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