|
The terms assault and
battery are often erroneously used interchangeably.
However, they are not the same things. An assault can be
defined as the threat to use unlawful force to inflict
bodily injury upon another. The threat, which must be
believed to be imminent, must cause reasonable
apprehension in the plaintiff. Therefore, where the
defendant has threatened some use of force, creating an
apprehension in the plaintiff, an assault has occurred.
The focus, for the purpose of determining whether a
particular act is an assault, must be upon the
reasonableness of the plaintiff's reaction.
If the defendant threatens
to use force against the plaintiff, but clearly states
that the use of force will not be imminent, and will
instead occur at some point in the future, then the
plaintiff is unlikely to prevail on a claim of assault.
If the threat is imminent, and the defendant appears
capable and intent on carrying it out, the plaintiff
will likely succeed in proving an assault occurred. For
example, a plaintiff may have difficulty proving an
assault in cases where an individual such as a former
spouse threatens him or her over the phone and thus is
not present and capable of immediately carrying out the
threat.
Battery is the intentional
and unpermitted contact with another. A battery, for
practical purposes, is the end product of an assault. A
plaintiff in a battery claim does not need to prove an
actual injury, as long as the plaintiff proves unlawful
and unpermitted contact with his or her person or
property. For example, plaintiffs have successfully
proven a battery where the defendant grabbed onto the
plaintiff's coat. In addition, it is not necessary for
the contact to be with an object in the possession of
the plaintiff or the plaintiff's body. An unpermitted
contact with property of the plaintiff, located within
the plaintiff's proximity, may also constitute a
battery.
Back to Top
In general, the answer to
this question is yes. An owner of a dog, or any animal
for that matter, may be held liable for the injuries
that that animal causes to others. However, the ease
with which a plaintiff can win a "dog-bite" lawsuit
differs from jurisdiction to jurisdiction depending on
the legal theory of recovery available in the
plaintiff's location. Some jurisdictions require the
plaintiff to show that the animal owner knew, or should
have known, that the animal was inclined to attack or
bite. In other jurisdictions, the plaintiff may only
need to show negligence on the part of the owner in
order to recover money for his injuries. If a wild
animal, such as a lion, bear or monkey, injures the
plaintiff, the animal's owner may be held accountable
under a theory of strict liability for plaintiff's
injuries regardless of the plaintiff's conduct.
Some states have "dog-bite"
statutes designed to address these very matters.
Additionally, some municipalities may also have their
own statutes also address the responsibility of pet
owners to answer for the actions of their pets.
If the plaintiff is an
adult, the owner of an animal may offer as a defense to
the plaintiff's claim that the injured party provoked
the animal. Where the plaintiff has been given clear
warning that an animal should not be approached, petted
or talked to, and still proceeds with that action, the
owner may be able to avoid responsibility if the animal
thereafter attacks the plaintiff. This defense is not
available, however, if the plaintiff is a child.
Once the plaintiff has
established that the animal owner is liable for his
injuries, the plaintiff must also establish the amount
of his or her damages. The plaintiff should introduce
evidence, such as doctor and hospital bills, of how much
it has cost to treat the injury. In addition, the
plaintiff may be able to recover lost wages if the
injury kept the plaintiff out of work. The plaintiff is
entitled to compensation for any permanent disability
cause by the injury, as well as compensation for pain
and suffering.
Back to Top
Defamation is term that
includes both slander and libel. Generally, slander
occurs when the reputation or good name of someone is
damaged as a result of false statements that are orally
made. Libel, on the other hand, occurs when false
statements regarding another are put in writing.
Whether a particular
statement, oral or written, constitutes defamation in
the nature of slander or libel will depend upon the
particular circumstances in question and the identity of
the parties. To prevail in a defamation lawsuit, a
plaintiff must prove that the defendant made a false and
defamatory statement about the plaintiff that was
communicated to a third party. Thus a false and
objectionable statement sent in an e-mail to the
plaintiff's co-worker may be libelous. The plaintiff can
usually succeed by showing the communication was either
intentional or at least negligent. Finally, it is also
possible for the plaintiff to bring a libel suit where
the plaintiff himself repeats the alleged defamatory
statement. This is called self-publication. This can
occur, for example, when an individual applies for a job
and has to tell the prospective employer about something
the previous employer said that was false.
Before beginning a libel or
slander lawsuit, the plaintiff must determine whether or
not the objectionable statement is true. No matter how
damaging, insensitive, rude or inappropriate a statement
may be, the plaintiff will lose if the statement is
true.
The "public" plaintiff has
additional hurdles to overcome to recover for libel or
slander. An example of a public figure is a politician.
Along with establishing all of the regular elements of
the tort, a plaintiff who is a public figure must also
show that the defendant knew the false statement was
false, or at least acted with reckless disregard as to
its truthfulness. Newspapers may escape liability for
libel when they merely report false statements as long
as the paper had no particular reason to doubt the
statement at the time it was printed.
Finally, the plaintiff often
has to prove economic harm in order to recover on a
defamation suit. Therefore, the plaintiff may need to be
able to demonstrate a loss of business as a result of
the defamation in order to establish a right to the
recovery of money. However, some types of statements are
so damaging that the plaintiff does not have to prove
any economic loss. These statements tend to be those
that accuse the plaintiff of sexual impropriety or
criminal conduct.
Back to Top
Yes. The average member of
the public is entitled to privacy protections, although
the strength of those protections will vary depending
upon the particular factual circumstances.
Generally, there are four
different actions that an injured plaintiff can allege
to recover for an unlawful invasion of his privacy. The
first concerns the unlawful appropriation of another's
image. The plaintiff could make this claim, for example,
if the defendant, an owner of a car dealership, uses
plaintiff's picture in a commercial or advertisement
without permission.
The second type of wrongful
invasion of privacy is in the nature of intrusion. If
the plaintiff can prove that the defendant intruded into
his or her solitude, seclusion, or private life in a
manner that would be considered highly offensive to a
reasonable person, the plaintiff is entitled to recover
damages from the defendant. The issue of what actions
are considered highly offensive depends greatly upon the
factual circumstances under examination.
The third type of a privacy
claim is the public disclosure of private facts. This
cause of action requires that facts having no link to a
legitimate public concern be disseminated by the
defendant resulting in embarrassment, humiliation, or
offense to the plaintiff. Whether the public has a
legitimate concern in otherwise private facts about the
plaintiff is always dependent upon the particular
circumstances. For example, the public may have a
legitimate interest in knowing that a local surgeon has
the AIDS virus, which is an otherwise private matter,
due to the potential health risks involved with that
condition. In comparison, however, the public may not
have a valid interest in knowing the HIV status of the
local cabdriver, as there is no threat to the public
health or safety in that situation.
A fourth type of privacy
right is the right to be free from being placed in a
false light in the public eye. This cause of action is
very similar to a defamation action. In short, the
plaintiff alleges that a communication about the
plaintiff was made by defendant, it is untrue, and it
was made to the public. The main difference between this
cause of action and defamation is that for the invasion
of privacy tort, the communication need not be
defamatory, it need only be false and highly offensive
to a reasonable person.
Back to Top
Under ordinary personal
injury law, an injured person must claim that the
defendant should pay for that person's injuries because
of some fault on defendant's part. Even when the
plaintiff is successful, there is often a long wait
between the injury and the ultimate payment of money. To
solve this problem, many states have enacted "no-fault"
automobile insurance systems that seek to provide
compensation to individuals injured in automobile
accidents without regard to fault. Many of these systems
are considered to be first-party insurance systems,
which means that individuals who are injured in
automobile accidents make a claim for recovery against
their own insurance carrier, rather than the insurance
carrier of one of the other party's involved in the
accident.
Many no-fault automobile
systems require that every driver obtain a minimum level
of insurance before being allowed to operate a motor
vehicle. This purpose of this requirement is to limit
situations in which an individual is injured in an
automobile accident and does not have insurance to
assist in compensating for the injuries. If an injured
party's insurance company has paid out a claim under the
no-fault clause in the insurance policy, it can then
recover at least a portion of the payment from the
defendant's insurance company. In states where insurance
coverage is not required, the injured party's insurance
company can still bring a traditional personal injury
law suit against the defendant to recover any payments
it made pursuant to no-fault coverage.
Numerous types of benefits
are available under most no-fault systems. Examples of
the types of benefits available include coverage of
medical and hospital expenses for injuries sustained in
the accident, payment of lost wages, and payment, where
applicable, of funeral expenses. These types of losses
are generally considered to be economic in nature. Basic
no-fault plans typically do not pay money for claims
such as pain and suffering, loss of consortium, and
permanent disability. However, individuals who purchase
higher levels of insurance coverage may also be able to
purchase additional types of coverage, such as coverage
for these non-economic losses.
The total amount of benefits
that may be recovered will vary by jurisdiction. Some
states have no-fault systems that contain a cap on
damages. Other systems do not have such a cap in place.
Some systems also have a threshold of no-fault benefits
that must be met before tort damages may be sought.
No-fault plans can be complex and confusing, and it is
therefore a good idea to carefully examine the
particular requirements and limitations of any plan, and
to seek the counsel of an experienced attorney, if
necessary, to ensure proper application of the plan
benefits.
Back to Top
An owner of property has a
duty to protect members of the public from injury that
may occur upon the property. The injured person may be
able to recover money for those injuries if he or she
can prove that the property owner failed to meet that
duty. The hurdle plaintiffs face is that the nature and
extent of the property owner's duty will vary depending
upon the facts of the situation and the jurisdiction in
question.
Some states focus upon,
solely, the status of the injured visitor to the
property. These states divide the potential status into
three separate categories: invitee, licensee, and
trespasser. An invitee is someone who has been invited
onto the land because that person will confer some
advantage to the property owner, such as a store patron.
An owner of property is required to exercise reasonable
care for the safety of the invitee. A licensee is
someone who enters upon the land for his or her own
purpose, and is present at the consent, but not the
invitation, of the owner. For example, a door-to-door
salesman who enters the property and stays to chat with
the owner about the product that he is selling is a
licensee. The owner's duty to a licensee is only to warn
of hidden dangers. For example, if the owner knew the
front step was rotten and did not warn the salesman, the
salesman may be able to recover if he thereafter falls
through the step and injures himself. Finally, a
trespasser is an individual who enters onto the property
without the knowledge or consent of the owner and who
remains there without any right or permission.
Trespassers have difficulty suing property owners
because property owners' duty towards trespassers is not
to place traps and hazards on their property. In some
cases, the owner must also warn trespassers of the
hazards if they are unlikely to be discovered by the
trespasser and could cause serious injury or death.
Other states focus upon the
condition of the property and the activities of both the
visitor and owner, rather than considering only the
status of the visitor. In these states, a uniform
standard that requires the owner of the property to
exercise reasonable care to ensure the safety of
invitees and licensees is generally applied. The
plaintiff must prove that the duty of care has not been
met through an examination of the circumstances
surrounding the entry on the property, the use to which
the property is put, the foreseeability of the
plaintiff's injury, and the reasonableness of placing a
warning or repairing the condition. Obviously, whether
reasonable care has been rendered depends greatly upon
the particular circumstances.
The property owner's duty of
care toward children is greater than the duty owed to
adults. Even if the children are trespassers or engage
in dangerous behavior, the property owner must still
take precautions to prevent foreseeable harm to
children. The classic example of a property owner's
greater duty of care to children arises in the context
of backyard swimming pools. Owners must fence, gate, and
lock their pools in a manner that keeps children out and
if they fail to do so, they will be found liable for
injuries to children, even if the children were
trespassers that were warned to stay off the property.
Back to Top
Generally speaking, an owner
of property may not use deadly force to defend the
property. Society values human life and bodily integrity
much higher than property. Therefore, the life, health
and safety of an individual, even an intruder, is
considered to be more valuable than the china or stereo
which that individual is trying to steal.
An owner is not prohibited,
however, from invoking self-help methods in defending
property from another. An owner of property is entitled
to use reasonable force to prevent someone, or
something, from entering onto her property or to remove
something from her property. What, under normal
circumstances, may constitute a battery, assault, or
other intentional tort, will not be considered unlawful
in situations where it is performed as a reasonable use
of self-help in defense of property. However, the use of
force calculated to do great bodily harm, or cause
death, is not permitted.
One narrow limitation upon
the use of deadly force is authorized. Where an intruder
threatens personal safety, as well as a threat to
property, or where the intruder is committing a forcible
felony, deadly force may be appropriate. For example, if
a robber enters a home and, while stealing items,
attempts to rape the homeowner, the owner may be
justified in shooting the robber. However, an owner who
witnesses a neighborhood child stealing a bicycle from
the owner's garage, without any threat of bodily harm,
is not justified in shooting that child.
Back to Top
Most individuals who are
injured at work are prohibited from filing ordinary
personal injury lawsuits against their employers.
Instead, injured workers are generally required to file
a claim under the state's workers compensation
procedure. An injured railroad worker must bring a claim
for benefits under the Federal Employer's Liability Act
(FELA) for compensation for his injuries. FELA is
similar to many state workers' compensation systems with
the exception that a railroad employee must be able to
prove some level of employer negligence in order to make
a recovery. In comparison, most state systems are based
upon no-fault theories of recovery where neither the
negligence of the employer or the employee is examined.
In practice, it is generally not difficult for an
injured railroad employee to prove that the employer
was, at least to some degree, negligent.
Laws, rules, and regulations
require a railroad to furnish a reasonably safe
workplace for the benefit and protection of its
employees. In keeping with this requirement, a railroad
has a duty to inspect and discover defects that may
result in injury. In some circumstances, this may
include the duty to uncover defects that should be
obvious to a railroad employee. A railroad also has a
duty to warn its employees of any hazardous or unsafe
conditions of which it is aware, or should be aware.
A railroad is also required
to take other steps to ensure the safety of its workers,
including providing adequate training and supervision,
appropriate tools and safe equipment, and enforcing only
reasonable work quotas. The FELA claimant can usually
show that at least one of the required regulations has
not been met, thereby establishing the employer's
negligence.
Back to Top
A slip and fall action is a
type of personal injury lawsuit filed by a plaintiff who
has been injured by a slip and fall, usually on the
defendant's property. Examples of very common slip and
fall plaintiffs include the grocery store patron who
slips on a spill or a piece of food laying on the floor,
and falls, causing injury to himself; and a hotel guest
who slips in the shower and injures her back in the
process.
The plaintiff in slip and
fall cases must usually show that the owner of the
property had notice or knowledge of the condition, and
failed to clean it up and rectify it within a reasonable
amount of time. If the plaintiff slipped on a grape that
had been lying on the floor for two hours, and the
manager of the store had walked past it and inspected it
five times before asking someone to clean it up,
liability is likely.
If the plaintiff has
knowingly encountered a hazard, then he or she may have
trouble holding the defendant liable. For example, if a
hotel guest squirts baby oil onto the floor of the
shower; steps into the shower and attempts to do the
jitterbug; and then falls and breaks an ankle, liability
on the part of the hotel is highly questionable.
However, if the cleaning staff in the hotel repeatedly
tells management that the non-skid treads in the bathtub
for room 212 are missing and the hotel fails to replace
them, the hotel will probably be liable for damages to a
guest who is injured.
Back to Top
No. Generally, most states
that recognize a wrongful death cause of action limit
the pool of potential plaintiffs. Some states limit this
group to the deceased's primary beneficiaries, defined
as the surviving spouse and the deceased's children.
Other states allow the parents of the deceased
individual to bring a wrongful death claim. In addition
to these individuals, some states recognize the rights
of any dependent, whether closely related or not, to
bring a wrongful death claim provided the person
actually a depended on the deceased for economic
support. To those jurisdiction, it apparently makes
little to no sense to allow the second cousin once
removed of the deceased, who saw him once every five
years at a family reunion, to recover for the loss of
the deceased's future earning potential.
Some states require any
recovery gained in a wrongful death action to be divided
amongst the deceased's heirs at law or to be distributed
to the deceased's heirs at law as it would be in any
normal probate proceeding. In these situations, distant
relatives may receive some "trickle down" of damages,
even though they were not financially dependent upon the
deceased during his life.
If more than one plaintiff
is entitled to recover, all plaintiffs will share in the
award. The manner in which the award is divided can be
confusing and will depend upon the laws in the
particular jurisdiction where the matter is brought.
Back to Top
Personal injury actions
require, by their very nature, that someone be injured.
The requisite injury can either by physical or, in some
cases, emotional. The general goal of personal injury
actions is to place the blame for the injury on the
party who caused it and to require them to compensate
the injured for the losses sustained.
Not every injured plaintiff
is entitled to recover damages for the injury he or she
sustains. Besides an injury, the plaintiff must
establish, through evidence, that the defendant is
legally liable for his or her injuries. This requires
proof of causation both in terms of actual, factual
causation and proximate, or legal causation. Whether
legal causation is established depends on the facts and
circumstances of the particular matter in question. The
defendant can be held liable as a result of either the
actions that are taken, or the actions that are not
taken.
Some personal injury actions
revolve around legal causation derived from a concept of
intentional conduct, whereby it is generally held that
if one intentionally harms another, or knows that the
conduct which is engaged in causes a substantial
likelihood that harm will result, liability for the
resulting harm will in fact attach. Other personal
injury actions have as their legal causation a looser
concept of fault called negligence. Under a negligence
theory, in comparison, one is liable for the results of
actions, or inaction, where an ordinary person in the
same position should have foreseen that the conduct
would create an unreasonable risk of harm to others.
Still other types of personal injury actions are based
on strict liability, a no-fault system where liability
may attach regardless of the fault of the various
parties, including the plaintiff.
In some situations, the
defendant's conduct, while questionable, does not rise
to a level that entitles the plaintiff to a recovery.
For example, if a plaintiff knowingly and willfully
chooses to encounter a known hazard, the law holds that
he or she has "assumed the risk of injury" and therefore
the defendant is not liable. This theory applies for
instance in a case where the plaintiff walks on an
obvious build up of snow and ice caused by the defendant
property owner's failure to shovel his sidewalk, falls
and breaks her hip, and is unable to recover for her
injuries because she knew of the hazardous condition and
willingly chose to encounter it. Plaintiffs are denied
recovery in other cases if their subjective belief about
a situation does not match an objective "reasonable
person" standard. For instance, where the defendant
approaches the plaintiff and states "I might poke you in
the eye if you wear that red sweater again," it is
likely that no actionable assault occurred due to the
fact that there was no immediate threat of harm that
caused reasonable apprehension on the part of the
plaintiff.
Personal injury law can
involve many different types of claims, theories, and
principles. Some of the more common, or interesting,
types of personal injury actions include:
Animal bites
can result in the animal owner's liability to the
person who is bitten or who is injured while trying
to avoid a bite.
Assault and battery
are two intentional torts that involve improper
contact with another, without permission or consent,
or the threat of such contact.
Aviation accidents
quite often result in either serious injury or
death. When these accidents occur, serious questions
regarding the liability of the airline, its
employees, or the government may arise.
Defamation and
privacy are two separate causes of action that
concern the rights of individuals to have their
names and reputations protected, and also to have
their privacy preserved.
Motor vehicle
accidents raise numerous questions as to the
liability of one participant to another and also
raise interesting questions regarding who should be
responsible for covering the losses.
Premises liability
concerns the responsibilities of owners and
possessors of property to safeguard others from
dangerous conditions or hazards on the property and
to prevent others from being injured while on the
property.
Property damage
causes of action concern the rights of owners or
possessors of property to protect their property
from damage, theft or intrusion.
Railroad accidents
may result in personal injury or death and subject
the railroad to liability.
Slip and fall
cases are very common causes of action and relate
closely to the duty of an owner or possessor of land
to maintain the property in a safe manner for the
benefit of others lawfully entering upon the land.
Wrongful death
actions may be brought by the dependents or
beneficiaries of a deceased individual against the
party whose action or inaction was causally related
to the death.
Back to Top
Disclaimer
This publication and the
information included in it are not intended to serve as
a substitute for consultation with an attorney. Specific
legal issues, concerns and conditions always require the
advice of appropriate legal professionals.
Back to current FAQ |
