Table of Contents
- What is a Contract?
- What is a Tort?
- What is the Tort Litigation System?
- What is a Tortfeasor?
- Common Tort Examples
- Negligent Torts
- Strict Liability
- Product Liability
- Vicarious Liability
- Joint Liability
- Breach of Contract
- Civil Claims
- Personal Injury Settlements
If you have been injured due to an accident or error, you should always know your legal options. There are many overlapping issues in some tort cases that raise issues of contract law, fraud and even unfair or deceptive business practices. The need for a legal expert, such as Los Angeles accident and personal injury expert Michael Ehline is paramount. Below, find some helpful tips and responses to FAQs from Michael, who has used his experience fighting and winning hundreds of cases to help injury victims.
A contract is a legally binding agreement between two or more parties. The signatories agree to abide by certain terms and if they do not live up to these terms, may be challenged in a court of law.
As shown in the above video, a tort is a non-criminal offense, or a civil wrong other than a breach of contract. Instead of the government challenging a person over the breaking of a law, a tort alleges that the defendant has done the plaintiff a demonstrable wrong. This can include bodily injury, property damage, defamation, or other similar actions. Torts are fought in court for a form of compensation. Torts and the causes behind them may be superficially similar to the actions taken after a crime, but these are not the same. A person may be arrested for assault and battery by the District Attorney and convicted. If the wronged party desires compensation for such assault and battery, they must file a tort. This would pay for medical bills, pain and suffering, loss of work, and other issues.
The tort litigation system is put in place to file and settle tort claims. This process often includes the filing of such a claim, discovery of evidence, attempts to settle the claim, and if no agreement is reached, going to court.
- A mass tort is one claim acting with another group of plaintiffs suing a party for an alleged wrong. Often these mass torts include more than 25 people and a common attorney to represent their common interests.
- Tort law is in place to assist the aggrieved when the criminal justice system does not fully remedy the situation. This may be as the result of unfixed property damage, medical expenses, or significant trauma.
- Tort liability comes into play when a party violates tort law. If one party causes economic damage to another– through injury or other means, the value thereof is liable. The amount to replace a car or an orthopedist’s bill would be two examples that would fall under the tort of conversion.
A tortfeasor is a party that violates tort law by causing damage to another party. This can include physical damage, economic harm, or mental stress. These can run the gamut from reckless driving to asbestos contamination to battery. An intentional tort is caused when the tortfeasor committed a tort on their own volition. These intentional torts require four factors: 1.) the act, 2.) intent, 3.) causation, and 4.) consequences. The exact intent and the one that occurred need not be exactly the same, but if there is an intent to cause harm, it would be part of an intentional tort.
Common torts are fought over in and out of courts every day. Many include similar ones including:
- Trespass to land
- Trespass to chattel
- False imprisonment
- Intentional infliction of emotional distress
- Battery is the use of unjustified or improper physical contact. This occurs when the aggressor intentionally acts to cause harm. Battery must include both the intent to cause harm and the result of actual harm.
- False imprisonment under intentional tort law is the direct restraint of an individual without proper legal justification or an assault on dignity. This can include an aggressor confining a person without a certain boundary that the victim is aware of at the time of constraint. This must happen with the intent of confining the victim within these fixed boundaries with no reasonable means of escape.
- Intentional emotional distress, or IIED occurs when a plaintiff intentionally or recklessly causes the victim severe mental distress by demonstrable excessive conduct. This does not have to include physical pain but includes severe emotional pain. This is difficult to completely prove but often is defined as conducts out of the boundaries of decency.
- Consent occurs when one party gives permission for another to act in a certain manner. If the victim party does not give consent to a certain action, the aggressive party can be at fault for intentional harm.
- Necessity under tort law allows parties to act in a manner that would ordinarily be unlawful if necessary. This can include destruction of property or self defense, if it is in the interests of the innocent party to prevent a greater injuries. This could include the necessity to prevent a public danger or damage to a private interest.
- Self defense includes the ability to defend oneself from an intentional tort. The victim may only respond with reasonable force if there is the threat or realization of immediate harm. In order to defend oneself from such an intentional tort, the victim must believe that the 1.) threat is immediate, 2.) reasonably about to occur, and 3.) proportional force is used.
Intentional Torts to Property
- Intentional torts to property can include beyond the human body. This can include violations to property, including trespasses. These trespasses are violations or injuries against property that are usually not weighed as heavily as harm to people.
Trespass to land occurs when the victim can prove that there was:
- An invasion affecting an interest in the exclusive possession of his property
- An intentional doing of the act which results in the invasion
- Reasonable ability to predict that the act done could result in an invasion of possessory interest, and substantial harm to receive compensatory damages
- Trespass to chattels is the intention interference of the right to possession of personal property. This must include actual damage to the property or a significant deprivation of use or dispossession. The aggressor must have 1.) intentionally damaged the chattel, 2.) deprive the possessor of its use for a substantial period of time, or totally dispossess the chattel from the victim. In this case, bad faith is not required, and the Plaintiff does not need to have intend to interfere with the rights of others.
- A nuisance under intentional tort law happens when a Defendant creates unreasonable interference with the enjoyment or use of the owner or possessor’s property interest. These can include creating smoke, odors, noise, or vibrations that can interfere with the other party’s ordinary comfort. These can exist in both public and private settings. A public nuisance can interfere with the common right of the public to live their lives normally. This can include a public health issue, hazards, illegal actions including prostitution or gambling, or the obstruction of public thoroughfares. A private nuisance is one in which there is an unreasonable interference with a private party’s ability to use and enjoy their property. A Plaintiff can only sue if they have an interest it was his own property. There must be demonstrable evidence of the substantial interference from normal settings.
- An attractive nuisance is one where an artificial condition creates a temptation to individuals, often children. This can include one in which a party risks their health or life due to such a temptation. This can include a pool that is not properly fenced or signed.
- A tort of conversion is one in which there is an intentional interference with the victim’s possession or ownership of property so substantial that the Defendant should pay for its whole value. This could occur when there is the interference with the rights of an owner to enjoy or use their property.
This can happen in several manners. In one, the Defendant takes control over the Plaintiff’s property. This can include when an unknowing purchaser of stolen goods acquires the property. Another is if the Defendant transferred the chattel to the other party. Another can occur if there is a withholding of goods, which can occur if one car blocks another. Lastly, such a tort of conversion could occur due to the destruction or serious damage of property.
Torts of Negligence
A tort of negligence occurs when a Defendant has the responsibility to keep care of a place or situation and through their action or inaction violates that duty of care. In this occasion, if the Plaintiff is harmed or injured it is a tort of negligence. This is different from intentional torts in that it is not due to intentional action to cause harm.
Elements of a Tort Claim
In order for the Plaintiff to recover for negligence, the Plaintiff must establish that over 50% of the responsibility falls with the Defendant. This preponderance of evidence is based on several factors:
- Duty: A legally recognized relationship between the parties on a question of law
- Standard of Care: The required level of expected conduct
- Breach of Duty: A failure to meet the standard of care
- Cause-in-fact: The Plaintiff’s harm must have the required nexus to the Defendant’s breach of duty
- Proximate Cause: There are no policy reasons to relieve the Defendant of liability
- Damages: this is the requirements that the Plaintiff suffered a cognizable injury
The standard of care in a negligent tort case is the level of conduct expected of a party to avoid negligence liability. The defendant must act in such a manner that a prudent person would under similar circumstances. This objective standard can help determine if the party is liable.
- Malice is necessary for some cases as a threshold. In these cases the Plaintiff must prove that the Defendant acted in a false or reckless manner with disregard of whether it was true or false. In this case, the Plaintiff must prove that the Defendant had serious doubts over the truth of their statement. As in the case of NY Times v. Sullivan, a false statement about the official conduct of public officials is defamatory if made with actual malice.
A duty of care is the Defendant’s legal duty to protect other parties from unreasonable risk of harm. This can be determined by:
- The extent to which the transaction was intended to affect Plaintiff or other parties
- The foreseeability of harm to the Plaintiff
- The degree of certainty that Plaintiff suffered injury
- Closeness of connection between Defendant’s conduct and injuries suffered
- Moral blame attached to Defendant’s conduct
- Policy of preventing future harm
- What is a breach of duty of care in negligent torts?
A breach of duty is the failure of the Defendant to meet the standard of care. This could include a failure to act in a reasonable manner under similar circumstances. This considers the risks that would be known or foreseeable to the Defendant at the time of action but not through hindsight. The degree of care that should be expected is the result of three factors. This includes:
- The likelihood of injury
- The probability and seriousness of injury
- Injury balanced against the interest sacrificed to avoid the risk or burden
- A proof of breach is a manner to demonstrate that an action or inaction has caused harm relative to the customs of such an activity. This can be determined by the actions of a certain action or industry and whether the Plaintiff’s deviation from such custom is evidence of lack of due care. The Defendant could try to avoid such liability by showing adherence to custom. However, use of custom does not by itself establish a breach of duty or demonstrate harm in fact. The Plaintiff must also prove that the harm they suffered is the same such custom sought to avoid.
- Proximate Cause is the demonstration that such harm or injury was directly predictable as the result of the Defendants actions. This is usually more difficult to prove than cause in fact. Even if the Plaintiff can establish a cause-in-fact, if the injury or damage was too remote or unforeseeable they cannot collect.
- Foreseeability is the idea that the Defendant should have foreseen as a risk of its conduct the general consequences or type of harm suffered by the Plaintiff. The Defendant is liable only for such consequences of their negligence which would have been reasonably foreseeable at the time of their action. If the type of harm is foreseeable, it is not necessary to prove the extent of such harm.
Negligent emotional distress occurs when a party negligently creates a state of severe mental or emotional distress in another party. The Plaintiff must suffer physical contact by such negligence by the Defendant according to the Impact Rule. In a small number of jurisdictions, the Zone of Danger is used, modified to allow recovery for the Plaintiff in the physical zone of danger if they showed a physical manifestation of such stress, which could include a miscarriage, heart attack, ulcers, and a rapid change in weight. In such cases the Plaintiff could recover for near misses due to the risk of physical impact. If there is a definite and objective physical injury produced as the result of emotional trauma the Plaintiff can recover. In some cases, courts allow recovery for such emotional trauma including the erroneous notification of a loved one’s death or emotional harm due to the negligent handling of chattel of sentimental value or related cases.
Strict liability is liability without fault. A party can be held liable for damages for injury or loss even if they took all possible care to prevent such incidents. This acts as an incentive to prevent future accidents through the use of more care and reduction of high risk activities. Strict liability claims is often the result of:
- Categories: Animals, abnormally dangerous activities, and products liability
- Storage of explosives, fumigation, crop dusting, storage of flammable liquids, pile-driving, maintenance of hazardous waste site, blasting, or transportation of explosive liquids.
A product liability claim arises when manufacturers or distributors of defective products cause bodily or property harm. These case come with three common elements, including improper design, manufacture, or lack of warning. Claims can arise due to negligence, breach of warranty, or under strict liability.
Vicarious Liability Vicarious liability cases come about when one party is liable for the conduct of another. This can occur without direct fault. In these cases, the Plaintiff must establish a special relationship– most commonly asserted as the employer-employee relationship. This will invoke the Respondeat superior doctrine. The employer would be liable for tortuous acts of their employees within the scope of employment that cause injury or property damage to a third party. Employers that have neither acted nor intended such action may be liable for their employee’s negligence precautions when they have no effect. This is due to the duty employers have to the public to take reasonable steps to prevent harm through their employees. Such a tort must occur under the scope of employment. If the tortfeasor is acting with intent to further their employer’s business– even indirectly, unwisely, or in a forbidden manner the employer is still liable.
Joint liability often occurs under a joint enterprise. Both parties are liable under the end they are pursuing. In such a relationship, both partners and all those participating in temporary joint enterprise are vicariously liable for torts committed by each party when acting in the furtherance of the partnership. A disclaimer is a written or verbal instruction which attempts to limit the liability of the party providing the service or products. These can include the disclaimer of merchantability. Under the UCC, the merchant can disclaim or limit the available redress to the buyer.
The seller may make a written disclaimer of warranty. This must be in large, conspicuous writing clearly visible and must specifically mention the word merchantability. When mentioning as-is, it does not need to include ‘merchantability.’ Disclaimers and waivers are not a be all end all for the manufactures. These may just serve to provide instruction but does not actually intend to limit the risk of injury. If such harm is particularly foreseeable or the product inherently dangerous, the court will likely not uphold such a disclaimer or waiver to deny recovery to the wronged party. Parties will assume varying levels of culpability. The injury itself is not necessarily enough to impose liability on the seller.
The Plaintiff must prove that:
- The product was defective, e.g. the breach
- The item was manufactured or sold by the Defendant, e.g. the duty. The duty is to put a safe product on the market
- The defect was the cause of the injuries factual and proximate, e.g. the causation
The Plaintiff must have been injured while using the product in its intended manner. The Plaintiff must not have altered the product in a significant way.
Defamation is any statement that subjects a party to distrust, hatred, or ridicule. This can be disseminated through written, printed, online, spoken, or broadcast manner. This tort causes harm to the Plaintiff’s reputation due to such action. Libel is the publication of defamatory material in written form. This is often communicated through writing or in photos, statue, or art in the physical form. The Plaintiff does not need to prove special harm. In some exceptions the Plaintiff must prove special damages if “libel per quod” extrinsic facts are required to establish defamatory meaning. If libel falls into one of four categories of slander per se Plaintiff does not need to prove special damages Slander is the publication of defamatory material through spoken words, gestures, or other communications not including libel. The Plaintiff must show that they suffered special or pecuniary harm. There is an exception of slander per se. These can include statements relating to disease, sexual indiscretions, or unscrupulous tactics and do not require proving special damages.
Defamation must include a defamatory statement that is a false and defamatory statement of fact concerning the other party. This can include statements seen or heard by other than the Plaintiff. The Defendants publication must have either been intentional or negligence. The repetition of a defamation is considered publication. A single publication can include an entire edition of a book or periodical. This is due to the fact that Publishers are held liable because they have the ability to control what is published.
Secondary publishers, distributors, or vendors are not liable because they do not have knowledge of such defamation in publication. There must also be fault on the Defendant’s party. This could include negligence when speaking about a private individual or malice against a public figure. In some case, special harm of a pecuniary nature, such as slander, or the action-ability of the statement despite the non-existence of such special harm.
Common Law Defamation Rules
Common law interpretations of slander and defamation have changed over the years. In many cases, this has changed, as can be seen below. The right to privacy is the reasonable expectation of a person. If an offending party violates such common decency or invades privacy, they are often found liable. This can include the disclosure of private information, aggressive paparazzi, or intrusion on seclusion. A requirement of fault is when a party made an error when publishing the information. This standard various from the class of person discussed. Private parties are given more protection than those in the public eye.
Burden of Proof in a Defamation Case
In these cases, the Plaintiff must prove that the Defendant made their statement with actual malice. The Plaintiff must prove that the Defendant knew such an action was false or recklessly disregarded whether it was true or false. The Plaintiff must show that the Defendant entertained serious doubts to the veracity of the statement. Public figures can challenge publication if there is malice, as seen in the NY Times v. Sullivan. With private figures, the Plaintiff does not need to prove that the Defendant knew the statement was false or recklessly disregarded whether it was true or false.
Private figures can recover for actual injury, impairment of reputation and public standing, personal humiliation, mental anguish, and suffering. This can include the content, form, and context of communication. The Plaintiff must either prove reckless disregard or negligence.
- Matters of public interest are generally within the context of what the public would want to know about. Courts have used wide latitude to include information on a public figure.
- Absolute privilege allows the Defendant to avoid liability even in case when they knew that statements were false or done with malice. This is due to the idea that people have the right to express themselves in the context of meeting an such meeting’s subject. In judicial proceedings, judges, lawyers, parties and witnesses are all privileged in what they say during course of judicial proceedings. This also occurs in legislative proceedings, for government officials, federal and high state officials, and between spouses.
- Qualified Privilege is conditional depending on the subject matter or timing. These could include protecting communications in connection to the speaker’s moral, legal, or social obligations requiring correct or reasonable belief. The protection of the Defendant’s interests is conditionally privileged if it is sufficiently important and defamation is directly related to these interests.
If the Defendant believed their property was stolen by the Plaintiff, they may tell the police their belief and be protected from slander even if wrong. Similar privilege is given in the interest of others. This could work if the Defendant if they act for the protection of the recipient of their statement or another third party. A boss has the right to give information about former employees to a prospective employer. Another qualified privilege can include public interest. In this case, a private citizen can report a reasonable but mistaken accusation to the police.
Some defenses against defamation cases can include the veracity of such statements, privileges, and disproving actual malice. Actual malice during the time of the statement may be required to be proven. The Plaintiff may prove that the Defendant made such a statement by demonstrating that they knew the statement was false or in reckless disregard of being true or false. In most cases, the Plaintiff must prove that the Defendant had serious doubts over its truth.
A Matter of Proof
The Plaintiff must prove that there was a publication that harmed their reputation in a substantial way within the community. This could be done with circumstantial evidence or a physical representation of the statement in media. Public figures have a harder time proving defamation because of the central tenet that public figures and officials should be open to criticism. The media and public generally has a greater latitude regarding defamation, considering that such a figure placed themselves into the public sphere.
- A public official is a government official or someone with significant authority in managerial aspects of legislation.
- A public figure can be a celebrity, person of public concern, or a private figure that has interjected themselves into a public controversy willingly. Defendants can often argue that the statement they made was true. This is an absolute defense. The Defendant could also argue that the statements made were pursuant to an absolute qualification. The libel Defendant can also asset that their statement was made under a limited qualified privilege. Common law defenses can include truth or the involuntary nature of the statement at the time it was made due to duress or coercion. Others can include that the statement was pure opinion. The Constitution offers protection for defamatory statements in the First Amendments. Many defamation laws have little consequences due to the wide protections made by the First Amendment. Some Defendants counter-sue with SLAPP suits, adding in further protection.
Defamation per se includes statements that do not require proof of special damages. These can be classified into four categories, including:
- Crime statements conveying morally culpable criminal behavior to the Plaintiff
- Loathsome disease statements regarding the Plaintiff having a venereal or similar communicable disease
- An allegation that adversely reflects on the Plaintiff’s ability to conduct their business, trade, profession, or office
- Statements regarding sexual misconduct, often including a lack of chastity
- Libel per se exists including if a publication exposes a person to distrust, hatred, contempt, ridicule, or other similar harm. The Plaintiff does not need to prove actual damages and presume such a statement will cause harm to the reputation of an average person.
A libel-proof plaintiff is a person with such a terrible reputation that cannot be further damaged. Some courts have declared parties as libel-proof with the maximum of nominal judgments for damage.
Defamatory Statements to Third Parties
Publication is the communication of a statement to a third party. It can be seen by a person other than the Plaintiff. Such a publication must either have been intentional or negligent. The repetition of such defamation is considered publication. There is a single publication rule in which the entire book edition or periodical is considered a single publication. Secondary distributors are not held liable for their actions.
Reducing Liability for Defamation
Many people can reduce their liability for defamation by ensuring that their statements are wholly true, especially when made in the public. If their statements are commentary, they should be designated as opinions. Due diligence occurs when a party expends a reasonable amount of effort to ensure that the information they present is true. This does not have to be a difficult standard, but ensures a good faith effort to ensure that such information is true and not reckless.
What is a Contract?
A contract is an agreement between several parties that agree to take an action or avoid an action in exchange for something of value. Such contracts are generally written using formal or informal terms or entirely verbal.
- A breach of contract is the violation of a contractual obligation by failing to uphold a promise, repudiating a promise, or interfering with another party’s performance. A breach may be one by non-performance, or by repudiation, or by both. Every breach gives rise to a claim for damages, and may give rise to other remedies. Even if the injured party sustains no pecuniary loss or is unable to show such loss with sufficient certainty, he has at least a claim for nominal damages. If a court chooses to ignore a trifling departure, there is no breach and no claim arises.
- A breach of confidence is a common law tort. This often involves one party conveying information provided in confidence to unprivileged parties. This often requires such information being a detriment to the confiding party.
- A breach of promise is an older tort that is no longer used in the modern legal system. It was used with engagement agreements between men and women. This was a quasi-legal contract– if one party abrogated, it could have been a constructive breach.
- Fraud is defined as an “intentional perversion of truth or a false misrepresentation of a matter of fact,” inducing another party to “part with some valuable thing belonging to him or to surrender a legal right.”
Fraud is often making a material misstatement that another party relies on to their detriment. In order to prove fraud the element of scienter must be proven. This means that the person had knowledge of such a falsity when they made the statement. Fraud may be actionable both criminally and civilly.
- Duress is a potential defense in the case of breach of contract. This could be used to invalidate the contract from the beginning due to the unlawful threat of coercion used to induce another to act or not act in a manner they otherwise would.
- Impossibility of performance is when a party is entirely incapable of performing their part of the contract due to forces outside of their control This can mitigate the damages in a breach or enable a party to exit from a contract.
- Commercial frustration is an unforeseen, uncontrollable event that occurs after a contract is entered into between the parties and makes it impossible for one of the parties to fulfill their duties of the contract. This is similar to impossibility of performance except in the condition of a business context.
Volenti Non Fit Injuria
This phrase is from the Latin, which basically means “a willing person it is not wrong, if or a person that is not wronged by what they consent.” The idea is that a person that knowingly and voluntarily risked danger cannot recover for any resulting injury.
- Voluntary assumption of risk is a defense in tort law. This means that the Plaintiff assumed the risk based on showing that they knew the danger or understood the risk and encountered it voluntarily. If found in court, then this may reduce the Plaintiff’s damages or result in dismissal.
- Contributory negligence is the concept in which a negligent Plaintiff whose negligence contributes proximately to their own injuries is totally barred from recovery. This is an all or nothing meaning that shows that if the Plaintiff is even one percent negligent they cannot recover anything. This often means that the Plaintiff will go from court to court depending on their laws.
- Some use the Last Clear Chance limit that if the Defendant had an opportunity just before the accident to prevent the harm and the Plaintiff did not, then the Defendant becomes liable.
- A civil action is often referred to as suing another party. This is going before a court of law and seeking remedy or damages from another party.
- Settling out of court means that the Plaintiff has agreed to accept a sum of money or action in exchange for an agreement to dismiss the claim. These could happen at the courthouse steps or during a trial.
- A small claims court is a court that handles matters in which the sums involved are under $5,000. These are often slower and less formal than unlimited jurisdiction courts. Individuals often represent themselves without an attorney.
Who Begins a Civil Action?
Civil actions can be started by any resident of the state they reside in. Paying taxes in any state can allow them to avail themselves of any benefits that a court may provide. If the party is wronged outside of the state, it may be more difficult to file a civil action.
What if a Civil Action is Filed Against Me?
If a civil action is started against you, there is a determination regarding seeking counsel. If the other party seeks a small claim, it may be easier to do it yourself. If it is a large claim or will require complex legal matters, it is usually advisable to seek counsel. When defending oneself in court, there is a responsibility to bring all evidence to the court and respond to all matters yourself. You also bear the burden of bringing witnesses, discovering evidence, and developing legal arguments.
When Sued for Nuisance
In such a case, you should argue that whatever harm has been alleged was not substantial or did not produce a long term effect. Next attempt to prove that such activity did not create an unreasonable interference with the right to enjoy or use the property. Lastly, you could attempt to prove that the party intentionally became involved with the nuisance.
When Sued for Defamation
As seen above, one should prove that the statement was true. This is an absolute defense. If not, prove that there was no absolute malice when involving a public figure or official. Lastly, you can try to prove any special privileges, both qualified and absolute for justification.
How is Compensation Decided?
If a Plaintiff wins compensation, the actual amount can be calculated by many factors. These can include the damages to compensate for a previous wrong, or compensatory. This can occur if harm has already occurred but cannot recover for continuing damages and must bring successive actions for subsequent harm. In other cases, the Plaintiff can be awarded damages for the diminished value of property. The damages are calculated by using the depreciation of property and diminished value of the use of property. Courts may ask that if such a nuisance does not go away, how much of the value has been permanently diminished. Courts may award damages for medical bills, pain and suffering, or punitive damages that prevent such conduct from occurring.
Decisions can be appealed if a party is unsatisfied with a lower court’s decision. This may be a costly process that does not get the desired results. Such parties should consider why they lost in the trial court rather than simply reach for an appeal. It could be a costly and time consuming process.
Responsibility for Children’s Actions
Children under the age of majority are effectively the property of their parents. Their actions are imputed to you if repayment is demanded. In some jurisdictions, you must have constructive knowledge of their propensity of performing such a tort before you are held strictly liable for their actions.
Defending Against Civil Actions
You can defend yourself by using a disclaimer when selling an item or service. You can properly notify other parties about potential risks and issues to limit liability.
Damages in Civil Cases
- Nominal damages are often small amounts that a court or jury can award to a party that they believe does not deserve large compensation. This can be done because on party exercised bad faith or that no real harm occurred.
- Punitive damages are referred to as exemplary damages awarded by the discretion of the court for particularly egregious activity. These damages are awarded to discourage further conduct by the violating party. This could be as the result of fraud or particularly terrible negligence.
- Compensatory damages can be computed based on many factors, including to compensate for a previous wrong. These can include if a harm has already occurred but not for continuing harm.
- Penal damages are excessive contracted for damages in a contract. This could be seen as an aggressive liquidated damages clause.
These are often seen as ” terrorem” (Read More here: http://dictionary.law.com/Default.aspx?selected=1006),and not enforced by the courts. These often seek redress and build in punitive damages to dis-incentivize http://www.oxfordlearnersdictionaries.com/us/definition/english/disincentivize breach. These place in penalties far more than the other party would suffer from a breach.
- General damages are traditionally not calculated with certainty. These can include more abstract ideas such as pain and suffering, distress, and non-economic losses. These seek recovery for a non-specialized loss and will often seek recovery to the extent the court will allow.
- Special damages are damages that can be objectively measured. These can include losses out of pocket, medical bills, lost wages, and other similar issues.
- Consequential damages are one type of damages that can be awarded when one party believes that the other side of obligations were not entirely fulfilled. Also referred to as indirect or special damages, these can include the loss of profit or revenue and may be recovered if determined that such damages were reasonably foreseeable or “within the contemplation of the parties” at the time of the contract.
- Liquidated damages are often created by contract. These accelerate the amount of damages that a party will foresee-ably incur and provide that the breaching party will pay that amount in the event of breach.
Do Most Cases Go to Trial to Recover Damages?
Only about 9% of cases actually make it to the courtroom. Most are settled in the pre-litigation phases. Going to court is expensive and often only happens between entrenched opponents. It often works for both parties to settle beforehand.
Pain and Suffering
Pain and suffering can include damages for physical and emotional distress. These can only be used for the past– or can be used to show that such past action can be actuarially proven to shorten life expectancy. Plaintiffs can also be compensated for loss of affection or emotion and reduction in their enjoyment of life. They cannot be compensated if unconscious or not aware of such loss. They must be conscious for a significant time before death in order to recover.
- Subrogation is the substitution of one party to another for whose debt the party pays– entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor. In an example, a surety who has paid a debt is, by subrogation, entitled to any security for the debt held by the creditor and the benefit of any judgment the creditor has against the debtor, and may proceed against the debtor as the creditor would.
A preponderance of the evidence is the standard of proof used in most civil cases. This asks the judge or jury to find it more likely than not that the Plaintiff’s assertions are true and that it is more than 50% likely that they are entitled to damages.
Prior Injuries and Value of Claims
Prior injuries or pre-existing ailments may affect the level of recovery awarded. These ailments may offset the amount awarded compared to a fully healthy person. If a person suffered their second broken arm due to a crash, it is less likely they will be awarded full damages.
Included in a Bodily Injury Claim Settlement
As seen in such claims, these could include common features such as medical bills, future damages, pain and suffering, loss of wages, loss of consortium and loss of enjoyment.
Is there a Minimum Settlement Amount?
There is a long and short answer to this one. Usually the answer is no, but often precedent and practicality may push the figure down. In some cases, there may be a need to release a person from liability. If they had no personal responsibility for your injury, you may wish to ask for a settlement of nothing in exchange for an agreement for them not to return suit for malicious prosecution. However, this is not as common as seeking damages for others’ actions.
If another party caused the incident that resulted in injury, there is no real cap on how much to seek. The number can be as low as the exact figures on a medical bill or when factoring in long term care, loss of affection, and pain and suffering be in the millions or billions of dollars. All of this would be supported by the evidence uncovered, insurance coverage, and the ability for the defendant to pay such an award.
Would Medical Costs be Included?
Yes– this is the foundation of your case. In most cases, unless there is a demonstrable injury there is no basis for such a legal claim. If you’ve sued for damages following personal injury, such medical bills are always included in such a settlement.
How Much Will a Contingency Fee Be?
This depends on which attorney you decide to hire, but can run across the board. Most attorneys will ask for at least a third of whatever you recover. This rate will often increase depending on the workload the case puts on the attorney. If there is a matter of challenging an insurance company and getting a payout, the rate may be a simple third. If there is the need for increased paperwork and legwork, the fee then may hit around 40%.
If the case winds up going to trial and not simply litigated, many personal injury attorneys will ask for at least 45%. Such a trial will eat up much of the attorney’s time and often take weeks away from other cases. Many times the percentage is a factor of quality. An attorney whose ad you see on the side of a bus may ask for as little as 20%– but you get what you pay for. Would you rather have 80% of $10,000 or 55% of $1 million. When considering attorneys, consider that most lawyers will ask for appropriate compensation for their skill-set.
Will the Case be Settled without Me?
No attorney can settle a case without their client’s case without their consent. It is illegal to do so– and if you have a lawyer do so, make sure to contact the California Attorney General. An attorney should always give you a copy of your settlement check upon request. If you have more questions, feel free to contact Michael Ehline at Ehline Law Firm PC and he will try and help you navigate these questions.