throwing the ball as hard as I did that it would not only go through the front window but also the back window and then strike your barbecue oven, knock it off the back porch which would then cause it to roll down the hill and strike your neighbor. That type of resulting injury is probably not reasonably foreseeable and as such the chain of causation would have been broken at some point in that sequence of events. Typically, in that type of case, the question of proximate cause would be submitted to a jury for resolution as to whether or not my negligence was a proximate cause of injury to your neighbor. The fourth and final element of any tort claim is that of damages or injuries incurred. The issue of damages will be discussed at the end of this section. Back to top Auto Accident
Probably the most common form of tort claim that is asserted are claims arising from automobile collisions. Those tort claims normally involve some careless or reckless act by one person resulting in a collision with another motor vehicle. Whether the operation of a motor vehicle involves actual negligence is going to depend upon how the driver's conduct is viewed in the light of the Rules of the Road as set forth either in the State code or the local Code governing traffic regulation. The Rules of the Road or traffic regulations establish the standards for operation of motor vehicles. A violation of these rules or regulations typically constitutes negligence. Motor vehicle accidents involving common carriers (buses, taxis, trains, planes) may have a set of rules that are slightly different than what would apply in a motor vehicle accident case. Common carriers are frequently held to a very high degree of care. As such, if there is even slight negligence on their part that contributes to the injury of one of their passengers, then the common carrier may be liable. Back to top Premises Liability
Another area of the law that produces many tort claims is that of premises liability. A person who is lawfully on someone else's premises and who is injured as a result of some negligence of that property owner may have a basis for a claim against that property owner. The duty or standard of care to which the property owner is held may depend on the status of the injured person The different statuses that may apply are that of invitee, licensee or trespasser. An invitee typically is someone who is coming onto the property for some legitimate business purpose. A licensee may generally be thought of as a social guest. A trespasser is someone who is not allowed on the premises and who is there without the knowledge or consent of the property owner. Exactly what duty is owed by the property owner to each of these different classes of persons may vary dramatically from state to state. The general rule of law however is that a property owner has a duty to exercise ordinary care to keep his premises in reasonably safe condition. When an owner fails to exercise that ordinary care and someone who is lawfully on the premises is injured as a result of that, then the property owner may be liable. One thing that distinguishes premises liability claims from other types of tort claims is that the party who is injured (the plaintiff) must prove that the property owner had notice of the defective condition on the premises. For instance, if you slip and fall on a liquid that is on the floor in the local supermarket, do you necessarily have a basis for a claim against the owner of the supermarket? You may not unless you have some evidence of how long that liquid had been on the floor. If it turns out that the liquid had only been there a short period of time and is there because of the actions of some other customer in the store and therefore the property owner did not have a reasonable opportunity to see the liquid and clean it up then there may not be any negligence on the part of that property owner. The logic of this rule is that a property owner is not necessarily a guarantor of the safety of all persons on his premises but is simply required to exercise ordinary care. Obviously he can only exercise ordinary care as to those defects or deficiencies that he has some knowledge of or that he should have known of. In that same example, if you were able to prove that the liquid had been on the floor for twenty minutes, then that may be sufficient to make out a claim against the property owner because within that period of time it could well be argued to a jury that the property owner should have known that the liquid was on the floor and therefore should have cleaned it up or placed signs out to warn customers of the presence of the wet floor. Let me give another example of a premises liability claim that could potentially have some merit. Suppose you are the tenant in a large apartment building where there have been a series of crimes committed resulting in serious personal injuries to the occupants. The property owner is aware of those crimes yet takes no steps whatsoever to warn other tenants of the crime wave in that building and likewise takes no steps to improve security in the building. If you are then subsequently assaulted and injured as a result of a person coming onto the premises for the purpose of committing a crime then you may have a claim against that property owner based upon a negligence theory. That is, the property owner knew or should have known that there was a danger to the tenants yet the property owner took no steps to either warn the tenants or to decrease the security risk to the tenants. Back to top Let's look at that claim from the point of view of how the four elements of a tort claim apply. The first element of a tort claim is the establishment of a duty owed by the defendant to the plaintiff. The duty in this case arises out of the relationship of the parties. That is, the property owner or the landlord owes a duty of reasonable care to persons who are lawfully on the premises. You may ask what is reasonable care? Quite frankly, reasonable care is essentially whatever a jury says it is. A textbook definition of reasonable care is that degree of care that a prudent person would exercise in that circumstance. If the landlord in this instance failed to take some steps to warn the tenants or persons lawfully on the premises of the criminal incidents occurring, then that may be evidence of a breach of the duty to exercise reasonable care. If in fact the assault in question was perpetrated by some person who was unlawfully on the premises then the third element of a tort claim has been met in that that breach of duty has been shown to be a cause of injury. The final element of a tort claim is simply that of injury or damage. In this case, the injury or damage consists of the personal injury to the plaintiff. Back to top Product Liability
Another type of tort claim is a product liability claim. A product liability claim is one wherein a person contends that a particular product is defective in some way and that defect has produced injury to that plaintiff. You may have some recall of a famous product liability claim that was brought against Ford Motor Company many years ago relating to their Pinto automobile. Ford made an engineering decision to place the gas tank on the Pinto in the rear of the vehicle even though they knew that the placement of the gas tank in this location would result in serious injury to the occupants if the vehicle was involved in a rear end collision. Documentation was produced during that litigation that established that Ford knew or should have known of that risk yet made a conscious decision to continue to keep those vehicles on the road because they felt that the overall financial benefit would weigh in their favor even though they recognized that they would have to pay several million dollars in claims as a result of injuries. The jury in that case returned a very substantial award against Ford Motor Company for compensatory damages for the injuries suffered by the plaintiff in that case and also awarded punitive damages to punish Ford for its wrongful conduct in not taking the vehicle off the road or warning the public of the dangers associated with that vehicle. Another fairly well known product liability case that has received a good deal of press coverage involved a McDonald's restaurant. In that case, an elderly woman purchased a cup of coffee from a drive-in window at McDonalds and then apparently placed that cup of coffee between her legs and subsequently spilled the coffee. The case received a good deal of attention because it was touted by the insurance industry as being an example of a runaway jury verdict. In fact, the insurance industry failed to disclose to the public that in that particular case the plaintiff had made an attempt to settle the case for simply her medical bills which were substantial because she was hospitalized for over a week. McDonalds however, refused to entertain any reasonable settlement offers. The evidence that was presented at trial was that McDonalds had been warned on many occasions that their coffee was approximately twenty degrees hotter than what was recommended by the local health department and was so hot that it could cause third degree burns. In fact the coffee served by McDonalds was not just hot (135 to 140 degrees) but at a 180 to 190 degrees was able to cook through all layers of skin within seven seconds. McDonalds admitted that its coffee was40 to 50 degrees hotter than is fit for human consumption and knew that more than seven hundred people, including babies, had been burned by its coffee. McDonalds, however, refused to reduce the temperature of its coffee because it felt that it sold more coffee at that level than it would at a lesser temperature. The plaintiff in this case was an elderly woman who suffered third degree burns over six percent of her body. The state where that case was tried was a comparative negligence state and as such the jury having found the plaintiff partially negligent in terms of how she carried the coffee reduced her verdict by that proportion which was due to her own negligence. The jury in addition to awarding a compensatory damage amount also awarded punitive damages against McDonalds equal to its gross receipts of two days of coffee sales in order to teach it a lesson. The actual verdict in that case was $200,000.00 for compensatory damages and $2.7 million dollars in punitive damages. The punitive damage award was reduced by the court on a post trial motion to $480,000.00. As a result of that verdict, McDonalds reduced the temperature of its coffee. That case was a product liability case in that the theory of recovery asserted by the plaintiff was that McDonalds was negligent in selling a product (coffee) that was defective (i.e., too hot). A product liability claim may be founded upon negligence principles but it may also raise a legal theory known as breach of warranty. Within the sale of a product there is either an express or implied warranty that the product is reasonably fit for the purpose for which it is sold. If it turns out that the product is not reasonably fit for that purpose then that may constitute a breach of warranty and may give rise to a claim for damages if someone is injured as a result of that breach of warranty. Breach of warranty claims technically are contract claims although they may be asserted as part of a product liability lawsuit. Normally in a product liability claim the plaintiff will need to present some expert testimony as to what the defect is in the product. For instance, in the Ford Pinto case the plaintiff in that case had to present expert testimony from engineers to establish that the placement of the gas tank in the rear of the vehicle was dangerous and was not good engineering. Back to top Malpractice - Medical, et al.
Professional liability claims are another form of tort actions that may be asserted. Professional liability claims may come in the form of medical malpractice actions, legal malpractice actions or architectural malpractice actions. In many states the medical profession has been granted certain special protections. For instance some states have imposed a cap or a limitation on the amount of money that can be recovered against any doctor or health care provider as a result of their negligence. The theory behind that cap on damages is to help hold down the cost of medical malpractice insurance coverage for health care providers. In addition, some states have imposed special requirements that must be met before a doctor or a health care provider can be
sued. For instance, in some cases the plaintiff must have the claim reviewed by a medical malpractice review panel which then makes a preliminary determination as to whether the claim has any merit. The decision rendered by the medical malpractice review panel may in some instances be admissible in evidence if the case is tried in front of a jury. A professional liability claim is different from any other type of tort claim that may be asserted because within these types of claims the plaintiff has to typically present testimony from a witness who has some expertise in that field as to what is the standard of care that should have been adhered to by that professional person and then present evidence as to the breach of that standard of care and how that breach caused damage to the plaintiff. In a medical malpractice action, that testimony likely comes from another medical doctor in the same field of expertise as the defendant that is being sued. The same concept applies normally in legal malpractice actions and also in architectural malpractice actions. There could be some instances wherein expert testimony would not be necessary because the negligence is so obvious that there is no need to bring an expert witness into court to explain the technical aspects of the case. For instance if a patient goes into the hospital for an operation on the right knee and the doctor ends up operating on the left knee, obviously there is no need for expert testimony to establish that the standard of care is that the doctor should have operated on the right knee. Any reasonable person would know that the operation on the left knee was unnecessary and therefore was negligent on the doctor's part. Back to top Injuries to Minors
You have all probably heard of the term "attractive nuisance". That is a concept of negligence that is recognized in many states. An attractive nuisance is an object which by its very location and configuration is attractive and also dangerous to children. If the owner of that object allows it to remain accessible to children knowing that it will attract them and knowing that they probably will be injured if they come in contact with it, then that may be a basis for a negligence claim against the owner of that object. Many tort claims that are brought involve children. Children, in general, are given a favored status in the law meaning that they have special protection. This is true likewise in regards to tort claims. For instance, in regards to negligence claims, children under 7 years of age generally are legally incapable of committing any act of negligence. Children between the ages of 7 and 14 are generally presumed to be incapable of committing negligence although that presumption can be rebutted with the presentation of evidence showing that the child is, in fact, capable of committing a negligent act because of his intelligence level, experience level and other factors that may bear on that. Back to top Res Ipsa Loquitur
Those of you with some knowledge of Latin may appreciate the term res ipsa loquitur. Literally this Latin term means "the thing speaks for itself". Res ipsa loquitur is a rule of evidence that states that a jury may conclude that a defendant is negligent if in fact the plaintiff has been injured (1) as a result of an instrumentality which is in the exclusive control of that defendant, (2) the defendant has or should have exclusive knowledge of the way that instrumentality was used and (3) the injury is one that would not normally have occurred if the instrument had been used properly. To take a textbook example of that, suppose you are walking down the street and a dresser drawer falls on your head. It so happens that the dresser drawer came from the apartment window above and had been placed there by the tenant who was doing some spring cleaning and the tenant accidentally bumped the dresser drawer. Have the elements of res ipsa loquitur been met in that instance? They probably have been in that the dresser drawer was in the exclusive control of the defendant, the defendant had exclusive knowledge as to how the dresser drawer was used and finally the injury is one that would not normally have occurred if the dresser drawer had been used properly. As long as you can prove those basic elements, you probably would be entitled to recover money against that tenant for her negligence. Back to top Standard of Care
Within most negligence claims there arises an issue of standard of care. In an automobile accident case the standard of care normally is defined by the traffic regulations. For instance the traffic regulations dictate that you shall not enter an intersection on a red light. That regulation establishes the standard of care by which all persons are bound in terms of passing through an intersection. In other contexts there may be building codes or other state or local codes that may establish the standard of care by which property owners are bound. Those codes can be the basis upon which a negligence case may be founded because they establish the standard of care to which the defendant is held. If the defendant has violated that code then that may be evidence of a breach of duty by that defendant. If that breach then resulted in damage to you then you may have a basis for a negligence claim against that property owner. The concept of standard of care becomes especially important in certain types of professional liability claims; for instance, medical malpractice claims, legal malpractice claims or architectural malpractice claims. In those types of claims generally the plaintiff has to establish what the standard of care is. The standard of care normally is established by means of the presentation of evidence by experts in that field. For instance, if in the course of your open heart surgery the surgeon happens to penetrate your coronary artery with a catheter and you suffer irreparable damage, has the standard of care for that procedure been violated? That is not something that I could answer as a non-medical person. Nor is it something that you could answer as a non-medical person. Nor is it something that a group of jurors could answer as non-medical people unless they hear evidence from a medical expert establishing what the standard of care is. The standard of care in that particular instance may be that the surgeon through the use of radiological instruments, should have been able to tell where his catheter was going and therefore should have known when he was about to puncture the arterial wall and therefore could have avoided it if he had he been attentive to the radiological instrument that showed him where the catheter was. In that instance, the standard of care evidence presented by the plaintiff may show that the doctor was negligent in puncturing the arterial wall with that catheter. You can probably rest assured that the defendant doctor will bring in his own medical expert who will refute that and who will state that there is no standard of care in this circumstance, that this was simply an unfortunate accident that happened, and that there was no negligence on the part of the doctor. Back to top Proximate Cause
In addition to proving that there was a breach of the standard of care by a doctor the plaintiff must also show that the breach was a proximate cause of the injury of which the plaintiff complains. For instance in the example of the puncture of the arterial wall by the catheter, the defendant may argue that even if that was negligence the patient only had a 5% chance of survival and therefore he probably was going to die anyhow and, as such, any negligence that may have been committed was really irrelevant. This is a frequent defense raised in professional negligence claims and is frequently one that has some merit; i.e., the doctor may have been negligent, but the patient would have died anyhow. This reemphasizes the importance of the concept of proximate cause. That is, even though the doctor may have been negligent, the negligence may not have been a cause of injury since the patient may have suffered that injury in any event. Back to top Strict Liability
Another concept within the field of negligence that occasionally receives some popular attention is the concept known as strict liability. Strict liability means that the defendant is liable for his conduct in certain instances without a showing of actual negligence if that conduct was a cause of injury to the plaintiff. Strict liability normally only arises in regards to activities that are extremely dangerous. For instance, if you are operating a quarry and in the course of blasting with dynamite you damage the home of one of your neighbors, that neighbor may not have to prove that there was any negligence on your part in the blasting operation but simply has to prove that the blasting was the cause of damage to his home. In that circumstance, the party conducting the blasting may be strictly liable for any damage that results from that dangerous activity. This is a principle that is applied in certain circumstances such as blasting and other types of activities that the law may deem to be inherently dangerous. Back to top Contributory Negligence
Different states have different ways of how they deal with negligence claims in that some of them acknowledge the concept of comparative negligence while other states are known as contributory negligence jurisdictions. In a comparative negligence jurisdiction, the negligence may be compared between the parties. For instance, going back to the red light example, if I ran the red light and struck you while you were in the intersection but you happened to be intoxicated and laying in the middle of the intersection due to that intoxication then there obviously would be some negligence on your part. The jury would be called upon to compare the different levels of negligence. For instance in that example they might conclude that I was 50% negligent and you were also 50% negligent for being intoxicated and laying down in the middle of the intersection. If the jury then determined that your total injuries were $100,000.00 you would only receive $50,000.00 because you were 50% negligent. Back to top Other Defenses
In a contributory negligence jurisdiction there is no comparison of negligence which means that if you were negligent even by 1% and that negligence was a cause of your damage, then your claim is barred and you receive nothing. Contributory negligence is a principle derived from the common law which is still recognized in some states. It is indeed a very harsh principle of law and in many instances works an injustice to people who are probably entitled to recover something for their damages but may not be entitled to 100% compensation. There are several affirmative defenses that may be raised in regards to a tort claim. An affirmative defense is a defense that may be raised by a defendant that constitutes a complete bar to a claim. One of those affirmative defenses is that of the statute of limitations. Every state has set forth a statute of limitations for virtually every type of civil claim whether it be a tort claim, contract claim or otherwise. If the claim is not asserted within the time allowed by that statute, then the claim is deemed to be barred. The assertion of a claim is accomplished in most states by actually filing the law suit at the courthouse. Some state require actual service of the suit papers upon the defendant before the statute of limitations runs. Another defense that may be asserted in a tort case is that of assumption of the risk. Assumption of the risk involves the plaintiff understanding the nature of the risk involved and a voluntary acceptance of that risk. For instance, if you decide to go out to the supermarket during the middle of a very bad ice storm recognizing that the roads and walkways are not navigable and while walking from your car to the store, you slip and fall, then you probably have assumed the risk since you obviously knew that there was a risk associated with going out during those weather conditions and you voluntarily chose to accept that risk. Several states still recognize various types of immunities. That immunity may come in the form of sovereign immunity, charitable immunity or family immunity. Sovereign immunity is based upon the concept that the King cannot be sued; i.e. the sovereign or the government cannot be sued. Many jurisdictions have waived that immunity either in whole or in part. If the local or state governmental entity that you are planning on suing is deemed by state law to be immune from tort claims, then you may not be able to sue that entity at all unless they expressly choose to waive their immunity. Many governmental entities by means of state law have expressly waived their immunity either entirely or have allowed claims to be asserted against them up to certain dollar amounts. This is something that varies from state to state. Charitable immunity is a doctrine that applies in many states to organizations that are truly charitable. A charitable organization is generally considered to be one that fulfills strictly a charitable function and does not make any attempt to collect its debts. Charitable organizations may be immune from tort claims. For instance, if you were injured on the premises of the Red Cross because of some negligence on their part, depending on the law in that particular state where the Red Cross building is located, the Red Cross may well be subject to the defense of charitable immunity because they truly are a charitable organization. There are certain states that still recognize elements of family immunity; that is, tort claims may not be asserted against parents or siblings for certain types of behavior. Back to top Vicarious Liability
A concept within tort law that is of significant importance is that of vicarious liability. The concept of vicarious liability essentially means a principal may be liable for the conduct or the misconduct of his agents. That principal/agent relationship arises in the employment context between an employer and an employee. It may also arise in other contexts involving contractors. From a plaintiff's point of view the concept of vicarious liability is important because it typically is that legal concept that allows for complete recovery of damages. For instance, if you are rear ended by a truck driven by an employee of the ABC Company, your attorney in filing a suit would file the claim against not only the driver but the also the employer. If suit was filed only against the driver and it turns out that there was no insurance covering that vehicle, then whatever judgment you got against the driver may be uncollectible simply because the driver may not have the financial resources to pay the judgment. If, however, you get the judgment also against the employer, then that employer probably would have the financial resources either in the form of insurance coverage or otherwise to satisfy the judgment. The employer in that case is liable for the conduct of the employee assuming that the employee was acting within the scope of his employment. If, on the only hand, the employee was off on a personal mission of his own while operating a company vehicle and the employer had no knowledge of that and had not consented to it, then there may not be any vicarious liability in that sense because the employee was off acting on his own and was not doing anything on behalf of the employer at the time of the collision. The concept of vicarious liability has been the subject of a good deal of litigation over the years. For instance, suppose an insurance salesman comes into your home to sell you insurance on behalf of the XYZ Company and he presents to you his business card along with all the brochures of the XYZ Company and convinces you that based upon the extensive advertising of that Company and because of the well recognized name that this is a very reputable company to deal with and based upon that you purchase a policy of insurance and tender a check in a substantial amount. If the salesman then absconds with the money, is the XYZ Company liable for your loss? They probably are even though that salesman may not be a direct employee of the company. The salesman in that instance may be an independent contractor but the XYZ Company is still probably going to be liable because they are the ones who gave that salesman all the trappings of authenticity, gave him the opportunity to engage in his fraudulent behavior and essentially set the whole process in motion through the use of its company name and company advertising. Back to top Joint & Several Liability
An important principle in terms of liability in a tort action is what is known as joint and several liability. For instance, if I run a red light and strike you in the intersection and the vehicle that I am driving belongs to my employer then I may be liable for that act of negligence and my employer may also be liable. The liability that is imposed there is known as "joint and several" which means that the plaintiff could sue me alone or could sue the employer alone or could sue both of us and whatever judgment the plaintiff gets against us could then be collected by the plaintiff against me solely or against the employer solely or against either one of us to the extent that we have assets to pay. Under the principle of joint and several liability each defendant is 100% liable for the judgment that is rendered. That is a principle that has been under a good deal of attack lately because it can create circumstances wherein a defendant can wind up paying more than his fair share of any judgment especially if the other defendant cannot afford to pay. Joint and several liability is something that is well ingrained into our legal system and the rationale behind it is to make sure that the Plaintiff can obtain at least one full recovery for whatever judgment is entered. It then becomes the burden of those defendants against whom the judgment has been entered to fight among themselves as to any eventual sharing of that liability. Back to top Intentional Torts
Aside from the types of claims mentioned above, there are several intentional torts that can be asserted. Those intentional torts consist of such claims as assault and battery, conversion, defamation, false imprisonment, fraud, malicious prosecution, invasion of privacy, trespass and the intentional infliction of emotional distress. All of these claims have specific elements that must be met and proved in order for a plaintiff to prevail. Back to top Assault & Battery
A battery is simply an unwanted touching of one person by another. Conversion is the taking of a person's property without that person's consent. Defamation can come in either written (libel) or oral (slander) form and consists of making injurious statements about a person that are untrue. If those injurious statements involve an imputation of a criminal offense, involve moral turpitude, impute a
contagious disease, impute unfitness to perform the duties of office or words that prejudice a person in his profession or trade then they may be referred to as being defamatory per se. If the alleged statement is not defamatory per se, then the plaintiff may have to prove what are called special damages in order to recover against the defendant. Special damages would come in the form of out-of-pocket expenses incurred as a result of those defamatory statements. For instance, if you are a surgeon and I call you a butcher, that is a statement that is defamatory per se and therefore you could assert a defamation claim against me even though you may not have incurred any special damages; i.e., any out-of-pocket expense as a result of my making that statement. If, on the other hand, you are unemployed and I call you a crook, and as a result of making that comment you incur so much emotional distress that you seek psychiatric help then you may likewise have a basis for a defamation claim against me. Even though the comment made is not defamatory per se, the fact that you have incurred medical expenses as a result of my making the comment about you satisfies the special damages requirement and therefore gives you the basis for a defamation claim against me. Back to top False Imprisonment
Claims of false imprisonment and malicious prosecution arise in the context of a person improperly restraining another person or initiating a criminal prosecution which is subsequently found to be unjustified. Back to top Fraud
As mentioned above, fraud is the intentional misrepresentation of a material existing fact made for the purpose of inducing reliance and which in fact does induce reliance to the detriment or damage of the plaintiff. Fraud is a very difficult thing to prove. Unlike most civil claims which must be proven simply by a preponderance of the evidence or what is referred to as the greater weight of the evidence, fraud claims must be proved by clear and convincing evidence which is a much higher standard therefore making it much more difficult to prove. The reason for the higher standard of proof in regards to fraud claims is that the law recognizes that fraud is an offense that involves surreptitious behavior that may be subject to different interpretations. It is therefore felt that the plaintiff should have a more difficult burden of proof in regards to these types of claims than would apply in regards to the run of the mill tort claims that may be asserted. Back to top Personal Injury Damage
The final element of any tort claim that must be established is that of damages. Damages may also be thought of as the injury incurred. The injury may come in the form of personal injury such as a broken arm or leg, pain and suffering, emotional distress, medical expenses, lost wages and/or permanent disability. Those are all potential elements of damages that may be claimed in a tort action. Back to top Wrongful Death
If the injury suffered results in the death of the plaintiff, then that person's estate may assert what is known as a wrongful death claim. A wrongful death claim is a claim wherein the injured party rather than having simply suffered personal injury has actually died as a result of the misconduct of the defendant.
A wrongful death claim may be based upon a negligence theory, a breach of warranty theory or based upon an intentional tort theory such as assault and battery. Wrongful death claims are a fairly recent phenomenon in that the common law did not recognize wrongful death claims on the theory that once a person had died obviously there was no amount of money that could compensate him. As such, his claim died with him. The state legislatures, however, over the years have come to recognize that even though death may bring an end to the suffering and damages incurred by the decedent there may be persons left behind who have been damaged and may continue to be damaged in the future as a result of the passing of that person. Every state has its own wrongful death statute and that statute will define exactly what damages are recoverable under the wrongful death act. Typically the damages recoverable are damages consisting of solace and grief experienced by the survivors, loss of earnings suffered by the dependents left behind as a result of the death of the decedent and his subsequent inability to generate income, any medical expenses incurred by the decedent in his last illness and the funeral expenses. Back to top We Handle: Personal Injury - Car Accidents - Medical Malpractice - Product Liability / Defective Products - Premises Liability - Slip and Fall Accidents - Construction Accidents - Off Label Drug Injuries - Pedestrian Accidents - Bicycle Accidents - Motorcycle Accidents - Truck Accidents - Wrongful Death Claims Serving: Fairfax County, Fairfax City - Arlington, Alexandria -Loudoun County - Washington, D.C. - Maryland, Springfield - Burke, Oakton - Falls Church, McLean - Vienna, Reston, Herndon - Tysons Corner, Great Falls - Langley - Sterling - Leesburg Ashburn - Prince William County - Woodbridge
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