n. a person who is authorized to act for another (the agent’s principal) through employment, by contract or apparent authority. The importance is that the agent can bind the principal by contract or create liability if he/she causes injury while in the scope of the agency. Who is an agent and what is his/her authority are often difficult and crucial factual issues.
v. the threat or attempt to strike another, whether successful or not, provided the target is aware of the danger. The assaulter must be reasonably capable of carrying through the attack. In some states if the assault is with a deadly weapon (such as sniping with a rifle), the intended victim does not need to know of the peril. Other state laws distinguish between different degrees (first or second) of assault depending on whether there is actual hitting, injury or just a threat. “Aggravated assault” is an attack connected with the commission of another crime, such as beating a clerk during a robbery or a particularly vicious attack. 2) n. the act of committing an assault, as in “there was an assault down on Third Avenue.” Assault is both a criminal wrong, for which one may be charged and tried, and civil wrong for which the target may sue for damages due to the assault, including for mental distress.
n. the actual intentional striking of someone, with intent to harm, or in a “rude and insolent manner” even if the injury is slight. Negligent or careless unintentional contact is not battery no matter how great the harm. Battery is a crime and also the basis for a lawsuit as a civil wrong if there is damage. It is often coupled with “assault” (which does not require actual touching) in “assault and battery.”
n. any profit or acquired right or privilege, primarily through a contract. 2) in worker’s compensation the term “benefit” is the insurance payment resulting from a fatal accident on the job, while “compensation” is for injury without death. 3) in income taxation, anything that brings economic gain. 4) “fringe benefits” may be part of the compensation for employment other than salary or wages, and may include health or disability insurance. 5) v. to gain something, as “This sale will benefit Ken Murray.”
n. a person entering commercial premises for the purpose of doing business, rather than just taking a short cut to the next street. It is important since a business is liable to a business invitee for injury caused by dangerous conditions such as bad floors or oil on the linoleum. There is a presumption that anyone entering a retail store or restaurant in which one may browse is a business invitee unless there is evidence to the contrary.
n. 1) payment for work performed, by salary, wages, commission or otherwise. It can include giving goods rather than money. 2) the amount received to “make one whole” (or at least better) after an injury or loss, particularly that paid by an insurance company either of the party causing the damage or by one’s own insurer.
n. damages recovered in payment for actual injury or economic loss, which does not include punitive damages (as added damages due to malicious or grossly negligent action).
contemplation of death
n. the anticipation of death in a relatively short time due to age, illness, injury or great danger, which causes a person to make a gift, transfer property or take some other dramatic action. (Lawyers who like Latin call this causa mortis.) It can be important since such a gift or transfer can be subject to federal estate taxes.
n. 1) donation to a charity or political campaign. 2) the sharing of a loss by each of several persons who may have been jointly responsible for injury to a third party, who entered into a business which lost money or who owe a debt jointly. Quite often this arises when one responsible party pays more than his share and then demands contribution from the others in proportion to their share of the obligation. Example: three partners own equal shares in a building from which a cornice falls and injures Bobby Hardhat. One partner pays the demand of $9,000 for Hardhat’s injury; he is entitled to a contribution of $3,000 from each of his partners.
course of employment
adj. actively involved in a person’s employment at a particular time, most likely when an accident occurred, which is required to make a claim for work-related injury under state Worker’s Compensation Acts.
n. a violation of a law in which there is injury to the public or a member of the public and a term in jail or prison, and/or a fine as possible penalties. There is some sentiment for excluding from the “crime” category crimes without victims, such as consensual acts, or violations in which only the perpetrator is hurt or involved such as personal use of illegal drugs.
cruel and unusual punishment
n. governmental penalties against convicted criminal defendants which are barbaric, involve torture and/or shock the public morality. They are specifically prohibited under the Eighth Amendment to the U.S. Constitution. However, nowhere are they specifically defined. Tortures like the rack (stretching the body inch by inch) or the thumbscrew, dismemberment, breaking bones, maiming, actions involving deep or long-lasting pain are all banned. But solitary confinement, enforced silence, necessary force to prevent injury to fellow prisoners or guards, psychological humiliation and bad food are generally allowed. In short, there is a large gray area, in which “cruel and unusual” is definitely subjective based on individual sensitivities and moral outlook. The U.S. Supreme Court has waffled on the death penalty, declaring that some forms of the penalty were cruel and prohibited under the Furman case (1972), which halted executions for several years, but later relaxed the prohibition. The question remains if the gas chamber, hanging or electrocution are cruel and unusual. For instance, hanging is certainly cruel but was not unusual at the time the Bill of Rights was adopted.
n. the amount of money which a plaintiff (the person suing) may be awarded in a lawsuit. There are many types of damages. Special damages are those which actually were caused by the injury and include medical and hospital bills, ambulance charges, loss of wages, property repair or replacement costs or loss of money due on a contract. The second basic area of damages are general damages, which are presumed to be a result of the other party’s actions, but are subjective both in nature and determination of value of damages. These include pain and suffering, future problems and crippling effect of an injury, loss of ability to perform various acts, shortening of life span, mental anguish, loss of companionship, loss of reputation (in a libel suit, for example), humiliation from scars, loss of anticipated business and other harm. The third major form of damage is exemplary (or punitive) damages, which combines punishment and the setting of public example. Exemplary damages may be awarded when the defendant acted in a malicious, violent, oppressive, fraudulent, wanton or grossly reckless way in causing the special and general damages to the plaintiff. On occasion punitive damages can be greater than the actual damages, as, for example, in a sexual harassment case or fraudulent schemes. Although often asked for, they are seldom awarded. Nominal damages are those given when the actual harm is minor and an award is warranted under the circumstances. The most famous case was when Winston Churchill was awarded a shilling (about 25 cents) against author Louis Adamic, who had written that the British Prime Minister had been drunk at a dinner at the White House. Liquidated damages are those pre-set by the parties in a contract to be awarded in case one party defaults as in breach of contract.
n. dishonesty, fraudulent conduct, false statements made knowing them to be untrue, by which the liar intends to deceive a party receiving the statements and expects the party to believe and rely on them. This is a civil wrong (tort) giving rise to the right of a person to sue the deceiver if he/she reasonably relied on such dishonesty to the point of his/her injury.
n. the statement of a mortally injured person who is aware he/she is about to die, telling who caused the injury and possibly the circumstances (“Frankie shot me”). Although hearsay since the dead person cannot testify in person, it is admissible on the theory that a dying person has no reason not to tell the truth.
n. an increasingly popular basis for a claim of damages in lawsuits for injury due to the negligence or intentional acts of another. Originally damages for emotional distress were only awardable in conjunction with damages for actual physical harm. Recently courts in many states, including New York and California, have recognized a right to an award of money damages for emotional distress without physical injury or contact. In sexual harassment claims, emotional distress can be the major, or even only, harmful result. In most jurisdictions, emotional distress cannot be claimed for breach of contract or other business activity, but can be alleged in cases of libel and slander. Evidentiary problems include the fact that such distress is easily feigned or exaggerated, and professional testimony by a therapist or psychiatrist may be required to validate the existence and depth of the distress and place a dollar value upon it.
Federal Tort Claims Act
n. a statute (1948) which removed the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, giving jurisdiction to federal district courts.
n. an agreement reached by the parties to a lawsuit, usually in writing and/or read into the record in court, settling all issues. Usually there are elements of compromise, waiver of any right to reopen or appeal the matter even if there is information found later which would change matters (such as recurrence of a problem with an injury), mutual release of any further claim by each party, a statement that neither side is admitting fault, and some action or payment by one or both sides. In short, the case is over, provided the parties do what they are supposed to do according to the final settlement’s terms. With the glut of cases crowding court calendars and overwhelming the system and delays in getting to trial (due to three factors: increased criminal case load, increased litigious nature of society and an insufficient number of judges), judges encourage attempts to settle, including mandatory settlement conferences with judges or experienced settlement attorneys present.
Good Samaritan rule
n. from a Biblical story, if a volunteer comes to the aid of an injured or ill person who is a stranger, the person giving the aid owes the stranger a duty of being reasonably careful. In some circumstances negligence could result in a claim of negligent care if the injuries or illness were made worse by the volunteer’s negligence. Thus, if Jack Goodguy sees a man lying by the road, a victim of a hit and run accident, and moves the injured man, resulting in a worsening of the injury or a new injury, instead of calling for an ambulance, Goodguy may find himself on the wrong end of a lawsuit for millions of dollars.
adj. 1) not being able to perform any gainful employment due to congenital disability, illness (including mental), physical injury, advanced age or intellectual deficiency. This is significant in claims for worker’s compensation, disability insurance, or Social Security claims under “SSI.” 2) lacking the ability to understand one’s actions in making a will, executing some other document or entering into an agreement. A challenge to the validity of a will often turns on a claim that the person (now dead and unable to testify) lacked the capacity to understand what he/she owned, who were the “natural objects of his/her bounty” (close relatives primarily), that no one was able to dominate the testator’s (will writer’s) judgment so as to exert “undue influence.” Mental weakness may show lack of capacity to make a will, as can fear, intimidation or persistent drunkenness. Example: an old lady is kept well supplied with whiskey for several months by her greedy sisters, who finally convince her to change the will from benefitting her children to benefitting them when she is drunk and fearful they will cut off her supply. A court would probably find she had lacked capacity to decide to make the latest version of the will.
n. any harm done to a person by the acts or omissions of another. Injury may include physical hurt as well as damage to reputation or dignity, loss of a legal right or breach of contract. If the party causing the injury was either willful (intentionally causing harm) or negligent then he/she is responsible (liable) for payment of damages for the harm caused. Theoretically, potential or continuing injury may be prevented by an order of the court upon a petition for an injunction.
n. mental illness of such a severe nature that a person cannot distinguish fantasy from reality, cannot conduct her/his affairs due to psychosis, or is subject to uncontrollable impulsive behavior. Insanity is distinguished from low intelligence or mental deficiency due to age or injury. If a complaint is made to law enforcement, to the District Attorney or to medical personnel that a person is evidencing psychotic behavior, he/she may be confined to a medical facility long enough (typically 72 hours) to be examined by psychiatrists who submit written reports to the local superior/county/district court. A hearing is then held before a judge, with the person in question entitled to legal representation, to determine if she/he should be placed in an institution or special facility. The person ordered institutionalized at the hearing may request a trial to determine sanity. Particularly since the original hearings are often routine with the psychiatric findings accepted by the judge. In criminal cases, a plea of “not guilty by reason of insanity” will require a trial on the issue of the defendant’s insanity (or sanity) at the time the crime was committed. In these cases the defendant usually claims “temporary insanity” (crazy then, but okay now). The traditional test of insanity in criminal cases is whether the accused knew “the difference between right and wrong,” following the “M’Naughten rule” from 19th century England. Most states require more sophisticated tests based on psychiatric and/or psychological testimony evaluated by a jury of laypersons or a judge without psychiatric training. A claim by a criminal defendant of his/her insanity at the time of trial requires a separate hearing to determine if a defendant is sufficiently sane to understand the nature of a trial and participate in his/her own defense. If found to be insane, the defendant will be ordered to a mental facility, and the trial will be held only if sanity returns. Sex offenders may be found to be sane for all purposes except the compulsive dangerous and/or antisocial behavior. They are usually sentenced to special facilities for sex offenders, supposedly with counseling available. However, there are often maximum terms related to the type of crime, so that parole and release may occur with no proof of cure of the compulsive desire to commit sex crimes.
n. a contract (insurance policy) in which the insurer (insurance company) agrees for a fee (insurance premiums) to pay the insured party all or a portion of any loss suffered by accident or death. The losses covered by the policy may include property damage or loss from accident, fire, theft or intentional harm; medical costs and/or lost earnings due to physical injury; long-term or permanent loss of physical capacity; claims by others due to the insured’s alleged negligence (e.g. public liability auto insurance); loss of a ship and/or cargo; finding a defect in title to real property; dishonest employees; or the loss of someone’s life. Life insurance may be on the life of a spouse, a child, one of several business partners or an especially important manager (“key man” insurance), all of which is intended to provide for survivors or to ease the burden created by the loss of a financial contributor. So-called “mortgage” insurance is life insurance which will pay off the remaining amount due on a home loan on the death of the husband or wife. Life insurance proceeds are usually not included in the probate of a dead person’s estate, but the funds may be counted by the Internal Revenue Service in calculating estate tax. Insurance companies may refuse to pay a claim by a third party against an insured, but at the same time may be required to assume the legal defense (pay attorney’s fees or provide an attorney) under the doctrine of “reservation of rights.”
n. a person who comes onto another’s property, premises or business establishment upon invitation. The invitation may be direct and express or “implied,” as when a shop is open and the public is expected to enter to inspect, purchase or otherwise do business on the premises. It may be legally important, because an invitee is entitled to assume safe conditions on the property or premises, so the owner or proprietor might be liable for any injury suffered by the invitee while on the property due to an unsafe condition which is not obvious to the invitee (a latent defect) and not due to the invitee’s own negligence. An invitee is distinguished from a trespasser who cuts across the owner’s vacant lot, a person who comes into the store to use the bathroom (although a clever lawyer will claim this is a goodwill aspect to the business in which the public is implicitly invited), or a burglar who falls through a faulty skylight. Examples of failures unexpected by an invitee: a person falls through a covered-over well, faulty stairs, weak floors, slippery floors on rainy days (a favorite), spills of jam which are not promptly cleaned up although known to the management, lack of adequate security guards to protect against muggers, and various careless acts of retail employees.
n. walking across a street outside of marked cross-walks, and not at a corner, and/or against a signal light. If there is vehicle traffic or clear markings of a place to cross, this is a traffic misdemeanor subject to fine, and may be (but not conclusively) contributory negligence in the event of injury to the jaywalker by a vehicle.
joint and several
adj. referring to a debt or a judgment for negligence, in which each debtor (one who owes) or each judgment defendant (one who has a judgment against him/her) is responsible (liable) for the entire amount of the debt or judgment. Thus, in drafting a promissory note for a debt, it is important to state that if there is more than one person owing the funds to be paid, the debt is joint and several, since then the person owed money (creditor, promisee) can collect the entire amount from any of the joint signers of the note, and not be limited to a share from each debtor. If a party injured in an accident sues several parties for causing his/her damages, the court may find that several people were “jointly” negligent and contributed to the damages. The entire judgment may be collected from any of the defendants found responsible, unless the court finds different amounts of negligence of each defendant contributed to the injury. Defense attorneys should require the trier of fact (jury or judge sitting without a jury) to break down the amount of negligence of each defendant and the plaintiff if there is contributory negligence. Often the court will refuse to do so, allowing the plaintiff to collect from whichever defendant has the “deep pocket” (lots of money), and letting the defendant who pays demand contributions from the other defendants.
(also spelled kidnaping) n. the taking of a person against his/her will (or from the control of a parent or guardian) from one place to another under circumstances in which the person so taken does not have freedom of movement, will, or decision through violence, force, threat or intimidation. Although it is not necessary that the purpose be criminal (since all kidnapping is a criminal felony) the capture usually involves some related criminal act such as holding the person for ransom, sexual and/or sadistic abuse, or rape. It includes taking due to irresistible impulse and a parent taking and hiding a child in violation of court order. An included crime is false imprisonment. Any harm to the victim coupled with kidnapping can raise the degree of felony for the injury and can result in a capital (death penalty) offense in some states, even though the victim survives. Originally it meant the stealing of children, since “kid” is child in Scandinavian languages, but now applies to adults as well.
n. one of the most significant words in the field of law, liability means legal responsibility for one’s acts or omissions. Failure of a person or entity to meet that responsibility leaves him/her/it open to a lawsuit for any resulting damages or a court order to perform (as in a breach of contract or violation of statute). In order to win a lawsuit the suing party (plaintiff) must prove the legal liability of the defendant if the plaintiff’s allegations are shown to be true. This requires evidence of the duty to act, the failure to fulfill that duty and the connection (proximate cause) of that failure to some injury or harm to the plaintiff. Liability also applies to alleged criminal acts in which the defendant may be responsible for his/her acts which constitute a crime, thus making him/her subject to conviction and punishment. Example: Jack Jumpstart runs a stop sign in his car and hits Sarah Stepforth as she is crossing in the cross-walk. Jack has a duty of care to Sarah (and the public) which he breaches by his negligence, and therefore has liability for Sarah’s injuries, giving her the right to bring a lawsuit against him. However, Jack’s father owns the automobile and he, too, may have liability to Sarah based on a statute which makes a car owner liable for any damages caused by the vehicle he owns. The father’s responsibility is based on “statutory liability” even though he personally breached no duty. A signer of a promissory note has liability for money due if it is not paid and so would a co-signer who guarantees it. A contractor who has agreed to complete a building has liability to the owner if he fails to complete on time.
n. any official claim or charge against property or funds for payment of a debt or an amount owed for services rendered. A lien is usually a formal document signed by the party to whom money is owed and sometimes by the debtor who agrees to the amount due. A lien carries with it the right to sell property, if necessary, to obtain the money. A mortgage or a deed of trust is a form of lien, and any lien against real property must be recorded with the County Recorder to be enforceable, including an abstract of judgment which turns a judgment into a lien against the judgment debtor’s property. There are numerous types of liens including: a mechanic’s lien against the real property upon which a workman, contractor or supplier has provided work or materials, an attorney’s lien for fees to be paid from funds recovered by his/her efforts, a medical lien for medical bills to be paid from funds recovered for an injury, a landlord’s lien against a tenant’s property for unpaid rent or damages, a tax lien to enforce the government’s claim of unpaid taxes, or the security agreement (UCC-1) authorized by the Uniform Commercial Code. Most liens are enforceable in the order in which they were recorded or filed (in the case of security agreements), except tax liens, which have priority over the private citizen’s claim.
n. law which gives a local state court jurisdiction over an out-of-state company or individual whose actions caused damage locally or to a local resident. The legal test is whether the out-of-state defendant has contacts within the state which are “sufficiently substantial.” An accident or injury within the state usually shows such a substantial contact. This is particularly important when a driver from one state is sued in another state for damages caused by his/her negligence there. It also can be employed if a product shipped from out-of-state fails, explodes or causes damage to a local person who sues in the state where he/she resides. The long-arm statute allows him/her to get local court jurisdiction over the defendant.
n. 1) the value placed on injury or damages due to an accident caused by another’s negligence, a breach of contract or other wrongdoing. The amount of monetary damages can be determined in a lawsuit. 2) when expenses are greater than profits, the difference between the amount of money spent and the income.
loss of consortium
n. the inability of one’s spouse to have normal marital relations, which is a euphemism for sexual intercourse. Such loss arises as a claim for damages when a spouse has been injured and cannot participate in sexual relations for a period of time or permanently due to the injury, or suffers from mental distress, due to a defendant’s wrongdoing, which interferes with usual sexual activity. Thus, the uninjured spouse can join in the injured mate’s lawsuit on a claim of loss of consortium, the value of which is speculative, but can be awarded if the jury (or judge sitting as trier of fact) is sufficiently impressed by the deprivation.
v. to inflict a serious bodily injury, including mutilation or any harm which limits the victim’s ability to function physically. Originally, in English common law it meant to cut off or permanently cripple a body part like an arm, leg, hand or foot. In criminal law, such serious harm becomes an “aggravated” assault, which is a felony subject to a prison term.
1) n. the criminal act of disabling, disfiguring or cutting off or making useless one of the members (leg, arm, hand, foot, eye) of another either intentionally or in a fight, called maiming. The serious nature of the injury makes mayhem a felony, which is called “aggravated assault” in most states. 2) v. to commit mayhem is to cause gross harm in an uncontrolled fashion.
n. mental suffering which includes fright, feelings of distress, anxiety, depression, grief and/or psychosomatic physical symptoms. It is distinguished from physical pain due to an injury, but it may be considered in awarding damages for physical injury due to a defendant’s negligence or intentional infliction of harm. Where there is no physical injury, damages can still be awarded for mental anguish if it is reasonable to presume such would naturally flow from the incident. Examples: holding a pistol to one’s head, any threat of bodily harm when it appears it could be carried out, swinging with a scythe even though the assailant missed, or witnessing injury or death to a loved one. There are also situations in which the obvious result of the alleged wrongdoing would be mental distress due to embarrassment or damage to one’s reputation through libel, and therefore damages can be awarded to the distressed party. However, there are limits: in general, breach of contract judgments cannot include damages for mental anguish due to the loss of a deal or employment. But then there is the case of the shop which failed to deliver the bridal gown in time for the wedding-mental anguish flows naturally (along with the bride’s tears) from such a breach.
n. a lesser crime punishable by a fine and/or county jail time for up to one year. Misdemeanors are distinguished from felonies, which can be punished by a state prison term. They are tried in the lowest local court such as municipal, police or justice courts. Typical misdemeanors include: petty theft, disturbing the peace, simple assault and battery, drunk driving without injury to others, drunkenness in public, various traffic violations, public nuisances and some crimes which can be charged either as a felony or misdemeanor depending on the circumstances and the discretion of the District Attorney. “High crimes and misdemeanors” referred to in the U.S. Constitution are felonies.
mitigation of damages
n. the requirement that someone injured by another’s negligence or breach of contract must take reasonable steps to reduce the damages, injury or cost, and to prevent them from getting worse. Thus, a person claiming to have been injured by another motorist should seek medical help and not let the problem worsen. If a tenant moves out before a lease has expired, a landlord must make reasonable attempts to re-let the property and take in some rents (which are credited against the amount remainder of the lease) to mitigate his/her loss.
n. failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not. Negligence is accidental as distinguished from “intentional torts” (assault or trespass, for example) or from crimes, but a crime can also constitute negligence, such as reckless driving. Negligence can result in all types of accidents causing physical and/or property damage, but can also include business errors and miscalculations, such as a sloppy land survey. In making a claim for damages based on an allegation of another’s negligence, the injured party (plaintiff) must prove: a) that the party alleged to be negligent had a duty to the injured party-specifically to the one injured or to the general public, b) that the defendant’s action (or failure to act) was negligent-not what a reasonably prudent person would have done, c) that the damages were caused (“proximately caused”) by the negligence. An added factor in the formula for determining negligence is whether the damages were “reasonably foreseeable” at the time of the alleged carelessness. If the injury is caused by something owned or controlled by the supposedly negligent party, but how the accident actually occurred is not known (like a ton of bricks falls from a construction job), negligence can be found based on the doctrine of res ipsa loquitor (Latin for “the thing speaks for itself”). Furthermore, in six states (Alabama, North Carolina, South Carolina, Tennessee, Virginia, Maryland) and the District of Columbia, an injured party will be denied any judgment (payment) if found to have been guilty of even slight “contributory negligence” in the accident. This archaic and unfair rule has been replaced by “comparative negligence” in the other 44 states, in which the negligence of the claimant is balanced with the percentage of blame placed on the other party or parties (“joint tortfeasors”) causing the accident. In automobile accident cases in 16 states the head of the household is held liable for damages caused by any member of the family using the car under what is called the “family purpose” doctrine. Nine states (California, New York, Michigan, Florida, Idaho, Iowa, Minnesota, Nevada, Rhode Island) make the owner of the vehicle responsible for all damages caused by a driver given permission to use the car, whether or not the negligent driver has assets or insurance to pay a judgment. Eight states (Connecticut, Massachusetts, New Jersey, Oregon, Rhode Island, Tennessee, Virginia, West Virginia) allow the owner to rebut a presumption that the driver was authorized to use the car. Negligence is one of the greatest sources of litigation (along with contract and business disputes) in the United States.
no fault insurance
n: a type of automobile insurance required of car owners by law in 19 states (New York, Michigan, Massachusetts, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Kansas, Kentucky, Maryland, Minnesota, New Jersey, North Dakota, Oregon, South Carolina, South Dakota) and the District of Columbia, in which the persons injured in an accident are paid basic damages by the company that insured the vehicle in which they were riding or by which they were hit as a pedestrian. The amount of damages to be paid by the insurance is limited to actual medical and rehabilitation expenses, lost wages and necessary expenses (such as loss of use of the vehicle) with a low maximum and for a limited period. In addition, an injured person can sue the negligent driver for medical costs above the amount of the insurance, pain and suffering if the injuries required medical treatment or resulted in permanent injury, broken bones or disfigurement, or wrongful death. All registered automobiles must be insured. The benefits of no fault include rapid payment of all medical expenses in most cases; elimination of lawsuits except in cases involving lesser injuries, very serious injury or death; and elimination of extensive and costly investigation, proof of negligence, medical reports and depositions. The statutes vary in states requiring “no fault” insurance. There have been legal challenges to the statutes, primarily suggesting that limitations on the right to sue or establishment of narrow categories of injury for which a claim of “pain and suffering” may be included in a lawsuit are unconstitutional. State courts have struck down those restrictions which were arbitrary or prevented legitimate claims. The fight over no fault insurance laws continues state by state, with the insurance companies and some court reform advocates (who believe “no fault” alleviates a clogging of the courts) favoring it, and trial attorneys either opposing the proposal outright or wanting much more leeway for filing lawsuits.
n. a danger or risk inherent in certain employments or workplaces, such as deep-sea diving, cutting timber, high-rise steel construction, high-voltage electrical wiring, use of pesticides, painting bridges and many factories. The risk factor may limit insurance coverage of death or injury while at work.
pain and suffering
n. the physical and mental distress suffered from an injury, including actual broken bones and internal ruptures, but also the aches, pain, temporary and permanent limitations on activity, potential shortening of life, depression and embarrassment from scarring, all of which are part of the “general damages” recoverable by someone injured by another’s negligence or intentional attack. The dollar value of damages for pain and suffering is subjective, as distinguished from medical bills, future medical costs and lost wages which can be calculated, called “special damages.”
n. the result of an injury which permanently reduces a person’s ability to function, but still permits some working or other activity. In worker’s compensation cases an injured worker is often awarded a percentage rating of permanent partial disability, which will entitle him/her to a money settlement. The percentage payoff is often based on a physician’s evaluation of what part of the person’s normal functioning is gone.
n. an injury which impairs the physical and/or mental ability of a person to perform his/her normal work or non-occupational activities supposedly for the remainder of his/her life. Under worker’s compensation laws (covering on-the-job injuries) once the condition is stable, a degree of permanent disability is established even if the employee is able to work despite the physical problem. Permanent disability is also one basis for awarding general damages in a lawsuit for injury suffered due to the negligence or intentional attack of another.
n. physical or mental damage which will restrict the employment and/or other activities of a person for the rest of his/her life. In a lawsuit to recover damages caused by the negligence or intentional wrongful act of another, a permanent injury can be a major element in an award of general damages.
n. injury to real or personal property through another’s negligence, willful destruction or by some act of nature. In lawsuits for damages caused by negligence or a willful act, property damage is distinguished from personal injury. Property damage may include harm to an automobile, a fence, a tree, a home or any other possession. The amount of recovery for property damage may be established by evidence of replacement value, cost of repairs, loss of use until repaired or replaced or, in the case of heirlooms or very personal items (e.g. wedding pictures), by subjective testimony as to sentimental value.
n. a happening which results in an event, particularly injury due to negligence or an intentional wrongful act. In order to prevail (win) in a lawsuit for damages due to negligence or some other wrong, it is essential to claim (plead) proximate cause in the complaint and to prove in trial that the negligent act of the defendant was the proximate cause (and not some other reason) of the damages to the plaintiff (person filing the lawsuit). Sometimes there is an intervening cause which comes between the original negligence of the defendant and the injured plaintiff, which will either reduce the amount of responsibility or, if this intervening cause is the substantial reason for the injury, then the defendant will not be liable at all. In criminal law, the defendant’s act must have been the proximate cause of the death of a victim to prove murder or manslaughter.
n. the means to achieve justice in any matter in which legal rights are involved. Remedies may be ordered by the court, granted by judgment after trial or hearing, by agreement (settlement) between the person claiming harm and the person he/she believes has caused it, and by the automatic operation of law. Some remedies require that certain acts be performed or prohibited (originally called “equity”); others involve payment of money to cover loss due to injury or breach of contract; and still others require a court’s declaration of the rights of the parties and an order to honor them. An “extraordinary remedy” is a means employed by a judge to meet particular problems, such as appointment of a referee, master or receiver to investigate, report or take charge of property. A “provisional remedy” is a temporary solution to hold matters in status quo pending a final decision or an attempt to see if the remedy will work.
adj., adv. extremely far off or slight. Evidence may be so remote from the issues in a trial that it will not be allowed because it is “immaterial.” An act which started the events which led to an accident may be too remote to be a cause, as distinguished from the “proximate cause.” Example: While Doug Driver is passing a corner a friend calls out to him causing him to look away, and then Doug looks back and in the middle of the block is hit by a truck backing out of a driveway. The momentary inattention is not a cause of the injury, and is called a “remote cause.”
res ipsa loquitur
(rayz ip-sah loh-quit-her) n. Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. Examples: a) a load of bricks on the roof of a building being constructed by Highrise Construction Co. falls and injures Paul Pedestrian below, and Highrise is liable for Pedestrian’s injury even though no one saw the load fall. b) While under anesthetic, Isabel Patient’s nerve in her arm is damaged although it was not part of the surgical procedure, and she is unaware of which of a dozen medical people in the room caused the damage. Under res ipsa loquitur all those connected with the operation are liable for negligence. Lawyers often shorten the doctrine to “res ips,” and find it a handy shorthand for a complex doctrine.
n. the rule of law that if a rescuer of a person hurt or put in peril due to the negligence or intentional wrongdoing of another (the tortfeasor) is injured in the process of the rescue, the original wrongdoer is responsible in damages for the rescuer’s injury. Example: Sydney Sparetire speeds on a mountain highway, and skids in front of Victor Victim, running Victim’s car off the bank, trapping Victim in the vehicle. Raymond Rightguy stops, ties a rope to the grill of his car, slides down and extricates Victim, but on the way up slips and breaks his arm, and then finds the grill is badly bent. The negligent Sparetire is liable to Rightguy for his broken arm (including medical expenses, loss of wages and general damages for pain and suffering) as well as the property damage to the car grill.
n. 1) technically a turbulent and violent disturbance of peace by three or more people acting together. 2) an assemblage of people who are out of control, causing injury or endangering the physical safety of others and/or themselves, causing or threatening damage to property and often violating various laws both individually and as a group. The common thread is that the people in a riot have the power through violence to break the public peace and safety, requiring police action. Often a riot is declared after the crowd has been informed by police officers that the people constitute an “unlawful assembly” and are ordered to “disperse” immediately (historically in England called “reading the riot act”). If the crowd does not disperse, its members become subject to arrest for the crime of rioting, disturbing the peace, resisting arrest or other separate crimes ranging from assault to unlawful possession of firearms.
n. 1) paid work by another person, either by contract or as an employee. “Personal services” is work that is either unique (such as an artist or actor) or based on a person’s particular relationship to employer (such as a butler, nanny, traveling companion or live-in health care giver). 2) the domestic activities of a wife, including the marital relationship (consortium), are legally considered “services” for which a deprived husband may sue a person who has caused injury to his wife. 3) the official delivery of legal documents (“service of process”) such as a summons, subpena, complaint, order to show cause (order to appear to show reasons why a judge should not make a particular order), writ (court order), or notice to quit the premises, as well as delivery by mail or in person of documents to opposing attorneys or parties, such as answers, motions, points and authorities, demands and responses.
n. a sudden statement caused by the speaker having seen a surprising, startling or shocking event (such as an accident or a death), or having suffered an injury. Even though the person who made the spontaneous exclamation is not available (such as he/she is dead or missing), a person who heard the exclamation may testify about it as an exception to the rule against “hearsay” evidence. The reason is that such an exclamation lacks planning and is assumed to have the ring of truth to it. Examples: “Chauncey shot him,” “my leg is broken,” “the blue Chevrolet hit the girl.”
statute of limitations
n. a law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state. Federal statutes set the limitations for suits filed in federal courts. If the lawsuit or claim is not filed before the statutory deadline, the right to sue or make a claim is forever dead (barred). The types of cases and statute of limitations periods are broken down among: personal injury from negligence or intentional wrongdoing, property damage from negligence or intentional wrongdoing, breach of an oral contract, breach of a written contract, professional malpractice, libel, slander, fraud, trespass, a claim against a governmental entity (usually a short time), and some other variations. In some instances a statute of limitations can be extended (“tolled”) based on delay in discovery of the injury or on reasonable reliance on a trusted person (a fiduciary or confidential adviser who has hidden his/her own misuse of someone else’s funds or failure to pay). A minor’s right to bring an action for injuries due to negligence is tolled until the minor turns 18 (except for a claim against a governmental agency). There are also statutes of limitations on bringing criminal charges, but homicide generally has no time limitation on prosecution. The limitations (depending on the state) generally range from 1 to 6 years except for in Rhode Island, which uses 10 years for several causes of action. Louisiana has the strictest limitations, cutting off lawsuit rights at one year for almost all types of cases except contracts. California also has short periods, usually one year, with two years for most property damage and oral contracts and four years for written contracts. There are also statutes of limitations on the right to enforce a judgment, ranging from five to 25 years, depending on the state. Some states have special requirements before a lawsuit can be filed, such as a written warning to a physician in a claim of malpractice, making a demand upon a state agency and then waiting for the claim to be denied or ignored for a particular period, first demanding a retraction before filing a libel suit, and other variations. Vermont protects its ski resorts by allowing only one year for filing a lawsuit for injuries suffered in a skiing accident as an exception to that state’s three-year statute of limitations for other personal injuries.
n. the pain, hurt, inconvenience, embarrassment and/or inability to perform normal activities as a result of injury, usually in the combination “pain and suffering,” for which a person injured by another’s negligence or wrongdoing may recover “general damages” (a money amount not based on specific calculation like medical bills but as compensation for the suffering which is subjective and based on the empathy of the trier of the facts-jury or judge sitting without a jury).
n. from French for “wrong,” a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm. Therefore tort law is one of the major areas of law (along with contract, real property and criminal law) and results in more civil litigation than any other category. Some intentional torts may also be crimes, such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft) and trespass on property and form the basis for a lawsuit for damages by the injured party. Defamation, including intentionally telling harmful untruths about another-either by print or broadcast (libel) or orally (slander)-is a tort and used to be a crime as well.
n. an action or process which is so inherently dangerous that the person or entity conducting the activity is “strictly liable” for any injury caused by the activity. Examples: working with high explosives or conducting a professional auto race on public streets.
n. a common neck and/or back injury suffered in automobile accidents (particularly from being hit from the rear) in which the head and/or upper back is snapped back and forth suddenly and violently by the impact. The injury is to the “soft tissues” and sometimes to the vertebrae, does not always evidence itself for a day or two, and can cause pain and disability for periods up to a year. The degree of injury and the pain and suffering from whiplash are often in dispute in claims and lawsuits for damages due to negligent driving.
Workers’ Compensation Acts
n. state statutes which establish liability of employers for injuries to workers while on the job or illnesses due to the employment, and requiring insurance to protect the workers. Worker’s compensation is not based on negligence of the employer, but is absolute liability for medical coverage, a percentage of lost wages or salary, costs of rehabilitation and retraining, and payment for any permanent injury (usually based on an evaluation of limitation). Worker’s’ Compensation Acts provide for a system of hearings and quasi-judicial determinations by administrative law judges and appeal boards. However, if worker’s’ compensation is granted, it becomes the only remedy against an employer and does not include general damages for pain and suffering. Thus, an injured worker may waive workers’ compensation and sue the employer for damages caused by the employer’s negligence. If a third party contributed to the damages, the injured worker may sue that party for damages even though he/she receives worker’s’ compensation, but recovery may be subject to a lien for moneys paid out by the workers’ compensation insurance company.