Personal Injury Litigation

1. Personal Injury Litigation • Tort Law • Litigation • Insurance Law

2. P.I. Cases • A lawsuit (or potential lawsuit) resulting from injuries caused by the tort of another. • Compare: Workers’ Compensation

3. Parties and Attorneys • Plaintiff • Defendant  (Tortfeasor) • Plaintiffs Attorneys • Defense Attorneys

4. TORT • Civil wrong resulting in injury for which victim receives compensation in form of money damages • Injury • Personal (physical/mental) • property--real, personal, intellectual • reputation

5. TORT CATEGORIES • Intentional • requires intent • Negligence • violation of “reasonable person standard” • Strict Liability • liability without fault • public interest

6. Sources of Tort Law • Statutes • Case Law

7. Tort vs. Crime • Act--may be the same • Purpose • Standard of Proof • Interest violated • Procedural rules

8. Tort vs. Contract • Contract = Agreement • Tort = Obligation imposed by law

9. Overview of Tort Case • Investigation & Research (facts & law) • Settlement efforts--demand letter • complaint filed • answer/response filed • cross-complaints/answers • discovery • trial • post trial proceedings

10. Preliminary Considerations Read chapters 3 & 4 in Nolo Press text

11. Preliminary Considerations • Fee Arrangements • Contingent fee: fee v. costs • Statutory limits: Minors, Medical Mal. • Requirement of writing • http://www.calbar.ca.gov/Attorneys/Forms.aspx • Investigation • Photos of scene/autos/plaintiff • Witness interviews & statements • Police reports • Identity of all defendants

12. Resources • Go to class website • www.deanza.edu/faculty/hames • Access folder for “civil litigation” • Access folder for California Supplement • Go to Part 2—read chapter 3

13. Preliminary Considerations, cont. • Defendant—public entity • Law & Form: http://www.vcgcb.ca.gov/claims/ (read information on site) • Under 10K and Caltrans—file with them • Notify defendant/insurance • Advice to plaintiff • Necessity of medical liens

14. Preliminary considerations • The uninsured/underinsured defendant • http://www.youtube.com/watch?v=ZaBwP9owNyk • U.M. cases • Arbitration • An Interesting Web site: • http://blogs.findlaw.com/injured/

15. Insurance • Automobile • Homeowners/Personal Liability • Product • Errors and Omissions • Umbrella Policies • Resource: • http://www.insurance.ca.gov/0100-consumers/0060-information-guides/0010-automobile/Auto-insurance-101.cfm

16. Automobile Insurance • Liability • Medical Payments (Med pay) • Comprehensive • Collision • Uninsured Motorist (U.M.) • Underinsured Motorist

17. Plaintiff’s insuranceFault vs. No-Fault provisions • Subrogation rights of no-fault provisions

18. Bad Faith Claims • Intentional Tort • If insurance carrier unreasonably delays payment on policy • If insurance carrier acts unconscionably toward insured • Carrier engages in unfair claims practices

19. Bad Faith • First Party vs. Third Party claims • Failure to pay claim within policy limits

20. Avoiding Bad Faith by Carrier • Reservation of rights • Declaratory Relief Action

21. Medical Records v. Report • Records—Doctor or Hospital notes • Report—Specially prepared by M.D. for purpose of litigation—contains prognosis and diagnosis ; Fee is charged for preparation

22. Tort Liability—Cal. Civ. Code 1714. (a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.

23. Intentional Torts • Intent • intend consequences or result--not harm • I.e. intentionally running a red light • I.e. pulling a chair out from someone

24. Transferred Intent • Substitute for intent • T intends to punch A, but A ducks and T hits B

25. Types of Intentional Torts • Torts against Persons • Battery, Assault, False imprisonment, intentional inflict of mental distress • Defamation (slander and libel); invasion of privacy; malicious prosecution and abuse of process • Torts against Property • trespass to land, trespass to chattels and conversion; • Property includes intellectual property (infringement)

26. Analyzing a Tort • Every tort has unique elements • this is what constitutes a “cause of action” or the prima facie right to sue • Every tort has defenses • defenses negate liability even though a “prima facie” case is present • Defenses are often confused and stated with the cause of action

27. Battery--Cause of Action • Harmful or offensive • contact or touching

28. Contact • Doesn’t always mean “touching” of two individuals • Awareness of contact not necessary

29. Harmful or Offensive • Distinguish inadvertent touching • Harmful or offensive = not wanted • Kissing • Medical care

30. Defenses • Consent • Capacity to consent • Minority = sexual contact; medical treatment • Mental capacity • Voluntariness • Scope of consent • Knowing— • Medical care—knowing all consequences • Emergency care

31. Defenses • Self-Defense • Actual • Reasonable Belief—Mistake • Limit of force allowable • Deadly force==prevent death or great bodily harm • California “Make my day” statute • Defense of Others

32. Defenses • Defense of Property • Not deadly force • Must be reasonable • “Booby traps”—never allowed • Regaining property • Fresh pursuit • Property taken wrongfully

33. Assault • Intentional • Causing of Apprehension or fear • Of harmful or offensive • Contact • Defendant must appear to have present ability to carry out threat

34. Defenses • Same as with battery

35. False Imprisonment/False Arrest • Intentionally • Confining • Another

36. Defenses • Legal Right • Police vs. Private Citizen • Shopkeeper’s Privilege—California • Consent, etc.

37. Intentional Infliction of Emotional Distress • Conduct must be outrageous or extreme • Thin-skinned plaintiff • Today—often part of job/sex harassment • Requires some sort of “verification” • I.e. psychiatrist

38. Sexual Harrassment • Cal Civ Code §§51.9, 52 • (differs from sexual battery)

39. Sexual Harassment—Cal Civ Code 51.9. (a) A person is liable in a cause of action for sexualharassment under this section when the plaintiff proves all of the following elements: (1) There is a business, service, or professional relationship between the plaintiff and defendant. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons: (A) Physician, psychotherapist, or dentist. For purposes of this section, "psychotherapist" has the same meaning as set forth in paragraph (1) of subdivision (c) of Section 728 of the Business and Professions Code. (B) Attorney, holder of a master's degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer. (C) Executor, trustee, or administrator. (D) Landlord or property manager. (E) Teacher. (F) A relationship that is substantially similar to any of the above. (2) The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe. (3) There is an inability by the plaintiff to easily terminate the relationship. (4) The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2). (b) In an action pursuant to this section, damages shall be awarded as provided by subdivision (b) of Section 52. (c) Nothing in this section shall be construed to limit application of any other remedies or rights provided under the law. (d) The definition of sexualharassment and the standards for determining liability set forth in this section shall be limited to determining liability only with regard to a cause of action brought under this section.

40. Sexual Battery • CC 1708.5 • Offensive contact with intimate part of another • Offensive contact—offends reasonable sense of personal dignity • General, special, punitive damages and injunctive

41. Stalking • CC 1708.7 • Follow, alarm or harass • General damages, special, punitive and injunctive

42. Damages 52. (a) Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51 or 51.5, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than one thousand dollars ($1,000), and any attorney' s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51 or 51.5. (b) Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following: (1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages. (2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any action brought by the person denied the right, or by the Attorney General, a district attorney, or a city attorney. (3) Attorney's fees as may be determined by the court. (e) Actions brought pursuant to this section are independent of any other actions, remedies, or procedures that may be available to an aggrieved party pursuant to any other law.

43. Federal Statutes • Employment Discrimination • 42 U.S.C. §§ 2000 et seq • Civil Rights Violations • 42 U.S.C. §1983 et seq • Private v. Gov’t Action • www.justice.gov

44. Defamation • Untrue statement that exposes a person to exposes any person to hatred, contempt, ridicule, • Libel • Slander • Cal. Civ. Code 44 et seq. • Public Figures: NY Times Case—requires malice

45. Expectation of Privacy • Causing harm to another by • 1. an intentional and offensive intrusion into the person’s private life, or • 2. an intentional disclosure of offensive or objectionable private facts not of public concern, or • 3. an intentional publication portraying the person in a false light, or • 4. the unauthorized use of person’s name or image for personal benefit

46. Negligence Read chapter 2 in Nolo Press text Continue with reading chapter 7 on Web site

47. NEGLIGENCEElements of Cause of Action • DUTY • BREACH OF DUTY • CAUSATION: ACTUAL AND PROXIMATE • DAMAGES

48. Jury Instructions • www.netlawlibraries.com • http://www.ce9.uscourts.gov/web/sdocuments.nsf/civ • www.courts.ca.gov (CACI) • Instructions 400 et seq

49. Duty • Is defendant under any obligation to protect plaintiff • If so, what is that obligation • Whether a duty is owed is a question of law—the judge and not jury decide this question • Unfortunately, many courts take different approaches and often confuse with proximate cause

50. When a Duty Exists • Direct relationship of Plaintiff and Defendant • Relationship is very broad here • I.e. driver of car • “Foreseeable Plaintiff” • Created by Statute • I.e. owner of automobile