Tort Law for Dummies


Diagram of law
Diagram of law

When specific civil legislation and boundaries get crossed intentionally or unintentionally, and someone gets hurt, the law has a way to remedy it. These cases are tort cases.

In simple words, a person takes civil action, usually with the help of a personal injury lawyer. Next, if unable to resolve the matter, the victim's representative gets help from the court to find the solution.

The damage sustained in such a case is called tort. Assault, negligence, and battery are some of the most common examples of tort cases.

What Does Tort Law Do?

In tort cases, one party claims that another party has harmed it in a particular way. Then the victim asks for compensation for the damages. Sometimes the offending party has only violated the special rights of the plaintiff. The offenders are very rarely dealt with as criminals in most civil cases or torts.

Is A Tort Just Like A Crime?

There are some occasions where the laws are dealing with tort and criminal laws overlay. But civil actions cannot be named as illegal activities. If another party damages a party, the affected party takes the case to the law. That party is seeking compensation for injuries and medical expenses.

Such a case will be dealt with tort law and not as criminal law. The punishment factor involved in criminal acts will also not come into play in such cases.

How Does Tort Litigation System Work?

This system is a complete legal structure. Here, the lawyers work with claimers to settle the case. The goal is to get the settlement amount from the offending party. If it doesn’t get resolved outside, then it is taken to court for trial.

What Does It Mean By Mass Torts

When many people who have been afflicted damage by one entity in a similar way and they bring the case to tort attorneys for resolution, this is called a mass tort. There are more than two dozen people with the same or similar complaint against the same entity, e.g., a company that makes an individual product. On most occasions, these people come with a representative.

Why Is Tort Law Necessary?

Most people understand that damage caused by someone does not get recovered from his punishment, especially physical punishment. On occasions, the most important thing for the victim is to get compensated for the damage and loss caused by the offender.

That’s where the tort law steps in and instead of just getting the offender punished it settles the case in a way that the victim’s loss get compensated too.

Understanding Tort Liability

When a person or party has crossed the boundaries drawn by the tort law, he’s not liable for the results caused by this breach of the law. For example, a person A steals the laptop of C, he will be considered liable to pay A back the money equal to the price of the laptop or the computer itself. This type of tort is named as conversion.

Tortfeasor

A person who comes in violation of the tort law and damages another party mentally, financially, or physically is called the tortfeasor. He’s the offending party who must pay for the losses.


Jan 28, 2019

Eggshell Skull Defined

WHANGANUI - FEB 22:Humpty Dumpty in Kowhai Park Whanganui NZ on Feb 22 2013.It's the most unique children park in New Zealand with colorful and unique features known from famous children's stories.
WHANGANUI - FEB 22: Humpty Dumpty in Kowhai Park Whanganui NZ on Feb 22, 2013. It's the unique children park in New Zealand with colorful and unique features known from famous children's stories.
Can You Get Legal Help For Previous Existing Condition Car Accidents? WHANGANUI - FEB 22: Humpty Dumpty in Kowhai Park Whanganui NZ on Feb 22, 2013. It's the unique children park in New Zealand with colorful and unique features known from famous children's stories. Car crashes can upend a person's life. Even minor accidents can cause severe issues. From having to repair or replace a car to a long-term injury to lost work, and emotional trauma, it sucks! Some say that crashes are like icebergs, with more remaining under the surface. Pre-Existing Conditions May Mean Having Eggshell Thin Bones or Skin Some people are delicate. In law, we say that he or she: has an eggshell-thin constitution. Such is the case with accidents that leave long-term harm and trauma to people with existing health issues. Or they may have a previous medical condition. And that could make healing slower than with an average human. Such remains the case with so-called eggshell-skull victims. But these primarily remain people with poor bone structures and immune systems. Because of this, they may be unable to heal in the aftermath of physical trauma. The Law Says the Defendant Must Pay Regardless of a Pre-Existing Condition? Yes, this is true. Such victims have weakened already. And these folks can suffer inordinately. Many can face many broken bones. But an ordinary person may suffer few or no injuries in the same scenario. Additional issues may arise concerning insurance policies or increased medical bills. For example, you will need money for physical therapy. Also, many problems can emerge from lost work. Imagine Humpty Dumpty falling off the wall since the defendant King's men pushed him off. As we know, that caused Humpty to splatter and crack. The King couldn't argue he did not have some fault, because Humpty failed to be tough enough. No, instead, in tort law, you "take the victim as you find him." So the King will need to pay up. The king should do his best to make Humpty whole again if he is still alive. Also, the king may need to compensate the family left behind if Humpty died. So the king could be liable for wrongful death. What if, for example, an old lady gets killed in a crosswalk following a low-speed impact? Compare her to a well-conditioned male football player. He could easily shake it off. But no discount will be offered to the defendant for the senior woman's frailty. Instead, the tables turn in favor of the survivors. Because of this, the Courts take the victims as they find them, no matter how weak or how strong a person is. If you or a family member has suffered harm in such a fashion, legal options exist. The increased suffering and medical expenses should get covered. Ehline Law's team of legal pros specialize in personal injury and auto accidents. Also, we have the training to handle such cases. Our team has fought and won similar situations in the past.   Further Reading: https://www.cdc.gov/nchs/fastats/accidental-injury.htm Centers for Disease Control and Prevention Accidents or Unintentional Injuries. https://www-esv.nhtsa.dot.gov/Proceedings/23/files/23ESV-000223.PDF Accident And Injury Risks of Elderly Car Occupants. https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/811325 Children Injured in Motor Vehicle Traffic Crashes.

Jan 5, 2019

Res Ipsa Cases and Examples

Michael P. Ehline, Esq gives a tutorial review and examples of res ipsa and negligence. EhlineLaw.com.

Jan 4, 2019

Examples and Explanations of Intentional Torts

Law terms
Law dictionary and gavel on white background
Law dictionary and gavel on white background When a particular act or omission by a party causes harm to another, an intentional tort occurs. Act, intent, causation, and consequence are the four main factors of an intentional tort. The offending party commits an action with a particular intent, which results in the causation of the effect and harm. What are the Main Intentional Torts? Battery. Conversion Intentional Infliction of Emotional Distress Trespass to Chattel. Trespass to Land. Assault False imprisonment Above are some typical examples of intentional torts. Below you will find the basic definitions of these tort offenses.   What is Battery? Intentionally touching someone can’t be justified unless an exception applies. A battery happens when a defendant touches a plaintiff inappropriately. But the offender must have had the intent to commit the particular act. And this touching must result in some form of harm. (i.e., damage to the victim.). What is False Imprisonment? This confinement happens when the offending party restrains the victim within certain boundaries with the intent of confining.  The offender must also do this with some intent. The purpose in the mind of the defendant should be refusing to let the victim go outside certain boundaries. At the same time, it is essential no reasonable means of escape exists for the victim to retreat. What is an Assault? An assault takes place when the offender or the defendant takes an intentional act that results in the offensive contact or harmful effects damaging the other party. (i.e., plaintiff or victim.). In this particular case, the plaintiff must know the harm that the defendant caused him. Also, the imminence of the harm is a significant factor to consider before proving assault. The case is established if defendant took inentional action, and desired to damage the other party through bad contact. What is Trespass To Land? This case takes place when the defendant has invaded the property of the plaintiff with intentions of harming his possessory rights of the property. If the case wins, the offender wins compensation from the offender. But plaintiff must show substantial damage. Otherwise nominal damages may get you a dollar. What is Intentional Emotional Distress? Referred to as intentional infliction of emotional distress, this type of case involves a defendant whose reckless and intentional behavior caused the victim extreme mental agony. The damage doesn’t have to be physical. In simple words, the act of the defendant is so torturous and mentally distressful that it is considered uncivilized. Hence, it remains unacceptable in a civilized community. What is Conversion? In this tort, the defendant intentionally acts in a way that causes harm to the ownership of the plaintiff's property. Here, the plaintiff has enough justifiable grounds to recover the full amount for property interfered with by the defendant. What is Trespass To Chattels? This tort also involves the interference of the respondent in the rights of possession of the plaintiff’s personal property. The defendant might intentionally damage the property, or the owner of the property is temporarily deprived of his personal belongings. Trespass to chattel exists when chattel property is wholly taken away from the proprietor. Plaintiff must show he or she didn’t intend to meddle with other people’s rights. In conclusion, these are the main intentional torts that lawyers or law student deal with daily.

Jan 2, 2019

Are Discovery Sanctions the Same as Spoliation Damages?

Closeup of female hands with shredded papers
Closeup of female hands with shredded papers
Want to sue for the other party hiding evidence? Maybe sanctions are enough. Closeup of female hands with shredded papers Most California plaintiff's lawyers hate it that the California Supreme Court eliminated our ability to sue for a once-popular cause of action, called "spoliation."  It was considered a tort to spoil, or "destroy" evidence. But sanctions can still be awarded by a judge. However, they are rare. Plus, only the judge and not the jury gets to decide payment amounts and liability, etc. What is the Spoliation of Evidence? "The spoliation of evidence is the intentional or negligent withholding, hiding, altering, or destroying evidence that is relevant to a legal proceeding.[1] Spoliation has two possible consequences: in jurisdictions where the (intentional) act is criminal by statute, it may result in fines and incarceration for the parties who engaged in the spoliation; in jurisdictions where relevant case law precedent has been established, proceedings possibly altered by spoliation may be interpreted under a spoliation inference." (Source 1.) It used to be that it was an independent tort in this state.  So what if a party that destroyed or concealed evidence? What if that damaged a party's case? A separate tort claim could be filed, if so. But this was a new action on top of their actual lawsuit or defense against a lawsuit. After all, in federal courts, spoliation, and punishment, therefore, was recognized as early 1817 in The FORTUNA---Krause et.al.Claimants, (March 17, 1817), 15 U.S. 161, 4 L.Ed. 209, 2 Wheat 16 [ship seizure; concealment of documents may result in adverse inference or adverse determination], and is based upon the inherent power of courts to control abuses in litigation. And it often arises from a request for a jury instruction re adverse inference. Lewy v. Remington Arms (8th Cir 1988), 836 F.2d 1104, 1111. In any event, as California goes, so goes the country. And in Cedars-Sinai Med. Ctr. v Superior Court (1988) 18 Cal.4th 1, 17, the tort was eliminated in the Golden State (Source.) Are Sanctions Sufficient Punishment? Well, if sanctions gut a Plaintiff's case, and keep them from winning, probably no punishment is enough. Right? Maybe not. There are safeguards. Evidence Code Section 412 mandates that a jury finds against a party that should have and could have produced stronger and more compelling evidence. And recently, in New Jersey, a District Judge upheld a ruling of a Magistrate’s finding of sanctions on an appeal in a liability case. The case was out of the U.S. District of New Jersey. But no evidence of spoliation was found. Litigation Hold? District Judge Noel L. Hillman upheld this case in the June 30, 2011 opinion of U.S. Magistrate Judge Ann Marie Donio, in the State National Insurance Co. v County of Camden, 08-cv-5128 (D.N.J. March 21, 2012). The case involved the failure of the county to preserve its electronically stored information, when it did not issue a “litigation hold” on the email system, after notification of the State’s National’s lawsuit against it. The County of Camden appealed. Here, Camden claimed it could not be sanctioned. After all, there was no actual spoliation. But the Court denied the appeal on the motion for spoliation sanctions. Here the court determined whether the party failed in its duty to preserve, citing Kounelis v. Sherrer, 529 F. Supp. 2s 503, 518 (D.N.J., 2008). Judge Donio found the County’s efforts to be significantly lacking. Deniro found a failure to institute a legal hold after the triggered event should stop the automatic deletion of email. He also found that defendants must retain copies of any backup tapes. That failure the judge found, “warranted the imposition of reasonable attorney’s fees and costs.” Were The Sanctions Avoidable? The County may have avoided extremely severe sanctions since the court did not find spoliation. The determination to compensate State National for costs incurred, according to Judge Hillman, in upholding Judge Donio’s opinion, saying “to determine the scope of the deletion or destruction,” which State National “still has suffered damages in the context of attorneys’ fees and costs.” Some would argue that the sanctions were so large, they might as well be a monetary award in tort. The judge stated that “(p.6) as cited in footnote 2 (p. 6), State National "...requested more than $70,000 in sanctions.” Judge Hillman said that Judge Donio has the authority to determine a fair award to State National. And thus, the judge made a factual finding. So sanctions overturning the sanctions absent findings of abuse was unlikely. There were no findings of abuse. Punishing Sanctions May Have the Same Effect as a Damages Award Also, the original sanctions order stated that other penalties existed for evidence preservation failures. Also, this includes whether spoliation occurred or not. The Court spent a great effort in sorting out the claim. And the fact that there was not a legal hold issue or measures taken to protect ESI. But this was avoidable if there had been a legal hold. State National v. County of Camden shows the need for litigants to preserve adequately. The County learned its lesson. So maybe, just maybe, Jersey leads the way, and California can learn from this? Only time will tell. Of course, in California, there are "issue, terminating and evidence sanctions," which we will discuss later. In any event, discovery sanctions are not damages that are awarded for spoliation. Suffice it to say, a terminating sanction could gut a defendant's defense. And with the right jury, it could almost be like winning a tort claim for spoliation, in my opinion.  One must see the forest through the trees and be creative, but great advocates do just that! We report, you decide.