Ch07 Personal Injury Practice Tort Law and Workers Compensation.docx

CHAPTER 7: PERSONAL INJURY PRACTICE: TORT LAW AND WORKERS’ COMPENSATION TRANSPARENCY MASTERS Tort Law in General Tort Law (vocabulary) Personal Torts Other Torts and Defenses Negligence (the elements) Types of Negligence Actions Defenses to Negligence Intentional Tort Strict Liability Damages PURPOSE AND SUBSTANTIVE CONTENT This chapter gives students an overview of some of the more common concepts of tort law. Intentional torts, negligence, and strict liability are discussed. The elements of various causes of action and common defenses are explained. Workers’ Compensation law is introduced. CHAPTER OUTLINE Technology Corner Case File 7-1 Introduction 7-2 Tort Law in General 7-3 Intentional Torts Personal Torts Business Torts Property Torts Fraud Defenses to Intentional Torts 7-4 Negligence Negligence in General Types of Negligence Actions Defenses to Negligence 7-5 Strict Liability Dangerous Animals Ultrahazardous Activities Defective Products Defenses to Strict Liability 7-6 Damages 7-7 Liability for Torts of Another 7-8 Personal Injury Practice and Paralegals 7-9 Future of Tort Law and Personal Injury Practice 7-10 Workers’ Compensation Featured Website Chapter Summary Terms to Remember Questions for Review Questions for Analysis Assignments and Projects SKILL BUILDING The examples, assignments, case questions, and projects provide the opportunity for students to build the following skills: Legal Analysis Factual Analysis Writing Case Analysis CASE SUMMARIES, CASE QUESTIONS, AND SUGGESTED ANSWERS Hustler v. Falwell, 485 U.S. 46 (1987) (Pg. 134) Hustler Magazine (published by Larry Flynt) published an ad parody ridiculing Jerry Falwell and suggesting that his first sexual experience involved his mother and an outhouse. Falwell sued for damages for invasion of privacy, libel, and intentional infliction of emotional distress. The trial court directed a verdict on the privacy claim. The jury found for Hustler and Flynt on the defamation claim, but awarded damages based on intentional infliction of emotional distress. Hustler and Flynt appealed, claiming that the First Amendment gave them the right to publish a parody of a public figure and thus protected them against an action for intentional infliction of emotional distress. The Supreme Court agreed and found for Hustler and Flynt, saying that a public figure cannot recover for this type of action unless he can prove that a false statement of fact was published with actual malice. This is the case that is the basis of the movie, People v. Larry Flynt. What was the factual basis for Falwell’s claim against Hustler for intentional infliction of emotional distress. Suggested Answer: Falwell claimed that Hustler and Flynt published an ad parody suggesting that Falwell had sex with his mother in an outhouse. This was so outrageous that it caused Falwell emotional distress. Why did Falwell lose this lawsuit? Suggested Answer: Even though the Court agreed that the ad parody was outrageous and in bad taste, it found that the First Amendment gives special protection when public figures or public affairs are involved. Limiting the right to free speech in such circumstances would seriously interfere with Constitutional freedoms. In order to recover damages under any theory, a public figure must prove that false statements of fact are made with actual malice. In this case, it was clear that Falwell was a public figure. The ad parody in this case could not be taken as a statement of fact since it was clearly labeled an ad parody, not to be taken seriously. The table of contents also listed the ad as fiction. Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928) (Pg. 142) Plaintiff was standing on a railroad platform. A man, carrying a small unidentifiable package, jumped aboard a railroad car. A guard on the car, trying to help him board the train, dislodged the package from his arm. The package contained fireworks, which exploded when they fell. The explosion caused scales at the other end of the platform to fall, injuring plaintiff. The issue in this case was whether Plaintiff had a cause of action for negligence. The majority opinion (Cardozo) approaches the question from the perspective of duty of care, stating that the plaintiff must show that “as to him” the negligent act was dangerous. Since this couldn’t be done, the case was dismissed. The dissent (Andrews) takes a different view and approaches the issue from the perspective of proximate cause. Andrews states that the duty of care required for negligence should not be a duty owed to individual persons, but a duty owed to society to protect it from unnecessary danger. The question of liability thus becomes a question of proximate cause, rather than duty of care. Proximate cause, he says, depends in each case upon many considerations. In general however, proximate cause means that because of public policy, or a rough set of justice, the law will refuse to extend liability beyond a certain series of events. Why did Justice Andrews dissent from the Majority opinion? Suggested Answer: He felt that the majority took much too narrow a view on the concept of duty of care. Duty of care should not be limited to specific individuals but rather to society at large. If there is a duty to protect anyone from danger, there is a duty to protect everyone. According to Justice Andrews, what is proximate cause? Suggested Answer: In general, proximate cause means that because of public policy, or a rough set of justice, the law will refuse to extend liability beyond a certain series of events. Proximate cause can differ in different situations, but Andrews offers the following hints to determine if it exists. Proximate cause should be something without which the event would not happen. Is there a natural and continuous sequence between cause and effect? Was the one a substantial factor in producing the other? Was there a direct connection between the events, without too many intervening causes? Is the effect of the cause on the result not too attenuated? Is the cause likely to produce the result? Is the result foreseeable? Is the result too remote from the cause? Baum v. New York Central Railroad, 12 Misc. 2d 622, 175 N.Y.S.2d 628 (1958) (Pg. 147) While appearing on stage with a horse, a television actor was injured when the horse stepped on his hand. The actor sued, claiming damages as a result of negligence and breach of warranty. The complaint was dismissed because there was no evidence of any vicious or unruly propensities known by the owner of the animal and thus no evidence of negligence. Neither was there any evidence of breach of warranty. The horse acted like a horse. This case illustrates that damages alone are not enough for a lawsuit. Negligence or some other legal basis must be shown. Review the elements for a cause of action for negligence. Which element or elements were missing here? Suggested Answer: Negligence requires: duty of care breach of duty proximate cause actual cause damages In this case, the breach of duty is missing. There was no negligent act. Here, the plaintiff probably needs to show that the animal had some known dangerous propensities or had injured people on prior occasions. Burnett v. National Enquirer, Inc., 144 Cal. App. 3d 991, 193 Cal. Rptr. 206 (1983) (Pg. 150) In this case, plaintiff, Carol Burnett, sued the defendant, the National Enquirer, for compensatory and punitive damages as a result of an article published in defendant magazine. The article claimed that she became drunk in a public restaurant, had an argument with Henry Kissinger, and disturbed other guests. A jury awarded the plaintiff $300,000 in compensatory damages and $1.3 million as punitive damages. The trial judge reduced the amounts to $50,000 for compensatory and $750,000 for punitive damages. On appeal, the appellate court found the punitive damages still to be excessive. Defendant’s net worth was estimated to be $2.6 million and its net income for the period under consideration was about $1.56 million. The court found the amount excessive. The amount of compensatory damages was upheld. The award of $50,000 was for compensatory damages. Were these for general damages or special damages? Suggested Answer: Because the statements were libelous on their face, plaintiff only needed to show general damages. In this case, those general damages included loss of reputation, shame, mortification, and injured feelings. Why did the court reduce the amount of punitive damages? Why was the National Enquirer, as opposed to its employees, held responsible for the punitive damages? Suggested Answer: In comparison to the net worth and net income of the defendant, the court felt the award was excessive. The court states that the punitive damage award constituted 35% of net worth and 50% of net income. (Note: It would be interesting to compare these figures with the award of punitive damages in the Simpson case, where the percentages are much higher.) The National Enquirer was held responsible because the court found that the National Enquirer knew and ratified the acts of its employees and agents. Why did the plaintiff in this case recover both compensatory and punitive damages whereas the respondent in the Hustler magazine case recovered nothing? Suggested Answer: Both of these cases involved First Amendment issues, in particular the requirement that no actions for defamation would lie against public figures unless it can be shown that false statements of fact are made with actual malice. In the Hustler case, the plaintiff was unable to show that any false statements of fact were made. In this case, plaintiff was able to prove that the statements were not factual and that they were published with malice. Malice was established by showing that the publishers knew the articles were false and published anyway. ETHICAL CHOICES You are working in a law office with an attorney who is preparing a client for a deposition. You are present taking notes. The client tells the attorney that he was not wearing a seat belt. The attorney tells the client, “If you say that during the deposition, the value of your case seriously diminishes.” Should you do anything? (Pg. 154) Points to Discuss: Did the attorney commit a breach of ethics? Has he told his client to lie, or just told him the consequences of his actions? If the attorney did commit a breach what can a paralegal do? Can you say anything to the attorney? To the client? To another attorney in the firm? If the attorney is ultimately responsible to the client, does the paralegal have to do anything? How does client confidentiality enter into this? A young woman, a plaintiff in your office, sued a local fast food chain. She scalded her mouth on a cup of very hot chocolate. She asks you how much her injuries are worth. You know that your office just settled the same type of case with comparable injuries for $5000. What do you tell her? (Pg. 154) Points to Discuss: What is the difference between legal advice and legal information? How do you handle this type of situation if the client becomes insistent? QUESTIONS FOR ANALYSIS 1. Analyze the following factual situations and discuss possible torts. a. Peters points a gun at Quentin’s back, Quentin being unaware of what is happening. Peters then shoots and hits Quentin. b. Jones consents to a blood transfusion, providing the doctor uses blood from a designated donor. The doctor does the transfusion using a general supply of blood. No injury results. c. Smith is late for an appointment and runs a red light, thinking that there was no cross traffic. Unfortunately, Smith collides with a vehicle that he had not seen. The driver of the other vehicle is injured. d.  Roberts, a supervising attorney with a county prosecutor’s office, consistently makes sexual remarks to James, a paralegal in the office. On several occasions she also invited him out for drinks after work. James always declined the invitations and asked Roberts to stop the remarks. Recently Roberts gave James a poor job review, even though his work is very good. Suggested Answer: a. Because the victim was not aware of any threat there is no assault. Because he was shot, there is a battery. b. The doctor went beyond the consent given, thus there is a battery, even though no injury resulted. The lack of injury would eliminate a negligent tort. c. This is a classic case of negligence. Even though the defendant intended to run the red light, he did not intend to hit the other vehicle. d. Under modern statutes, sexual harassment is clearly present. The facts also support causes of action for intentional infliction of emotional distress and defamation. 2. Review the Case File at the beginning of the chapter. Write a memo discussing the possible tort liability of Carpets Etc. Suggested Answer: The memo should include a discussion of the negligence of both Brentwood and Carpets Inc. as well as the status of the plaintiff. Of key importance is the fact that the plaintiff is an employee of Brentwood and might be precluded from suing under Worker’s Compensation laws. 3. Review the Ethical Choices in this chapter. Which NALA and/or NFPA ethical rules or guidelines apply to the situations? Review your state’s ethical rules (hint: go to www.nala.org and find a link). Which of those rules apply? Suggested Answer: The NALA and NFPA rules are found in Appendix II of the text. State’s rules will vary Chapter 7: Personal Injury Practice: Tort Law and Workers’ Compensation True/False Personal injury practice deals with lawsuits for money damages for injuries that people have suffered. An intentional tort is one in which the party committing the tort intends to do the act knowing it will cause serious injury. A cause of action is a legally recognized right to relief or damages. A tortfeasor is the injured person. Defamation involves the unprivileged publication of a factual statement that is untrue and injurious or defamatory to a person’s reputation. The two major defenses to intentional torts are consent and privilege. Negligence is the failure to act as a reasonably prudent person would act under similar circumstances. Contributory risk is a defense to negligence. Strict liability is liability without fault. Vicarious liability is also known as respondeat superior. Multiple Choice Punitive damages are also known as: special damages medical damages personal damages exemplary damages extraordinary damages Intentional infliction of emotion distress causes: mental suffering general damages special damages negligence mental disorder Filing an unjustified criminal complaint against an individual leads to the tort of: negligence civil-rights violation malicious prosecution slander per se fraud Which of the following is not an element of negligence? duty to use due care intent damages causation breach Res ipsa loquitur means breach of duty causation the things speaks for itself it is proven reasonably prudent person Which of the following is not a type of negligence action? liability of landowners automobile accidents professional negligence intentional infliction of emotional distress defective products Which of the following is not a defense to negligence? assumption of the risk contributory negligence comparative negligence immunity self defense Activities that give rise to strict liability are: driving a dangerous car engaging in an ultrahazardous activity fighting battery selling pharmaceuticals The law will not allow a person to escape liability for dangerous activities by simply: leaving the state hiring an independent contractor to perform for them declaring bankruptcy changing his or her procedures after an injury has occurred declaring that the injured person assumed the risk In general, injured workers cannot sue employers under: workers’ compensation law tort law negligence peculiar risk doctrine assumption of the risk Answer Key 1. True 2. False 3. True 4. False 5. True 6. True 7. True 8. False 9. True 10. False 1.d 2.a 3.c 4.b 5.c 6.d 7.e 8.b 9.b 10.b