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 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 the plaintiff proves unlawful and unpermitted contact with
his or her person or property. For example, plaintiffs have successfully
proven a battery 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.
Back to Top
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 under a theory of strict
liability for plaintiff's injuries regardless of the plaintiff's conduct.
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 the 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 or her damages. The plaintiff should introduce evidence, such as doctor
and hospital bills, of how much it has cost to treat the injury. In addition,
the plaintiff may be able to recover lost wages if the injury kept the
plaintiff out of work. The plaintiff is entitled to compensation for any
permanent disability caused by the injury, as well as compensation for pain
and suffering.
Back to Top
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 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 a 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.
Back to Top
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 or her 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.
Back to Top
An owner of property has a duty to protect members of
the public from injury that may occur upon the property. The injured person
may be able to recover money for those injuries if he or she 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 that person 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 or her 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 the entry on the property, the use to which the property is put,
the foreseeability of the plaintiff's 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.
Back to Top
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 the owner's garage, without any threat of bodily harm,
is not justified in shooting that child.
Back to Top
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.
Back to Top
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.
Back to Top
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 depended on the deceased for economic support. In those
jurisdictions, 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.
Back to Top
Personal injury actions require, by their very
nature, that someone be injured. The requisite injury can either by physical
or, in some cases, emotional. The general goal of personal injury actions is
to place the blame for the injury on the party who caused it and to require
them to compensate the injured for the losses sustained.
Not every injured plaintiff is entitled to recover
damages for the injury he or she sustains. Besides an injury, the plaintiff
must establish, through evidence, that the defendant is legally liable for his
or her injuries. This requires proof of causation both in terms of actual,
factual causation and proximate, or legal causation. Whether legal causation
is established depends on the facts and circumstances of the particular matter
in question. The defendant can be held liable as a result of either the
actions that are taken, or the actions that are not taken.
Some personal injury actions revolve around legal
causation derived from a concept of intentional conduct, whereby it is
generally held that if one intentionally harms another, or knows that the
conduct which is engaged in causes a substantial likelihood that harm will
result, liability for the resulting harm will in fact attach. Other personal
injury actions have as their legal causation a looser concept of fault called
negligence. Under a negligence theory, in comparison, one is liable for the
results of actions, or inaction, where an ordinary person in the same position
should have foreseen that the conduct would create an unreasonable risk of
harm to others. Still other types of personal injury actions are based on
strict liability, a no-fault system where liability may attach regardless of
the fault of the various parties, including the plaintiff.
In some situations, the defendant's conduct, while
questionable, does not rise to a level that entitles the plaintiff to a
recovery. For example, if a plaintiff knowingly and willfully chooses to
encounter a known hazard, the law holds that he or she has "assumed the risk
of injury" and therefore the defendant is not liable. This theory applies for
instance in a case where the plaintiff walks on an obvious build up of snow
and ice caused by the defendant property owner's failure to shovel his
sidewalk, falls and breaks her hip, and is unable to recover for her injuries
because she knew of the hazardous condition and willingly chose to encounter
it. Plaintiffs are denied recovery in other cases if their subjective belief
about a situation does not match an objective "reasonable person" standard.
For instance, where the defendant approaches the plaintiff and states "I might
poke you in the eye if you wear that red sweater again," it is likely that no
actionable assault occurred due to the fact that there was no immediate threat
of harm that caused reasonable apprehension on the part of the plaintiff.
Personal injury law can involve many different types
of claims, theories, and principles. Some of the more common, or interesting,
types of personal injury actions include:
Animal bites can result in the animal
owner's liability to the person who is bitten or who is injured while trying
to avoid a bite.
Assault and battery are two intentional
torts that involve improper contact with another, without permission or
consent, or the threat of such contact.
Aviation accidents quite often result in
either serious injury or death. When these accidents occur, serious
questions regarding the liability of the airline, its employees, or the
government may arise.
Defamation and privacy are two separate
causes of action that concern the rights of individuals to have their names
and reputations protected, and also to have their privacy preserved.
Motor vehicle accidents raise numerous
questions as to the liability of one participant to another and also raise
interesting questions regarding who should be responsible for covering the
losses.
Premises liability concerns the
responsibilities of owners and possessors of property to safeguard others
from dangerous conditions or hazards on the property and to prevent others
from being injured while on the property.
Property damage causes of action concern
the rights of owners or possessors of property to protect their property
from damage, theft or intrusion.
Railroad accidents may result in personal
injury or death and subject the railroad to liability.
Slip and fall cases are very common causes
of action and relate closely to the duty of an owner or possessor of land to
maintain the property in a safe manner for the benefit of others lawfully
entering upon the land.
Wrongful death actions may be brought by
the dependents or beneficiaries of a deceased individual against the party
whose action or inaction was causally related to the death.
Back to Top
DISCLAIMER: This site and any information contained
herein is intended for informational purposes only and should not be construed
as legal advice. Seek competent legal counsel for advice on any legal matter.
Back to Main
