Free ABA Guide to Personal Injury

Personal Injury Claims
Automobile Accidents
Injuries at Your Home and on Your Property
Injuries on Others’ Property
Negligent Infliction of Emotional Distress
Medical Malpractice
Strict Liability
Product Liability
Intentional Wrongs
Where to Go for More Information


PERSONAL INJURY LAW, also known as tort law, is designed to protect you if you or
your property is injured or harmed because of someone else’s act or failure to act. In a
successful tort action based on one of three theories -negligence, strict liability or
intentional misconduct–the one who caused the injury or harm compensates the one who
suffered the losses.
Automobile accidents, the area in which the majority of personal injury actions
arise, provide a good example of how the tort system works. You have a negligence claim
in a “fault” state if you are injured by a driver who failed to exercise reasonable care,
because drivers have a duty to exercise reasonable care anytime they are on the road.
When they breach that duty and your injury results, personal injury law says you can
recoup your losses. (Note, though, that the system may be very different in states that have
passed no-fault laws.)
Negligence reaches far beyond claims stemming from car accidents. It is the basis
for liability in the majority of personal injury lawsuits, including medical malpractice.
An important and growing area of tort law is strict liability, which holds designers
and manufacturers strictly liable for injuries from defective products. In these cases, the
injured person does not have to establish negligence of the manufacturer. Rather, you need
to show that the product was designed or manufactured in a manner that made it
unreasonably dangerous when used as intended. Strict liability standards also apply in
other areas of personal injury, such as workplace accidents. (Workplace injuries are
further explained later in this chapter, as well as in the chapter on “Law and the
Finally, although they are not as frequently brought, claims for intentional acts that
invade a legally protected interest of yours may be the basis for holding someone liable to
you in tort. If someone hits you, for example, even as a practical joke, you may be able to
win a suit for battery. Or if a store detective wrongly detains you for shoplifting, you may
be able to win a suit for false imprisonment. While perpetrators of some of the intentional
torts — assault and battery, for example — can be held criminally liable for their actions, a
tort case is a civil proceeding in court brought by an individual or entity and remains
totally separate from any criminal charges brought by the government.
Every tort claim, regardless of its basis, whether intentional, negligence, or strict
liability, has two basic issues — liability and damages. Was the defendant liable for the
damages you sustained, and, if so, what is the nature and extent of your damages? If you
can prove liability and damages, our system of justice will award you compensation for
your loss.
Q. How do I know if I have a personal injury case?
A. First and foremost you must have suffered an injury to your person or property.
Second, was your injury the result of someone else’s fault? It is not always necessary to
have a physical injury to bring a personal injury lawsuit, however. Suits may be based on
a variety of nonphysical losses and harms. In the intentional tort of assault, for example,
you do not need to show that a person’s action caused you actual physical harm but only
that it caused an expectation that some harm would come to you. (Assault is described in
more detail later in this chapter.) You also may have an action if someone
has attacked your reputation, invaded your privacy or negligently or intentionally inflicted
emotional distress upon you.
Q. If I have suffered a personal injury and think I have a case, how do I go
about finding a personal injury lawyer?
A. Contact a local bar association for referrals to lawyers who handle personal
injury cases, talk with lawyers you know, or ask your friends about lawyers they know or
have used. You can find the telephone number of the local bar association in your
telephone directory. Most lawyers offer free consultations, so you are able to meet with as
many as you like. Choose a lawyer you feel most confident about–and comfortable with–
to handle your case.
Q. Should I bring any documents with me to the consultation?
A. Yes, you should supply any documents that might be potentially relevant to
your case. Police reports, for example, contain eyewitness accounts and details about
conditions surrounding auto accidents, fires, assaults and the like. Copies of medical
reports from doctors and hospitals will describe your injuries. Information about the
insurer of the person who caused the injury, is extremely helpful, as are any photographs
you have of the accident or of your injury. The more information you are able to give your
lawyer, the easier it will be for him or her to determine if your claim will be successful. If
you haven’t collected any documents at the time of your first meeting, don’t worry. Your
lawyer will be able to obtain them as well.
Q. What kind of legal fees should I expect in a personal injury case?
A. Personal injury lawyers generally charge their clients on a contingent fee basis.
That means you pay your lawyer only if you win. Your lawyer is paid a percentage of the
total amount recovered. You’ll sign what is called a retainer agreement with the lawyer
you choose to represent you, clarifying all fees and charges. Remember that even if you
lose the case, you are likely to have to pay the expenses of investigating and litigating you
case, such as court filing fees and payments to investigators, court reporters, and medical
experts, as well as the expenses of securing medical records and reports.
Q. What can I expect after the first consultation?
A. If a lawyer believes your claim is one you can recover on-and you have signed
the retainer-he or she will proceed with gathering information about your claim. In order
to arrive at a figure for damages, your lawyer will need to determine the extent of your
injuries, including pain and suffering, disability and disfigurement, the cost of medical
treatment, and lost wages. Your lawyer then provides your damages figure to the insurer
of the person who injured you. If the insurer considers it a valid claim, the case is likely to
be resolved early on and won’t have to be tried in court.
Q. If I am not happy with my lawyer, do I have to keep him or her?
A. No. You have a right to hire and fire any lawyer at any time.
Q. What does it mean to settle a case?
A. Settling a case means that you agree to accept money in return for dropping
your action against the person who injured you. You’ll actually sign a release absolving
the other side of any further liability. To help you decide whether to accept the settlement
offer, your lawyer will be able to provide a realistic assessment of whether a lawsuit based
on your claim will be successful. (Settlement also can take place at any point in a lawsuit
once it is filed, including before trial or even after a case has been tried but before a jury
reaches a verdict.) The decision to accept a settlement offer is yours, not the lawyer’s.
Q. What happens if I file a lawsuit?
A. You become the plaintiff in the case and the person who injured you becomes
the defendant. Lawyers for each side (and for the insurer) typically begin gathering facts
through exchange of documents, written questions (interrogatories) or depositions
(questions that are asked in person and answered under oath). This process is called
discovery. After discovery, many cases get settled before trial. Only a small percentage of
personal injury actions ever go to trial. Of the cases that do go to trial, most plaintiffs ask
for a jury to hear their case, but personal injury actions can be decided by judges as well.
That is known as a bench trial, as opposed to a jury trial.
Q. What if more than one person has caused my injury?
A. You must bring an action against every person who causes your injury. The
negligence of two drivers, for example, may have produced a collision in which you were
injured. According to traditional legal principles, each one could be held 100 percent
liable to you. In a more recent legal trend, however, many jurisdictions have abolished
such “joint and several” liability and each defendant, known legally as a “joint tortfeasor,”
becomes responsible for only that portion of the harm he or she caused. This is the rule of
comparative negligence, which exists in most states. (See the section titled “Automobile
Accidents” for more on comparative negligence.)
Q. What will I get if I win my case?
A. If you win, a judge or jury awards you money, known as damages, for your
injuries. That amount can include compensation for such expenses as medical bills and
lost wages, as well as compensation for future wage losses. It also can compensate you for
future lost wages and medical expenses and for physical pain and suffering. In addition,
you may receive damages for any physical disfigurement or disability that resulted from
your injury. The money is intended to restore your loss, is not considered as income, and
is not taxable as income by the federal government or the states. Note that an award of
damages does not necessarily translate into hard cash. You may have to take further legal
steps to actually collect the money. If a defendant against whom you have won a judgment
does not pay it, collection proceedings can be initiated. If the defendant owns property, for
example, you may be able to foreclose on it. Another option would be to garnish the
defendant’s wages. Your personal injury lawyer-or any lawyer you contact-would be able
to help you in this regard.
Q. Will the person who caused my injury get punished?
A. No. Punishment comes from criminal cases, not civil cases. Defendants in civil
actions for personal injury do not receive jail terms or stiff fines as punishment. Those are
criminal sentences and personal injury cases are civil disputes. But juries and courts can
award what the law calls punitive damages when the defendant’s intentional acts have
injured you. These awards are rather rare. Courts use them to punish people (and more
often large corporations) who have behaved recklessly or against the public’s interest.
Courts also hope that ordering the payment of punitive damages will discourage such
defendants from engaging in the same kind of harmful behavior in the future.
Q. Does a personal injury lawsuit have to be filed within a certain amount of
A. Every state has certain time limits, called “statutes of limitations,” that govern
the period during which you must file a personal injury lawsuit. In some states, for
example, you may have as little as one year to file a lawsuit from an automobile accident.
If you miss the statutory deadline for filing a case, your case is thrown out of court. (As
explained later in this chapter, limitations in medical malpractice cases are often
calculated differently.) You see, then, why it is important to talk with a lawyer as soon as
you receive or discover an injury.
Q. What if a person dies before bringing a personal injury lawsuit?
A. It depends on whether a person dies as a result of the injuries or from unrelated
causes. If a person injured in an accident subsequently dies because of those injuries, that
person’s heirs may recover money through a lawsuit. Every state has some law permitting
an action when someone causes the wrongful death of another. And if a person with a
claim dies from unrelated causes, the tort claim survives in most cases and may be brought
by the executor or personal representative of the deceased person’s estate.
Q. If someone causes an accident and I am hurt, on what basis will that
person be responsible (liable)?
A. A person is liable if he or she was negligent in causing the accident. Persons
who act negligently never set out (intend) to cause a result like an injury to another person.
Rather, their liability stems from careless or thoughtless conduct or a failure to act when a
reasonable person would have acted. Conduct becomes “negligent” when it falls below a
legally recognized standard of taking reasonable care under the circumstances to protect
others from harm.
Q. Negligence law seems so confusing. It uses words such as duty and
causation. What do they mean?
A. Negligence law can be complex and confusing even for people who are familiar
with it. To understand it better, forget all the legal jargon and go back to the car accident
example. A driver has a duty to use reasonable care to avoid injuring anyone he or she
meets on the road. If a driver fails to use reasonable care and as a result of that failure
injures you, then the driver is responsible (liable) to you for those injuries.
Q. Who determines whether a defendant has acted reasonably?
A. After being presented evidence by your lawyer, a judge or jury will decide what
an “ordinary” or “reasonable person” would have done in similar circumstances. In the
example of an automobile accident, a judge or jury is likely to find a driver negligent if his
or her conduct departed from what an ordinary reasonable person would have done in
similar circumstances. An example would be failing to stop at a stoplight or stop sign.
Q. I was in a car accident, but I think I can prove it was not completely my
fault. Will this make a difference with regard to what damages ultimately are
A. In the past the rule was that if you could prove the other driver contributed in
any way to the accident, he or she could be totally barred from recovering anything from
you. But now most states have rejected such harsh results and instead look at the
comparative fault of the drivers. If a jury finds that you were negligent and that your
negligence, proportionally, contributed 25 percent to cause the injury and that the
defendant was 75 percent at fault, the defendant would only be responsible for 75 percent
of your damages, or $75,000 if your damages totaled $100,000. In some states, a plaintiff
may recover even if he or she were more negligent than the defendant, that is, negligent in
the amount of 51 percent or more. (See the “Automobiles” chapter for more
on standards of negligence for car accidents.)
Q. A neighbor who rides with me to work was injured when I got into a car
accident. Do I have to pay her medical bills?
A. In many states today, no-fault automobile insurance would protect you–and
often passengers in your car–by compensating those injured up to a specified level,
regardless of who was at fault in the accident. About half of the states currently have nofault
insurance. Though there is a strong trend away from them, some states still have
automobile “guest statutes” that make drivers liable for injuries to nonpaying-or guest–
passengers only if the drivers were “grossly negligent” by failing to use even slight care in
their driving. In a guest statute state, if your neighbor can prove she was not a guest
passenger–that both of you agreed to share expenses–then she possibly could recover
from you under ordinary negligence principles. Cases have also held a driver liable for the
negligent operation of a car and for harm caused by known defects, but not for injuries
caused by defects in the vehicle about which the driver had no knowledge.
Q. I received an injury when the bus I ride to work was involved in an
accident. Is the bus company at fault?
A. It’s likely. “Common carriers”–bus lines, airlines and railroads–transport
people for a fee, owe their passengers “the highest degree of care” and are held to have a
special responsibility to their passengers. Common carriers must exercise extra caution in
protecting their riders and do everything they can to keep them safe. Whether you win
your case will depend on the circumstances of the accident. Did the driver pull out in front
of a car and have to slam on the brakes? What were the road conditions? A jury will have
to consider those factual circumstances to determine if your driver acted negligently. But
as an employee of a common carrier, the driver must provide you with a high degree of
care. (If the bus were hit by another car, the other driver may also be liable for your
Q. My car sustained damage when it hit a pothole on a city street. Can I
recover from the city?
A. Some cities have pothole ordinances, a form of immunity that releases them
from any liability for pothole accidents, except where they had prior notice. Whether you
can recover will depend on your city’s law controlling liability and its immunities against
Q. I was in a car accident during my pregnancy and my baby was born with a
deformity as a result of injuries from the accident. Does my child have any legal
A. Many states today will permit an action by a child for the consequences of such
prenatal (before birth) injuries. (In states with no-fault automobile insurance, your right to
sue often is limited.) Most courts also will allow a wrongful death action if the baby dies
from the injuries after birth.
Q. Someone recently stole my car and then wrecked it, injuring passengers in
another vehicle. Now one of those passengers is trying to sue me. Can they win? Am I
A. Probably not, since the thief did not have your permission to use the car,
although a lot would depend on the law in your state. Suppose you left your car unlocked
with the keys in it, making it easy for the thief to steal. This could be negligence. Even
then, most courts generally will not hold you liable if the thief later injures someone by
negligent driving. That is because courts hold that you could not foresee that your actions
ultimately would result in such injuries. In a few cases, though, courts have looked at
whether your actions caused an unreasonable risk of harm to someone else. If you left
your car parked with the engine running, for example, you might be liable if the car thief
then injures children playing nearby. In a no-fault state, on the other hand, it might be
difficult–if not impossible–for the passenger to sue you.
Q. I was hit by a car driven by a drunk driver who was going home after a
night out. What can I do, in addition to suing the drunk driver?
A. If you live in a state that has a Dram Shop Act, you may be able to recover from
the tavern owner where the drunk driver was served the liquor. Such acts usually come
into play when intoxicated people served by the bar later injure somebody while driving.
Some of those laws also make tavern owners liable when drunk customers injure others on
or off the premises. But some courts say a tavern owner will not be liable unless the sale
of the liquor itself was illegal.
Q. My wife was injured when her car was hit by one being driven by some
kids who had been drinking at the home of our neighbor. May I take any action
against the neighbor, who supplied the liquor to the youths?
A. Possibly. Courts have imposed liability against such neighbors or parents when
they have served liquor to minors. Parents can be liable for negligent supervision of their
children. But as a general rule, courts have said that social hosts are not responsible for the
conduct of their guests, unless the hosts routinely allow guests to drink too much–or take
illegal drugs-and then put them into their cars and send them out on the highway.
Q. I was injured when my automobile collided with a truck driven by a
delivery person. Can I recover damages from the driver or the employer?
A. You may be able to recover from both. Under a form of strict liability, known
as vicarious liability, you probably can recover from the deliveryperson employer. Under
the law, employers may be held liable to third persons for acts committed by employees
within the scope of their job. Although the employer was not negligent, it becomes
indirectly liable for the negligence of its employee. Was the employee making a delivery
when the accident occurred? If so, the employer is liable, since deliveries clearly is part of
the driver’s job. But if the employee first stopped at a restaurant for drinks and dinner with
friends, the employer may be able to escape liability.
Q. A car ran over my dog. Can I recover from the driver?
A. Yes, you might win a lawsuit. A dog is property, and you have suffered
property damage. You will have to show that the driver was negligent.
Injuries at Your Home and on Your Property
Under traditional legal principles, your liability to people injured on your property
changed according to the reason they came onto your property. Were they there to visit, to
sell, to solicit, to fix something, or to trespass? A more recent trend, however, holds land
or property owners to a general duty of care to prevent injury to anyone coming onto their
property, unless the dangerous condition was open and obvious.
Q. A furniture delivery person was injured when he tripped over an electrical
extension cord in my living room. Can he recover damages from me?
A. He could sue, though it is not certain that he would win. As noted above, until
recently your liability for someone’s personal injuries while at your home hinged on why
he or she was there. If people were doing work for you, the law held that you had a special
duty to make your home reasonably safe. In those situations, a court would have asked if
the cord were dangerous to anyone who came into your living room, or was it only
dangerous if someone moved your furniture? Did you warn the deliveryperson to watch
out for the cord? Courts would need the answers to such questions to decide if you are
liable to the deliveryperson. A growing trend would make you liable for the injury only if
you failed to exercise a general duty of care. By the way, homeowner’s insurance policies
generally protect homeowners in cases such as these.
Q. A door-to-door salesperson tripped on our front steps, injuring himself.
May he hold me responsible?
A. Perhaps. A door-to door salesperson may expect that you will warn him about
dangerous conditions on your property that may not be obvious. If your steps were in
perfect condition and he merely lost his footing, a court would not hold you responsible.
However, if he tripped because one of the stairs was wobbly and you knew about it, you
should have repaired it or posted a warning sign.
Q. What if a salesperson, or another passerby, falls on an icy sidewalk in front
of my house?
A. In some places, ordinances say that landowners whose property is next to a
public sidewalk are responsible for keeping the sidewalk in repair and clear of ice and
snow. But elsewhere owners have no duty to remove natural accumulations of ice and
snow that have collected on adjacent public sidewalks. In fact, they may be liable for
negligence if they undertake such a job and do not make the sidewalks safe. If landowners
fail to take reasonable action to correct a dangerous condition on the sidewalk, other than
a natural accumulation of ice or snow, that they knew or should have known about,
however, they can be held liable.
Q. Would I be liable if a trespasser gets injured on my property?
A. You generally are not liable for any injury to a trespasser on your property.
Suppose, however, that you know certain people continually trespass on your property,
perhaps using it as a shortcut. Then a court might find that you should have notified these
regular trespassers about any hidden artificial conditions of which you were aware could
seriously injure them.
Q. A group of eight-year-old children has been playing in a vacant lot that I
own. Could I be liable if one of them gets injured?
A. Yes, the law generally places a greater burden on landowners when injuries
involve children. The reason is that children are too young to understand or appreciate
danger in certain situations. Under a legal theory known as the attractive nuisance
doctrine, owners who knew or should know about potentially dangerous artificial
conditions on their lot must warn children who are playing there, or must take reasonable
precautions to protect them. If, for example, there is machinery or other equipment on
your vacant lot that could present an unreasonable risk to children, you should remove it.
If you don’t, you could very well be liable to the children for any injuries they suffer, even
if they were trespassing. In some jurisdictions, the attractive nuisance doctrine is being
replaced by a duty of reasonable care under the circumstances.
Q. Our children’s friends often come to swim in our backyard pool, even
though we are not always able to be there. What if one of them gets hurt?
A. You are liable because you have a legal duty to protect children from possible
harm should they decide to play around a dangerous place on your property. You should
make sure an adult is present when children are swimming, though this will not
necessarily avoid liability. And warning the children that they should not swim without an
adult present may not be enough to avoid liability if one of them gets injured. Also check
with your state or city to find out its requirements for residential swimming pools. Under
them, you may have a legal duty to erect barriers or such other protective features as an
automatic pool cover, a tall fence with a good lock that you keep locked or an alarm on the
sliding glass door from your home to the pool.
Injuries on Others’ Property
If You Get Injured in a Store…
Suppose you tripped and fell on a spilled can of paint in a hardware store where you were
shopping, injuring your foot. Can you recover damages from the store? It depends on the
facts of the case. Storeowners must keep their premises reasonably safe for customers,
inspecting and discovering any dangerous conditions. They also must keep all aisles clear
and properly maintained. A judge or jury will look at whether the owner was aware that
the paint can was in the aisle and how long it had been there. But a judge or jury also
might find that you discovered the spilled paint and proceeded to walk right through it.
Then the judge or jury might deny you damage or find you’re comparatively at fault, thus
reducing your recovery.
Q. What if I get injured while at the home of my neighbor, who invited me
there for a party?
A. As a social guest, you might be able to recover from your neighbor, depending
on how your injuries happened. Homeowners must tell their guests about–or make safe–
any dangerous conditions that the guests are unlikely to recognize. Suppose, for example,
that your injury was caused when you tripped on a throw rug. You may be able to recover
if you can prove that your neighbor knew other people had tripped over it and you were
unlikely to realize its danger. Your neighbor probably should have warned you about it,
removed it during the party, or secured it to the floor with tape or tacks.
Q. I was walking on a public sidewalk next to a construction site when I
tripped and fell on a brick from the site, spraining my ankle. May I recover damages
from the construction company?
A. In some circumstances, you will be able to recover damages from the
construction company, which has a duty to take reasonable steps to keep sidewalks near its
construction sites free from bricks and other debris. If the company fails to remove such
obstructions and you trip and fall, the company may be liable for your injuries.
Construction companies should tell pedestrians that they could get injured if they stray
from the sidewalk. But posting a sign is not enough. If a company fails to place barriers or
warning lamps by a building pit, for example, it may be responsible if anyone falls into it
and gets injured.
Q. I fell on a broken piece of a city sidewalk and injured my ankle. Do I have
a case against the city?
A. In many states, municipal immunity statutes prohibit recovery in many kinds of
cases against a city or town. If there is not such a statute or ordinance, however, you may
have a case. Municipalities have a duty to keep streets and sidewalks in repair. You might
have a successful case against the city if you can show that it failed to maintain the
sidewalk properly.
Landlord Liability
In recent years many states have required landlords to maintain residential property in
“habitable” condition by imposing a warranty of habitability. A violation of that warranty
could result in your suing the landlord for failing to maintain the property and thus
violating the warranty. But negligence claims are also possible. If guests are injured when
a back porch that is part of a unit collapses during a party, the landlord probably would be
held liable, especially if he or she had been warned that the porch was sagging or was
infested with termites but had not repaired it. Of course, the landlord may be able to argue
that the porch collapsed because there were too many people on it.
Landlords also must maintain any “common area” of the building–including stairs,
corridors and walkways–for both tenants and guests of the building. If a guest is injured
when she trips over some loose carpeting in a corridor, for example, the landlord generally
would be liable.
If you are a landlord, there are ways to reduce your chances of liability. Consider having
your insurance company inspect the premises and then promptly repair any safety
problems the inspector uncovers. If you inspect the premises yourself, look for unsafe
wiring, loose railings, poor lighting or similar flaws. You might also write tenants a letter
each year asking them to point out hazards or needed repairs they may have noticed. If a
tenant who lives in the building every day fails to notice a hazard, it is hard to argue that
the landlord should know about it. But that still may not protect you in a suit by someone
who is injured while visiting.
Q. My son received an injury during basic training in the U.S. Army. May he
recover damages from the federal government?
A. No. People in the armed services who receive injuries during the course of their
duties are not permitted to recover for their injuries. But the Federal Tort Claims Act of
1946 waives U.S. immunity for a “negligent or wrongful act or omission.” So it would
permit, under certain conditions, recovery in personal injury lawsuits against the United
States government for torts committed by its employees. These actions are brought in the
U.S. Claims Court (see the “How the Legal System Works” chapter). Some
states have their own courts of claim. In other states, claims actions can be brought
through other courts.
Q. My son and his friends went snow-mobiling on a nearby farm. When the
vehicle ran into a fence, one of them got hurt. The farmer now says he is not liable. Is
that true?
A. If landowners know that others are using their land for snowmobiling, most
states say they must warn snowmobiles about hidden dangerous conditions or remove
them. Was the fence visible? Did the farmer recently build it? A few states, such as
Michigan, have laws specifically dealing with liability when someone uses property for
recreational purposes without permission. In those states, the farmer probably would not
be liable if he did not authorize the boys to be on his land and did not act recklessly. You
might want to ask a lawyer about your state’s law.
Q. I got injured on a ski lift. May I recover against the ski resort?
A. Possibly. Can you prove that the resort was negligent? Remember that some
states have laws limiting the liability of resorts, saying there are certain risks that a person
assumes when skiing. However, some states hold that ski lifts are common carriers, like
buses. They have higher duties than others, so in one of these states you might have an
excellent case.
Liability at Sporting Events
Suppose you went to a baseball game, and a ball that a player hit into the stands injured
you. What can you do? Spectators at a baseball game know they may be injured by a
flying ball. That is why courts generally say that spectators assume the risk of being hurt
by a ball. The same usually holds true if a golf ball hits you while you are watching a golf
match. Likewise, if a wheel from a car in an automobile race flies into the stands, you
assume the risk of getting hurt. The legal term for this doctrine is assumption of the risk. It
means that you agreed to face a known danger. But if there is a hole in a screen intended
to protect spectators at the baseball park, you then probably could argue that it was
negligence not to have it repaired.
Q. My daughter, who plays on the local park’s basketball team, brought home
a note asking us to sign a form saying we won’t hold the park district responsible for
injuries. What is that?
A. You are talking about a so-called waiver of liability that is intended to
contractually release the organization of any liability should an injury occur. Your
signature doesn’t necessarily mean that you’ve signed away all of your rights. If you must
either sign such a form or deprive your child of the chance to participate in the activity, a
court may hold that your waiver is not really voluntary and thus not valid. And even in
those states that recognize waivers, the waiver might not mean that you are giving up your
right to sue entirely. If an injury results because of intentional or reckless behavior, you
probably will be able to seek damages.
Q. I was staying at a motel when there was a fire, but there was no water
sprinkler system and no escape route posted in the room. Doesn’t the hotel have to
have those safety precautions?
A. The motel management probably should have exercised reasonable care about
the fire alarms and fire escapes. And they should have helped you escape. As in the case
of the common carrier above, the law generally says that innkeepers, who have a special
relationship with their guests, have a higher duty of care.
Q. Someone attacked my daughter on the campus of the college she attends.
May she hold the school responsible for this attack?
A. Your daughter might have a negligence action against the college. In a
developing area of law known as premises liability, courts have found such entities as
universities, motels, convenience stores and shopping malls liable for attacks because they
did not exercise reasonable care in preventing victims from being harmed by a third
person. In a case that drew headlines in the 1970s, for example, a court awarded $2.5
million to singer Connie Francis for an attack at a Howard Johnson’s Motor Lodge. The
court found that the motel did not take proper and reasonable steps to prevent the attack.
In general, a hotel must provide adequate security and not permit people to loiter. In your
daughter’s case, a court would look at the facts and ask whether similar attacks had
occurred previously in the same area. If so, the court would ask what security precautions
the college had taken.
Q. I was attacked after withdrawing money from an automated teller machine
(ATM). What can I do?
A. Under the tort theory of premise liability, discussed above, customers have sued
banks for failing to protect them from assault at ATMs. While there used to be no
common law duty to provide security against such crimes, a duty has been recognized in
recent years. In such a case, a judge or jury would determine if there were past
occurrences and if a likelihood of a crime was foreseeable. If so, they may hold that the
bank had a duty to protect people using that machine and that the bank was liable.
Q. Is there anything else victims may do?
A. Yes. Most states have laws compensating victims of violent crimes for lost
wages, counseling, and medical expenses. There also are several victim assistance
programs. Check with your local prosecutor’s office (possibly called the office of the
state’s attorney or district attorney).
If You Get Injured at Work
Workers’ compensation laws, currently in place in all fifty states and the District of
Columbia, cover most workers injured on the job. Under these laws, employers
compensate you for your injuries, including medical expenses, lost wages (temporary
disability) and permanent or temporary disability, regardless of who was at fault. All you
have to do is file notice with your employer and a claim with the state’s worker’s
compensation commission, or board. (See the “Law and the Workplace”
chapter for more details.)
Legislatures created the laws because they thought that liability for workplace accidents
should be placed on the one most able to bear the loss–the employer. The statutes fall
under strict liability principles, discussed below, so no employer or employee negligence
or fault need be shown. In fact, the statutes prohibit employees from filing tort claims
against their employers for conditions covered by the law. Instead, an employee gets paid
according to a fixed schedule of benefits, regardless of who was at fault.
It is extremely rare that an employee is not covered by such a law, but if you are not, you
may be able to recover from your employer on a negligence claim. To do so, you must
show that your employer failed to exercise reasonable care in providing you with safe
working conditions or that your employer failed to warn you of unsafe conditions that you
were unlikely to discover. Other possible suits against your employer might include an
action alleging an intentional injury or an intentional disregard of your safety. Or your
spouse might sue for loss of consortium. (See the “Family Law” chapter for
more details.)
Q. I think my colleagues’ smoking at work is making me sick. Since I’m a
non-smoker, do I have any recourse?
A. In a growing area of interest, a recent Environmental Protection Agency report
has linked “passive” tobacco smoke to lung cancer and other ailments. Some non-smokers
have filed workers’ compensation claims saying they became ill in a smoke-filled
workplace. Damage suits also have been filed against the employers, for allowing
smoking, and directly against tobacco companies. The non-smoker would have to show
that the presence of smoke caused his or her illness.
Negligent Infliction of Emotional Distress
Q. We recently got a call from the hospital where someone had taken my mother.
The hospital told us that she had died of a heart attack. However, it was not true.
The hospital’s false report devastated us. What can we do?
A. The circumstances you describe are rare. Nonetheless, you may be able to recover
from the hospital for the negligent infliction of emotional distress. That is, you may be
able to sue the hospital successfully for negligently causing you to endure emotional pain.
Courts generally have maintained that a person must have physical injuries to recover in
such cases. But courts in some states have allowed recovery when there are no physical
injuries. Other successful emotional distress suits have involved bystanders For example, a
court allowed a mother who saw her child fatally hit by a car to recover money damages.
Q. The store where I bought my wedding gown failed to deliver it in time for the
ceremony. What can I do?
A. Although you no doubt suffered some distress, it is unlikely that you have a
personal injury case. The store was negligent in failing to get your dress to you on time.
Although it may have been traumatic for you, generally you would have to show a
physical consequence of the injury. You may, however, have a case for breach of contract.
Medical Malpractice
Q. What is medical malpractice?
A. Medical malpractice is negligence committed by a professional health care
provider–a doctor, nurse, dentist, technician, hospital or hospital worker-whose
performance of duties departs from a standard of practice of those with similar
training and experience, resulting in harm to a patient or patients. Most medical
malpractice actions are filed against doctors who have failed to use reasonable care
to treat you. The profession itself sets the standard for malpractice by its own
custom and practice. Historically under the so-called “locality rule,” a doctor was
required only to possess and apply the knowledge and use the skill and care that is
ordinarily used by reasonably well-qualified physicians in the locality, or similar
localities, in which he or she practiced. But today the trend is toward abolishing
such a rule in favor of a national standard of practice.
Q. Hasn’t there been talk about changing the way that malpractice cases are
A. Yes. Especially in the 1980s, doctors and members of the insurance industry said
there was a “malpractice crisis,” with spiraling insurance premiums and unreasonably high
jury verdicts. As a response to that, some states passed laws capping damage awards,
limiting attorneys’ fees and shortening the time period in which plaintiffs could bring
malpractice suits. Some states instituted no-fault liability for malpractice claims, or
developed arbitration panels to hear medical malpractice claims before they could be filed
in court to be determined by a judge or jury
Other “tort reforms” are often discussed, including reducing recovery for “pain and
suffering” in malpractice lawsuits and reducing damages to take into account payments
from insurance and workers’ compensation.
Q. What do I do if a think I have a medical malpractice claim?
A. Talk to a lawyer who specializes in such work. Tell the attorney exactly what
happened to you, from the first time you visited your doctor through your last contact with
him or her. What were the circumstances surrounding your illness or injury? How did your
doctor treat it? What did your doctor tell you about your treatment? Did you follow your
doctor’s instructions? What happened to you? Answers to these and other relevant
questions become important if you think your doctor may have committed malpractice.
Like other personal injury claims, the case will either be settled or go to trial, usually
before a jury.
Q. How does a jury determine if a doctor’s actions were within the standards of
good medical practice?
A. A jury will consider testimony by experts–usually other doctors, who will testify
whether they believe your physician’s actions followed standard medical practice or fell
below the accepted standard of care. In deciding whether your heart surgeon was
negligent, for example, a jury will be told to rely on expert testimony to determine what a
competent heart surgeon would have done under the same or similar circumstances. A
specialist, like a heart surgeon, is held to a higher standard of care–that of a specialist–
than would be expected of a non-specialist.
Should You Stop and Help Someone in an Emergency?
Generally you do not have a duty to stop and help someone in an emergency. The law says
that if you did not cause the problem and if you and the victim have no special relationship
you need not try to rescue a person. But states have passed so-called Good Samaritan laws
that excuse doctors–and sometimes other helpers–from liability for negligence for
coming to the aid of someone in an emergency. In some states, if you injure someone
while driving, you must help that injured person, regardless of who was at fault. Some
courts look at the circumstances of the rescue. They say that if you know someone is in
extreme danger that could be avoided with little inconvenience on your part, you must
provide reasonable care to the victim. Of course, you always are free to go voluntarily to
the aid of someone in trouble. But if you abandon your rescue efforts after starting them,
you may be liable if you leave a victim in worse condition than you found him or her.
Q. I signed a consent form before my doctor performed surgery. What did it
really mean?
A. It is common practice in hospitals for patients to sign a form giving the doctor
their consent, or approval, to perform surgery. In the form, the patient usually consents to
the specific surgery as well as to any other procedures that might become necessary.
Before you sign it, your doctor should give you a full description of the surgery and the
risks involved, and the ramifications of not getting such treatment. If you can prove that
your physician misrepresented or failed to adequately inform you of the risks and benefits
before surgery, your consent may be invalid. The only time the law excuses doctors from
providing such information is in emergencies or when it would be harmful to a patient.
But even if your doctor should have secured your consent and did not, you still may not
automatically recover. You may still have to prove that, if adequately informed, a
reasonable person would not have consented to the surgery.
Q. If the consent form is considered valid, can I recover any damages in a
malpractice action against my doctor?
A. Yes, you still may be able to recover damages. A consent form does not release
from liability a physician who did not perform the operation following established
procedures or who was otherwise negligent. You may also have a claim that the surgery
the physician performed went beyond the consent you gave. Then the doctor might even
be liable for battery.
Q. What if I’m just not satisfied with the results of my surgery? Do I have a
malpractice case?
A. In general, there are no guarantees of medical results. You would have to show
an injury or damages that resulted from the doctor’s deviation from the appropriate
standard of care for your condition.
Q. I got pregnant even though my husband had a vasectomy. Can we recover
A. Yes, you may be able to win a case. A number of negligence cases have been
permitted against physicians for performing unsuccessful vasectomies or other methods of
sterilization that resulted in unwanted children. Courts increasingly allow a suit to be filed
by the parents of a child born as a result of wrongful conception or wrongful pregnancy.
Damages generally are limited to those associated with the pregnancy and birth and do not
extend to support of the child.
Q. I don’t think it was necessary for me to have a cesarean section when I
delivered my daughter. Is there anything I can do about it?
A. Although most malpractice cases involving cesarean sections are brought
against doctors who did not perform them when they should have, with resulting injuries
to the mother or child, it is possible for a woman to win damages against her doctors for
unnecessarily delivering her child by cesarean section. An expert would still be necessary
to state that in doing the cesarean section, the delivering doctor deviated from the
appropriate standard of care.
Q. My doctor prescribed a drug for treatment but failed to tell me it was part
of an experimental program. What can I do?
A. This is quite a rare circumstance, but your physician had a duty to tell you that
the drug was part of an experimental program. You had the right to refuse to participate in
it. You now may have grounds for an action against your doctor.
Q. May I recover medical and hospital bills from someone who caused an
injury to me even though my insurance company has paid the bill?
A. Yes. However, if you do recover payment from the person who injured you for
those bills, some states require you to reimburse your insurance company. In those states,
the law does not allow you to get a double recovery. Often the insurance policy contains a
subrogation clause that does not permit double recovery.
Q. My aunt discovered that a sponge left in her during an operation years ago
was the source of stomach trouble. May she still sue?
A. Like other personal injury cases, medical malpractice lawsuits are subject to
specific statutes of limitations (discussed earlier in this chapter). Until
recently, your aunt’s suit may have been thrown out of court. In many statutes, time limits
on filing began when the injury occurred–on the day of the operation. To alleviate such a
harsh–and final–result, many states today have altered their laws, and the clock for filing
a case does not begin to toll until people discover that they have suffered an injury, or
should have discovered it. Even with the discovery rule, there are time limits, known as
statutes of repose, which limit the time within which to file suit before or after discovery
of the injury.
Q. My father’s job exposed him to asbestos. Now he has lung disease. Is it too
late to file a claim?
A. It may not be too late. Many people who suffered injuries from toxic substances
such as asbestos did not know at the time of exposure that the compounds were harmful.
As a result, some states have enacted laws allowing people to file lawsuits for a certain
amount of time from the date when the lung impairment or cancer begins, rather than from
the date of exposure. A lawyer can tell you whether your father still has time within the
statutes of limitations applicable in your state. In general, the area of workplace illnesses
is covered by workers’ compensation (discussed earlier in this chapter and in
the “Law and the Workplace” chapter).
Q. What about malpractice actions against professionals such as lawyers? I
recently hired a lawyer seemed inexperienced and was unhappy with the outcome of
the case.
A. Like doctors, lawyers and other professionals must possess and apply the
knowledge and the skills of other reasonably well qualified professionals. Not only must
they exercise reasonable care in handling your case, they also must possess a minimum
degree of special knowledge and ability. That means that they will be liable to you if their
skills do not meet the accepted standard of practice. You must also prove that the case
your lawyer mishandled was likely to succeed. Lawyer malpractice usually results in
property damage only. You cannot recover for the emotional distress of hiring a negligent
lawyer. In your case, you may have a malpractice action against the attorney if he or she
was negligent in representing you. You’ll have to show more than dissatisfaction with the
outcome of the case. Did he or she fail to meet a deadline for filing for a court proceeding?
Were all the crucial legal elements of the case fully explored? If you are unsure about a
basis for a malpractice case, check with the state agency that regulates lawyers in your
state. Your state bar association will be able to tell you the name of the agency is.
Strict Liability
Q. Is there any other basis for liability besides negligence?
A. Courts hold some persons or companies strictly liable for certain activities that
harm others, even when they have not acted negligently or with wrongful intent, a concept
that will be discussed later in this chapter. Persons or companies engaged in
blasting, storing dangerous, toxic substances or keeping dangerous animals, for example,
can be strictly liable for harm caused to others. The theory behind imposing strict liability
on the part of those conducting such activities is that these activities pose an undue risk of
harm to members of the community. Thus, anyone who conducts that activity does so at
his own risk and is liable when something goes wrong–even innocently–and someone is
harmed. The people who posed the risk are in the best position to pay for it. Holding
manufacturers liable for injuries their products cause is a good example of strict liability.
Q. I was opening a soft drink bottle when it exploded in my face and flying
glass cut me. Was somebody at fault?
A. Yes, someone was at fault, since bottles ordinarily do not explode in a person’s
face. Courts often decide such cases under principles of strict liability, meaning that
instead of having to prove that someone was negligent, a plaintiff would only have to
prove that the bottle exploded and that he or she was injured by it. Some courts continue
to decide such cases under negligence principles, however. If the bottler sealed the bottle
and it was handled carefully between the time it left the bottler’s possession and the time
of the explosion, some courts assume–or consider it circumstantial evidence–that bottler
was negligent.
Q. We live near a site where a gasoline company stores its flammable liquids
and worry about the possibility that an accident may occur. Would we be able to
recover damages if an accident was to occur?
A. Probably. Courts have found such storage to be an inherently dangerous
activity. This means that the act is hazardous by its very nature, whether it is done well or
badly. Courts normally are likely to impose strict liability against the company for injuries
that an accident may cause. Courts still might look at the location of the storage, however.
If storage in the middle of a large city poses unusual and unacceptable risks, then courts
might impose strict liability. The same holds true when a factory emits smoke, dust or
noxious gases in the middle of a town. But a company may not be held strictly liable if it
conducts such activities in a remote rural area and is not doing the activity in any unusual
Q. What is the legal responsibility of a person who keeps wild animals?
A. Most states impose strict liability against keepers of such wild animals as bears,
lions, wolves and monkeys, reasoning that merely keeping them exposes people to
abnormal risks. If an injury occurs on the owner’s premises and is caused by a confined or
restrained animal, however, courts tend to deny strict liability. The courts reason that you
assumed a risk by going there.
Visiting a Zoo
Zoos go to great extremes to protect visitors from the risks posed by their animals.
Generally they restrain or confine the animals. For that reason, courts usually do not
impose strict liability when a visitor to a zoo gets injured. Instead, the visitor must show
that the zoo was somehow negligent in how it kept the animal.
Q. What if one of my animals escapes from our fenced-in yard and goes onto
our neighbor’s property?
A. In most jurisdictions, keepers of all animals, including domesticated ones, are
strictly liable for damages resulting from the trespass of their animals on another person’s
property. But courts make exceptions for the owners of dogs and cats, saying they are not
strictly liable for trespasses, absent negligence, except where strict liability is imposed by
statute or ordinance.
Q. Am I automatically liable if my dog, normally a friendly and playful pet,
turns on my neighbor and bites her?
A. It may depend on where you live. A number of jurisdictions have enacted dog
bite statutes, which hold owners strictly liable for injuries inflicted by their animals. If
there is no such law in your town, you still can be found liable under a common law
negligence claim if you knew the animal was likely to cause that kind of injury and failed
to exercise due care in controlling the pet. If, on the other hand, you did not know or have
any reason to suspect that your dog had such a dangerous trait, courts have said owners
generally are not liable. It is important that you contact your local animal control
department to find out about any regulations in your area.
Q. Our neighbors have a vicious watchdog. We are scared to death that the
dog will bite one of our children, who often wander into the neighbor’s yard. What
can we do?
A. The situation you pose is a common one and, as in the example above, is
precisely the reason a number of municipalities regulate dog ownership, especially of
vicious dogs, through ordinances. A great deal would depend on the ordinance where you
live. Unless your neighbor posts adequate warnings, he may be strictly liable for injuries
caused by a vicious watchdog. (And there is a question of whether written warnings are
sufficient if a child is injured.) Even if the dog never bit before, such liability is imposed
because of the mere fact that the dog is known to be vicious–or has certain dangerous
Product Liability
Strict product liability, now the law in nearly every state, allows an action against a
manufacturer that sells any defective product resulting in injury to a buyer or anyone who
uses it. If you are injured by a defective product, you do not need to prove that a
manufacturer was negligent, but only that the product was defective. A strict liability
action can be brought against the parties that designed, manufactured, sold or furnished
the product. It is possible for plaintiffs to recover punitive damages in strict product
liability actions, though such cases are relatively rare and usually deal with outrageous
conduct. Punitive damages are money awards, which go beyond an award for other
damages. Punitive damages are intended to set an example and punish wrongdoers for
intentional and outrageous conduct with evil intent. Liability actions against
manufacturers for products that injure consumers also may be based on negligence, a
contractual breach of warranty or, sometimes, a manufacturer’s intentional wrongful
Q. Our brand-new power mower backfired and injured me. From whom may
I recover damages?
A. This is a typical product liability case. You may be able to prove that the
manufacturer of the lawn mower made a defective product. Most courts today hold
companies responsible for a defective product strictly liable to consumers and users for
injuries caused by the defect. The product may have had a design flaw or a manufacturing
defect. Another possibility may be that the producer or assembler failed to provide
adequate warning of a risk or hazard or failed to provide adequate directions for a
product’s use.
Q. A disclaimer that came with the lawn mower said the manufacturer did
not warrant it in any way. Will that defeat our claim?
A. While limited warranties are sometimes enforced by courts, full disclaimers
often are not. Courts find such warranties invalid because you, as the consumer, are not in
an equal bargaining position. They also rule that such clauses are unconscionable (grossly
unfair) and contrary to public policy. (See the discussion of “contracts of adhesion” and
unconscionability in the chapter “Contracts and Consumer Law.”) Most
courts limit the effect of limited warranties to repairs. A limited warranty is not a waiver
of liability for injuries.
Q. A toy my grandson was playing with came apart, and he put one of the
pieces in his mouth and started choking. Do we have any redress against the toy
A. The manufacturers of toys are closely monitored by the federal Consumer
Product Safety Commission (CPSC), but lawsuits against them are abundant as well. Like
others that put products into commerce, toy manufacturers have a duty to consider any
foreseeable misuse of their products. As in any strict liability action, several questions
would need to be answered to determine the manufacturer’s culpability. Did it have a duty
to warn of the danger of the toy falling apart? If so, what was the likelihood that it would
break into small parts that could be dangerous to a small child? Did it make a difference
how the child was playing with the toy? Because toy manufacturers outside of the U.S.
can be difficult to sue, you also might want to consider suing other parties in the toy’s
chain of distribution–the toy store, for example, or perhaps a fast-food chain that
distributed the toy as part of a promotion. Such retailers also can be liable for injuries.
Q. I suffered a severe allergic reaction from some cosmetics I used and needed
medical treatment. May I recover from the manufacturer?
A. Perhaps. Did the manufacturer warn you that the cosmetic could cause such a
reaction? Some courts normally will not hold the manufacturer liable for failing to warn
you of the risk of an adverse reaction unless you can prove that an ingredient in the
product would give a number of people an adverse reaction. You also must prove that the
manufacturer knew or should have known this and that your reaction was because you
were in that group of sensitive people, and not because you are hypersensitive. In addition,
courts will determine whether you used the product according to the directions provided
with it. Misuse is a defense recognized in strict liability. If the court does not find strict
liability, you still might recover on a negligence claim.
Q. My little boy contracted Reye’s Syndrome after I gave him children’s
aspirin for a respiratory ailment. Can we recover?
A. Because of the known danger of contracting Reye’s Syndrome when a child
takes aspirin, children’s aspirin bottles contain warnings. But in one California case, an
appellate court said a jury should decide whether a manufacturer was negligent in failing
to supply a Spanish-language warning of the hazards associated with aspirins. The child’s
mother could only speak Spanish and was unable to read the warning in English on the
aspirin bottle. The case is now before the California Supreme Court.
Q. I got hepatitis from a blood transfusion. Is someone liable?
A. In many states, laws protect suppliers against strict liability when people who
receive blood transfusions contract an illness from contaminated blood. However, you
may recover if you can show negligence by the supplier.
Breast Implant Litigation
There have been literally thousands of lawsuits filed by women who have undergone
breast implantation and now allege that the implants contributed to a wide range of health
problems, ranging from cancer and autoimmune diseases to joint pains and interference
with cancer detection. In addition to saying that both silicone breast implants and other
artificial implants were responsible for adverse-health effects in them, women have
alleged that the implants also caused miscarriage and harmful effects in their children,
some of them because they were breastfed. The suits generally say that the manufacturers
were negligent and that they knew the product was defective. Because this is a new area of
tort law, it is important to contact a personal injury lawyer if you think you may have a
Q. I was injured because of a brake defect in a used car I bought. May I
recover from the dealer?
A. At least one used car dealer has been subject to a negligence action for failing to
inspect or discover such defects. But courts are split on whether dealers in used goods
should be subject to strict liability. Holding them strictly liable appears to be a minority
What You Should Do If You Are Injured By a Product
Keep the evidence. If a heating fixture ruptures and injures someone in your family, keep
as may pieces of the equipment as you can find and disturb the site as little as you can.
Make note of the name of the manufacturer, model and serial number. Keep any
packaging or instructions. Keep any receipts showing when and where the product was
purchased. Take pictures of the site and of the injury. Make a record of exactly when the
incident occurred and under what circumstances. Be sure you have accurate names and
addresses for all doctors and hospitals treating the injured victim.
Intentional Wrongs
Q. Is a civil lawsuit based on liability for an intentional tort different from a
lawsuit based on negligence or strict liability?
A. Not really. You may claim the same types of damages, but you must prove
different elements. A person who is found liable for an intentional tort does more than just
act carelessly, which might make him or her liable for negligence. The person committing
the former tort is said to intend the consequences of his or her action. If you pick up a
realistic model of an AK-47 and point it at another person out of the window of your car,
you are going to scare that person. Under the law of intentional torts, you may be liable for
an assault.
You do not have to intend to harm that person to be liable for an intentional tort,
either; you even may be attempting to help that person. In one reported case, for example,
a defendant was found liable for an intentional tort when, despite her protests, he
proceeded to set the broken arm of a woman who had fallen. Unlike a negligence action, a
plaintiff alleging an intentional tort does not need to show actual damages to recover.
Q. I got a black eye in a fistfight with a man whose car accidentally bumped
into mine while we sat at a red light. I would love to get even with him. Can I recover
if I sue him?
A. Normally you could recover damages in a civil battery case against someone
who hits you. But a court might hold that two people who get into a fistfight in effect
agree to being hit by one another. If so, a battery case probably would fail. A lot would
depend on the facts of the case. Who started the fight? Were you simply trying to defend
yourself from his aggression? Were there witnesses? What would their testimony be?
Q. Isn’t battery a crime?
A. Yes, battery can be a crime but as a personal injury action it is a civil claim, as
are all tort actions. The law considers torts to be wrongs against an individual, allowing
the individual to sue for money damages. (For more on criminal assaults and batteries see
the “Criminal Justice” chapter.) As a tort, a battery is a harmful or offensive touching of
one person by another. Anyone who touches you or comes into contact with some part of
you-even your purse-when you do not agree to it may be liable to you for battery. The law
does not require any harm or damage. You do not even have to know a battery is
occurring at the time in order to bring a battery claim. The person committing the battery
may have meant no hatred or ill will. In one case, for example, a plaintiff successfully
recovered damages for an unwanted kiss. In another case, a court found a defendant liable
for spitting at someone’s face. Also, a court found a battery when a person forcibly
removed a women’s hat. However, damages for technical batteries are small. After all, you
were not actually hurt, so how much should you get?
Q. What is the tort of assault?
A. An assault is a reasonable apprehension (expectation) of some harm that may
come to you. Unlike a battery, you must know that an assault is occurring at the time it
takes place. A court will look at what happened. A great deal will depend on the
reasonableness of your own feelings when threatened. The court will consider whether the
closeness of the physical threat should have subjectively upset, frightened, or humiliated
you. Words alone usually are not enough to bring a case for assault.
Q. My neighbor fired his shotgun to scare a solicitor whom he did not want
coming to his door. The bullet grazed a passerby. Will my neighbor be liable?
A. Under a legal doctrine known as transferred intent, your neighbor could be
liable for a battery to the passerby. This is true even though the passerby was an
unexpected victim whom your neighbor did not intend to harm. The solicitor also is likely
to win an assault case against your neighbor. The firing of the gun placed the solicitor in
reasonable apprehension of a battery, which is the legal definition of an assault.
Q. A security guard in a store suspected me of shoplifting and detained me. I
have heard about something called false imprisonment. Do I have an action for that?
A. If the security guard was acting in good faith, most courts will allow the guard
to detain you briefly on the store premises. A number of states by law have given
shopkeepers a limited privilege to stop suspected shoplifters for a reasonable amount of
time to investigate. Nonetheless, you may be able to recover damages for false
imprisonment. Suppose the security guard genuinely restrained you against your will,
intending to confine you. Damages for such an action generally include compensation for
loss of time and any inconvenience, physical discomfort or injuries. If the guard acted
maliciously, you also may be able to receive punitive damages.
Q. Someone broke into my house in the middle of the night and attacked me.
It was dark and I could not see the intruder well. I chased and knocked down a
teenager running down the street because I thought he was the culprit, but I was
wrong. Will I be liable to him?
A. If you reasonably believe someone broke into your house and attacked you, you
have the right to defend yourself by injuring him, even though it turns out that the one you
injured is not the same person who broke into your house. If you believe someone is about
to inflict bodily harm, you may use non-deadly force to defend yourself. In this particular
case, if the teenager already was running down the street, courts may say that there no
longer was danger to you or your property. Then, outrageous as it sounds, you might well
be liable. In situations where you believe an intruder is about to inflict death or serious
bodily harm, courts allow you to use deadly force. The question then becomes whether the
force you used was reasonable under the circumstances.
Q. We got behind on our bills and a bill collector has been stopping by and
calling us day and night. The bill collector intimidates us, calls us names and
threatens to destroy our credit record. We are nervous wrecks. What may we do?
A. You may be able to make a case that the collector’s conduct is a tort, the
intentional infliction of mental distress. Courts recently have begun to recognize such
actions as extreme and outrageous conduct that someone else intentionally inflicts on you.
For you to recover damages, you must show more than hurt feelings. Without aggravating
(intensifying) circumstances, most courts have not allowed recovery if the collector was
merely profane, obscene, abusive, threatening or insulting. The collector would need to
have used outrageous and extreme high-pressure methods for a period of time. If the
collector touched you offensively without your consent, you might even want to consider
adding claims for two other intentional torts-assault and battery. You also might want to
consider a case against the collector’s employer. Just as employers are vicariously
(indirectly) liable for the negligent acts of an employee, employers can be liable for the
intentional acts of an employee. (See the “Consumer Credit” chapter for other
legal protection against debt collectors.) A court would need to determine whether the
collector’s particular conduct fell within the scope of his or her job.
Forms of Defamation
Defamation involves your reputation. If something is said or shown to a third person and
is understood by that person to lower your reputation, or keep others from associating with
you, you may have a defamation claim. Libel and slander are two types of defamation. To
recover for defamation, you have to prove that the information is false–truth is a defense.
Plaintiff’s consent to the publication of defamatory matter concerning him is a complete
defense as well.
Defamation generally is easier to prove if you are a private person. Courts treat public
officials and figures differently from private persons in deciding whether someone has
defamed them. Public figures must show that the speaker or publisher either knew the
words were false or was negligent in saying them. Courts have established certain
constitutional protections for statements about public officials. That is why they must
show that the speaker or publisher made the statement knowing it was false–or seriously
doubting its truth.
Q. What is the difference between slander and libel?
A. A defamation action for slander rests on an oral communication made to
another that is understood to lower your reputation or keep others from associating with
you. Libel generally is considered written or printed defamation that does the same thing.
Radio and television broadcasts of defamatory material today are nearly universally
considered libel.
Q. My late grandfather, who owned a textile factory, was called “unfair to
labor” in a recent book about the industry. Is that libelous?
A. While it can be libelous to write that someone is unfair to labor–or is a crook, a
drunk, or an anarchist–no defamation action can be brought for someone who is dead. If
your family still owns the factory and the same accusation made against your grandfather
was made against one of you, a defamatory action could be brought.
Q. I have a tax-return preparation business, and a neighbor recently told a
potential client that I did not know a thing about tax law. Isn’t that slander?
A. You might have a case. If someone says something that affects you in your
business, trade, or profession, you can recover in a slander action even without showing
actual harm to your reputation or other damages. You can do the same in three other
situations–if someone says that you committed a crime, that you have a loathsome
disease, or that a specific female is unchaste (impure).
Of course, you can recover in other slander cases, but in those you must show that
you were actually damaged.
Q. Are there defenses to defamation?
A. There are several defenses that will defeat a defamation claim. As mentioned
above, consent is one; truth is another. And certain persons and proceedings (such as a
judge in his or her courtroom, witnesses testifying about a relevant issue in a case, and
certain communications by legislators) are said to be privileged. They are protected from
defamation claims.
Where to Get More Information
Tort law covers a broad spectrum of potential injuries to persons and property, but nearly
all the cases involve insurable interests–your life, your health, your home, your property,
and your car. For that reason, qualified insurance representatives might be the best place
to start to get information about the insurance you would need to protect you if a claim
were brought against you. Should a claim on your own behalf arise, you probably will
need to contact a qualified personal injury attorney, following some of the suggestions set
out earlier in this chapter.
There are several agencies that also might help you with certain kinds of claims. The
federal Consumer Product Safety Commission (CPSC)——for example,
regulates many products put into commerce, including toys, and could be helpful if you
believe a product is defective. The federal Food and Drug Administration (FDA)——regulates drugs and other items, like breast implants, that have been
subject to recent litigation.
In addition to making a tort claim, you might want to pursue other methods of complaint.
Consumer protection agencies can be found in every state. State attorney generals’ offices
offer information and accept complaints. You also can contact state boards that regulate
the conduct of lawyers, doctors, veterinarians, and even barbers. Check the government
listings in your telephone directory for the numbers of these agencies.
Click here to go to Chapter 14


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