WHAT WE FIGHT FOR

Personal injury law is based in torts. Broadly defined, a tort is a harmful act or failure to act for which the law provides a remedy. There are many different kinds of torts. Physically injuring someone is a tort; so is damaging a person's property or character, or wrongly denying someone his or her liberty. The basic principle of tort law is that injured persons should be compensated by those responsible for their injuries. Thus, a victim of a tort has the right to sue the tortfeasor (the person committing the tort) for damages.

Though often confused, torts and crimes are separate in the law. A tort is a civil wrong against an individual that exposes the tortfeasor to liability. A crime is a wrong against society or the state and is punishable by incarceration or a fine. Some acts, however, can be both a tort and a crime. For example, someone who uses force to cause bodily injury commits a tort known as battery and is liability to the victim for damages. Battery also is a misdemeanor under California law, punishable by up to six months in prison and/or a fine of up to $2000. Thus, a person could be prosecuted and convicted of the crime of battery, and also face a civil lawsuit brought by the victim.

• Personal Injury Law: General
  • Theories of Tort Liability
    • Intentional Torts
    • Negligence
      • Duty and Breach
      • Proximate Cause
      • Damages
      • Comparative Negligence
    • Strict Liability
      • Proximate Cause
      • Damages
  • Issues in Tort Cases Generally
    • Burden of Proof
    • Affirmative Defenses
    • Vicarious Liability
    • Joint and Several Liability
    • Wrongful Death Lawsuits
    • Government Immunity
    • Statute of Limitations
  • Products Liability Lawsuits Based on Breach of Warranty

THEORIES OF TORT LIABILITY

The law generally recognizes three types of torts: intentional torts, negligent torts, and torts based on strict liability. Each of these torts is unique and has its own requirements for recovery, but may overlap in application. For example, if a person is injured by a product, he or she may sue the manufacturer under a theory of negligence or strict liability. And, depending on the particular situation, he or she also may be able to sue the assembler, wholesaler, retailer, or anyone else involved in the product's production and distribution. Even used car dealers who sell rebuilt or reconditioned automobiles can be products liability defendants. (For purposes of this chapter, the term "manufacturer" is used to describe all potential defendants.) Which theory or theories a plaintiff uses depends on the facts of his or her particular case. Defendants also may be liable for personal injuries resulting from breach of warranty.

INTENTIONAL TORTS

As the name implies, an intentional tort is a wrong based on an intentional action, as contrasted with carelessness. Battery is an example of an intention tort--the defendant intended to hit the plaintiff. Other examples of intentional torts include assault (threatening someone with physical violence), false imprisonment, invasion of privacy, and trespass. Defamation also is usually considered an intentional tort, because the defendant intentionally prints or speaks the defamatory statement.

To proceed in a lawsuit for damages caused by an intentional tort, a plaintiff must show that the defendant acted willfully. To act willfully means to deliberately, intentionally, or wantonly perform an act with actual or constructive knowledge that injury is a likely result, coupled with conscious failure to act to avoid the injury. The defendant's willful act must be the cause of the plaintiff's injury. In some cases, however, there are defenses to intentional torts that excuse the defendant from liability. For example, someone may commit battery in self-defense. Similarly, the truth of a statement is a complete defense to a defamation action.

A plaintiff suing for an intentional tort is not always required to show out-of-pocket damages in order to proceed with a lawsuit. In the case of defamation, for example, the resulting shame, loss of reputation, mortification, and hurt feelings are considered sufficient damages to justify a lawsuit. Plaintiffs who suffer quantifiable injuries are entitled to compensatory damages, that is, damages that compensate them for injuries to person or property. They also may receive punitive damages (damages aimed at punishing the defendant and deterring future similar action) if the tort was particularly malicious.

NEGLIGENCE

Negligence has to do with how careful a person was when he or she caused an injury, and how careful, according to the law, he or she should have been. There are four requirements to proving negligence. A plaintiff must show (1) the defendant had a duty to conform to a certain standard of conduct to protect the plaintiff from unreasonable risk, (2) the defendant breached that duty, (3) the defendant's breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages.

Duty and Breach

In general, the law imposes a duty on every person to behave as carefully as a reasonable, ordinary, prudent person would behave in a similar situation. This is known as the reasonable person standard. A defendant's actions must fall short of the reasonable person standard in order for the defendant to be found negligent in a lawsuit. If a court determines that the defendant acted reasonably, he or she is not negligent and not liable for damages even though his or her actions may have caused injury. Children typically are held to a lower standard than adults; professionals, such as doctors, are held to a higher standard. Under California law, doctors and other health professionals must act in a manner that is acceptable and appropriate for reasonably prudent health care providers in similar circumstances. A plaintiff suing a manufacturer for negligence must show that the product that caused the injury was defective because of the manufacturer's carelessness in making the product.

Proximate Cause

Proximate cause means legal cause for purposes of assigning liability. Sometimes a defendant's action may be too remotely related to the plaintiff's injury to be considered a proximate cause. For example, in a famous 1928 New York case, a railroad employee helped a passenger onto a moving train by pushing him from behind. In the process, a package the passenger was carrying, wrapped in newspaper and containing fireworks, dislodged, fell, and exploded. The force of the explosion knocked down some scales at the far end of the train platform, a considerable distance away, injuring the plaintiff. The plaintiff sued the railroad company for damages. The court ruled that because the railroad employee could not foresee the complicated and unlikely sequence of events that led to the plaintiff's injury, the employee's action was not the proximate cause of the plaintiff's injury. In other words, although the railroad employee's action "caused" the plaintiff's injury in a technical sense, the line of causation was too remote to hold the railroad company liable.

Damages

Damages must be proven in a negligence lawsuit; otherwise, the lawsuit will be dismissed. That is, even if the plaintiff proves negligence, he or she must have suffered some injury for which compensation is requested, in order to have a complete lawsuit. A plaintiff who successfully proves the defendant's negligence is entitled to compensatory (actual) damages. In addition, if the plaintiff proves the defendant acted in a grossly negligent manner, the plaintiff may, in some cases, be able to recover punitive damages.

Comparative Negligence

In some personal injury cases, it turns out the plaintiff was partly at fault in causing his or her injury. In 1975, California adopted the doctrine of comparative negligence, which allows a jury to apportion liability in a lawsuit. Comparative negligence permits a jury to compare the negligence of the plaintiff with the negligence of the defendant and decide damages accordingly. If the jury finds the plaintiff ten percent negligent in a car accident, and the defendant 90 percent negligent, the defendant has to pay only 90 percent of the damage award. Likewise, if the jury finds the plaintiff 90 percent negligent in the accident, and the defendant ten percent negligent, the defendant has to pay only ten percent of any damage award.

STRICT LIABILITY

Under the theory of strict liability, the plaintiff contends that the defendant is liable regardless of fault. The issue of how careful a defendant was or should have been is irrelevant. Even if a defendant's actions were entirely reasonable, strict liability imposes liability on the defendant if he or she caused the plaintiff's injury.
Historically, strict liability was only used in cases in which a wild animal or an ultrahazardous activity caused an injury. For example, people who demolished buildings, dusted crops, or manufactured explosives were automatically liable for injuries caused by their activities. In 1963, strict liability was first applied in a defective product context. Since then, it has become the principal theory of recovery in products liability cases. One reason for applying strict liability to defective product cases is that manufacturers (often large corporations) are in a better position to incur the costs of the injuries caused by their products than the individuals who are injured. Moreover, by requiring manufacturers to pay damages for injuries caused by their products, regardless of fault, the law encourages manufacturers to produce safe and dependable products.
The principal purpose of products liability litigation is to compensate persons injured by defective products. But products liability litigation also serves an important public policy interest. It serves as a means for society to collectively decide how safe manufacturers ought to make products that consumers use every day. The application of strict liability in products liability cases demonstrates society's changing attitudes toward product-related injury.

Defective Products

Manufacturers are strictly liable only for defective products that cause injuries. Therefore, the threshold requirement is to show the product is defective. Exactly what constitutes a defect remains imprecise, but courts agree that there are three separate types of defects: manufacturing defects, design defects, and defects in warning.

A manufacturing defect occurs when a product is not manufactured according to its design: a screw is forgotten, or a protective cover is improperly fastened. If a product has a design defect, the design itself is dangerous. Manufacturers have a duty to safely design products for their intended use as well as for any foreseeable misuse. For example, a kitchen cleaning agent must be designed for safe use in cleaning countertops and stovetops; also, because it is foreseeable that a child might drink the product, the manufacturer may be required to design the product's container with a child-proof cap.

A defect in warning concerns a manufacturer's failure to adequately instruct or warn a consumer about a product's dangers. According to the law, a consumer has the right to be properly apprised of any risk in using the product. This duty to warn extends to products already sold. If a manufacturer discovers a product's potential hazards after the product has been introduced into the market, the manufacturer must find a way for the warning to reach even early consumers. The manufacturer even may have to recall the product.

Product dangers that are "open and obvious" do not require warnings. For example, a kitchen knife does not need to have a warning label that the blade is sharp and can cause injury. What constitutes "open and obvious" is not strictly defined, however. Something that is obvious to one person may be unforeseeable to another. Consequently, some manufacturers will warn consumers about even remote risks so as to defend against potential lawsuits.

Proximate Cause

If a plaintiff is successful, he or she can recover compensatory damages for personal injury or injury to property. A plaintiff also can receive punitive damages if the product was especially injurious, as a way to punish the defendant for making and selling the product. It is important to note that the doctrine of comparative negligence applies to products liability cases. If a plaintiff fails to exercise ordinary care in using the product that caused his or her injury, the amount of recovery can be reduced.

Damages

Federal perjury laws penalize anyone who willfully or knowingly makes false statements under oath. The sworn statements may be written or oral and need not be made in court; a person may perjure himself or herself in deposition or written testimony. A related law against subornation of perjury makes it illegal for anyone to procure another person to commit perjury.

ISSUES IN TORT CASES GENERALLY

Burden of Proof

As discussed in the Process of a Lawsuit Chapter, a plaintiff in a civil lawsuit has to prove his or her case "by a preponderance of the evidence." In other words, the plaintiff must show that a majority of the evidence establishes that the defendant is liable. This is different from the burden of proof in a criminal case. In a criminal case, the prosecution must prove the defendant's guilt "beyond a reasonable doubt"--a much higher standard. When a tort is also a crime, the results from the civil and criminal cases do not have to be consistent; in fact, the outcomes frequently are contradictory. Because the criminal burden of proof is higher, a defendant may be acquitted of committing a crime, but liable in a tort action.

Affirmative Defenses

A defendant who asserts an affirmative defense does not deny the evidence against him or her, but argues that there is some other reason that he or she should not be liable. In the tort context, an example of an affirmative defense is comparative negligence. Assumption of risk also is an affirmative defense. The doctrine of assumption of risk states that, because the plaintiff was aware of the potential for injury and proceeded nonetheless, the defendant's liability should be reduced, if not erased altogether. Because California follows the doctrine of pure comparative negligence, which allows a plaintiff to recover damages even if his or her share of fault is greater than 50 percent, the defense of assumption of risk has very limited application.

Vicarious Liability

Vicarious liability is a legal principle under which one person is held liable for the tortious act of another, even though the first person was not involved in the act, did nothing to encourage the act, and even may have attempted to prevent it.

The most common form of vicarious liability occurs in the area of employment. An employer is liable for any tortious act committed by an employee acting within the scope of employment. Exactly what actions are "within the scope of employment" is a tricky issue. If an employee is driving his or her own automobile to work and hits a pedestrian, is that within the scope of employment? Probably not. What if the employee is driving a company car he or she routinely takes home? This is a better case for establishing vicarious liability. What if a telephone repairperson making a house call during working hours causes an accident while driving a company van? A court will almost certainly find the employee to be acting within the scope of employment.

Another application of vicarious liability is to bar owners or others who provide alcohol to a person who then commits a tort. Under California law, anyone who sells, furnishes, or gives alcohol (other than in a social setting) to an obviously intoxicated minor may be liable for damages caused by that minor as a result of intoxication.

Joint and Several Liability

In cases in which two or more defendants were found responsible for a plaintiff's injury, the law traditionally made the defendants jointly and severally liable for damages. In other words, a plaintiff had the right to collect the damage award from any defendant individually or from the defendants as a whole, depending on the plaintiff's preference.

The California legislature decided that the doctrine of joint and several liability resulted in inequity and injustice to defendants who bore only slight responsibility for an injury but had to pay the entire damage award. (These defendants sometimes are referred to as having "deep pockets.") Thus, liability for noneconomic damages is several only in California, and not joint. That is, while defendants may be jointly and severally liable for economic damages, each defendant is only liable for the amount of noneconomic damages directly in proportion to that defendant's percentage of fault. Noneconomic damages compensate for subjective, non-monetary losses such as pain, suffering, inconvenience, emotional distress, loss of consortium, and injury to reputation.

Wrongful Death Lawsuits

If a person dies from a defendant's tortious action, the decedent's survivors or the decedent's personal representative may bring a lawsuit for wrongful death. Survivors include the decedent's spouse, children, and issue of deceased children, or, if none, whoever would be entitled to the decedent's property by intestate succession (as if the decedent had died without a will). In a wrongful death action, damages may be awarded that are just under all the circumstances of the case. However, damages in a wrongful death suit do not include penalties or punitive damages to which the decedent may have been entitled had he or she lived.

Statute of Limitations

There are limits on the time period in which a lawsuit can be filed. For example, a lawsuit based on negligence must be filed within one year from the time the cause of action arose. If a person fails to file a lawsuit within the time period prescribed by the statute of limitations, the person loses the right to file that lawsuit.

PRODUCTS LIABILITY LAWSUITS BASED ON BREACH OF WARRANTY

Whenever a person purchases a product, a contract has been formed. Sometimes that contract will include express warranties; it will almost always include implied warranties. An express warranty is an express written or oral affirmation or promise about a product. An implied warranty is a warranty that is implied by California law when goods are sold. Under California's law of implied warranty, all goods (moveable, tangible things) that are sold must be generally fit for their intended purpose. If a product is not generally fit for its intended purpose, or if it does not meet the terms of its express warranty, a person injured by the product may sue the manufacturer for breach of warranty.

Unlike negligence lawsuits, breach of warranty lawsuits do not involve proof of fault. Instead, a plaintiff must show evidence of a product's failure to meet the terms of the warranty. This evidence may be similar to "defective product" evidence. One characteristic unique to breach of warranty lawsuits is the possibility of recovery for economic loss. Unlike strict liability and negligence products liability lawsuits, in which plaintiffs are limited to recovery of compensatory and punitive damages related to the injury, a plaintiff in a breach of warrant lawsuit may recover the costs of repairing or replacing the defective product, as well as compensatory or punitive damages.

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