Personal Injury Litigation
 Tort Law
 Litigation
 Insurance Law
1
P.I. Cases
 A lawsuit (or potential lawsuit) resulting from
injuries caused by the tort of another.
 Compare: Workers’ Compensation
2
Parties and Attorneys
 Plaintiff
 Defendant  (Tortfeasor)
 Plaintiffs Attorneys
 Defense Attorneys
3
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
4
TORT CATEGORIES
 Intentional

requires intent
 Negligence

violation of “reasonable person standard”
 Strict Liability


liability without fault
public interest
5
Sources of Tort Law
 Statutes
 Case Law
6
Tort vs. Crime
 Act--may be the same
 Purpose
 Standard of Proof
 Interest violated
 Procedural rules
7
Tort vs. Contract
 Contract = Agreement
 Tort = Obligation imposed by law
8
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
9
Preliminary
Considerations
Read chapters 3 & 4 in Nolo Press text
10
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
11
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
12
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
13
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/
14
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
15
Automobile Insurance
 Liability
 Medical Payments (Med pay)
 Comprehensive
 Collision
 Uninsured Motorist (U.M.)
 Underinsured Motorist
16
Plaintiff’s insurance
Fault vs. No-Fault provisions
 Subrogation rights of no-fault provisions
17
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
18
Bad Faith
 First Party vs. Third Party claims
 Failure to pay claim within policy limits
19
Avoiding Bad Faith by Carrier
 Reservation of rights
 Declaratory Relief Action
20
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
21
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
22
Intentional Torts
 Intent



intend consequences or result--not harm
I.e. intentionally running a red light
I.e. pulling a chair out from someone
23
Transferred Intent
 Substitute for intent
 T intends to punch A, but A ducks and T hits
B
24
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)
25
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
26
Battery--Cause of Action
 Harmful or offensive
 contact or touching
27
Contact
 Doesn’t always mean “touching” of two
individuals
 Awareness of contact not necessary
28
Harmful or Offensive
 Distinguish inadvertent touching
 Harmful or offensive = not wanted


Kissing
Medical care
29
Defenses
 Consent
 Capacity to consent





Minority = sexual contact; medical treatment
Mental capacity
Voluntariness
Scope of consent
Knowing—

Medical care—knowing all consequences
 Emergency care
30
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
31
Defenses
 Defense of Property



Not deadly force
Must be reasonable
“Booby traps”—never allowed
 Regaining property


Fresh pursuit
Property taken wrongfully
32
Assault
 Intentional
 Causing of Apprehension or fear
 Of harmful or offensive
 Contact
 Defendant must appear to have present
ability to carry out threat
33
Defenses
 Same as with battery
34
False Imprisonment/False Arrest
 Intentionally
 Confining
 Another
35
Defenses
 Legal Right

Police vs. Private Citizen
 Shopkeeper’s Privilege—California
 Consent, etc.
36
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
37
Sexual Harrassment
 Cal Civ Code §§51.9, 52
 (differs from sexual battery)
38
Sexual Harassment—Cal Civ Code
51.9. (a) A person is liable in a cause of action for sexual harassment 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 sexual harassment 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
39
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
40
Stalking
 CC 1708.7
 Follow, alarm or harass
 General damages, special, punitive and
injunctive
41
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 to42
any other law.
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
43
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
44
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
45
Negligence
Read chapter 2 in Nolo Press text
Continue with reading chapter 7 on Web
site
46
NEGLIGENCE
Elements of Cause of Action
 DUTY
 BREACH OF DUTY
 CAUSATION: ACTUAL AND PROXIMATE
 DAMAGES
47
Jury Instructions*
 http://www.cand.uscourts.gov/juryinstructions
 www.courts.ca.gov (CACI)

Instructions 400 et seq

* New 2015
48
Duty
 Is defendant under any obligation to protect
plaintiff
 If so, what is that obligation

General duty found in CC 1714
 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
Often a subject of summary judgment motions
49
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
50
Hypothetical
 S a shopper is attacked in parking lot of
defendant shopping mall at night.
 Does mall owe her a duty? If so, what?
51
Special Situations of Duty
 Possessor of Land
 Rescue Doctrines
 Seller of Land
 Unborn Children
 Vicarious Liability
52
Possessor’s of Land
 Common law view

Depended on status of person coming on to
property
 California View

Does not depend on status
53
Common Law Classifications
 a trespasser is a person who enters or remains upon
land of another without a privilege to do so;
 a licensee is a person like a social guest who is not
an invitee and who is privileged to enter or remain
upon land by virtue of the possessor's consent,
 an invitee is a business visitor who is invited or
permitted to enter or remain on the land for a purpose
directly or indirectly connected with business dealings
between them
54
Rowland v. Christian (1968)
69 Cal.2d 108
The proper test to be applied to the liability of the possessor
of land in accordance with section 1714 of the Civil Code is
whether in the management of his property he has acted as a
reasonable man in view of the probability of injury to others,
and, although the plaintiff's status as a trespasser, licensee, or
invitee may in the light of the facts giving rise to such status
have some bearing on the question of liability, the status is
not determinative.
55
Attractive Nuisance Doctrine
 Dangerous condition on defendant’s property
that is likely to induce children to trespass
 Creates liability for homeowner to trespassing
child
 Not needed in California because of Rowland
v. Christian
56
Sellers of Land
 Duty to Disclose defects
 Cal Civ Code 1102 et seq.

All known defects
57
Rescue Doctrine
 Under common law—no duty unless


1. Special relationship exists
2. Defendant put plaintiff in perilous situation
58
Emergency Assistance
 Once undertaken, the party must use due
care even if a duty did not exist to begin with
 Good Samaritan Statutes




Cal. Civ. Proc. §1714.2---trained in CPR
Cal Civ Proc §17.14.5—Emergency Facilities
Limit liability for negligence but not gross
negligence
Cal. Veh. Code § 20003 –involved in accident
causing injury, must assist
59
Special Relationships
 Family
 Common carrier
 Defendant’s relationship with 3rd Party who
causes harm

Tarasoff case
 Tavern Owner
60
Cal Civ. Code 1714.1
 Parent liable for willful tort of child up to 25K
(to be adjusted for inflation)


In addition to other remedies
Parent might also be liable for own tort, I.e.
negligent failure to supervise
61
Cal Civ Code 1714.3
 Parent liable for damages caused by child
firing a gun –up to 30K
 Also liability for own tort
62
Tavern Owners
 Dram Shop Law
 Cal. Civ. Code


1714 Abrogates liability for tavernowners and
social hosts (but not if minors involved)
Based on proximate cause not duty
63
Unborn Children
 Refers to c/a by child after birth for injury to
Fetus
 Common law—no duty
 Most courts recognize some liability today
64
Acts of third parties
 Tort Actions v. Criminal Actions
 Tort: Weirum v. RKO
 (Third party injured by a driver racing to win a
radio contest—radio owed a duty to 3rd P)
 Criminal:
ANN M. v. PACIFIC PLAZA SHOPPING CENTER
 (Woman assaulted in parking lot of Plaza—Plaza owed no duty
absent prior similar incidents.)
65
Vicarious Liability
 Common law rule: Employer liable for torts of
employee committed in course and scope of
employment: Respondeat Superior

Exists in California
 Special Statutory Liability


Owner of Car—Amount limited
CC 1714.1—liability of parent for child
66
Negligence—Breach
 Determine the standard
 Examine conduct to see if it falls below
standard
67
Standard of Care
 Absent special circumstances:
 How a reasonable person would act under
the same or similar circumstances
68
Special Circumstances
 Mental deficiency—Not considered
 Physical disability—Is considered

Exceptions
 Children
 Reasonable “child”
 Emergency

Remember Good Samaritan Laws
 Professionals
69
Professionals
 “Locality rule”


Standard in community
Not followed in California
70
Government
 Except as otherwise provided by statute:
 (a) A public entity is not liable for an injury, whether such
injury arises out of an act or omission of the public entity
or a public employee or any other person.
 (b) The liability of a public entity established by this part
(commencing with Section 814) is subject to any immunity
of the public entity provided by statute, including this part,
and is subject to any defenses that would be available to
the public entity if it were a private person.
 Gov Code 815
71
Liability for Acts of Employees
 (a) A public entity is liable for injury proximately caused
by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission
would, apart from this section, have given rise to a cause
of action against that employee or his personal
representative.
 (b) Except as otherwise provided by statute, a public entity
is not liable for an injury resulting from an act or omission
of an employee of the public entity where the employee is
immune from liability.
 Gov Code 815.2 / 820
72
Government Liability for
Dangerous Conditions
 Not based on “Negligence” but on Code (Gov. 835 et seq)
 Must show: a dangerous condition; causation; foreseeable
risk and either:
 (a) A negligent or wrongful act or omission of an
employee of the public entity within the scope of his
employment created the dangerous condition; or
 (b) The public entity had actual or constructive notice of
the dangerous condition under Section 835.2 a sufficient
time prior to the injury to have taken measures to protect
against the dangerous condition.
73
Notice:

835.2.
(a) actual knowledge of the existence of the condition and
knew or should have known of its dangerous character.
 (b) A public entity had constructive notice of a dangerous
condition within the meaning of subdivision (b) of Section
835 only if the plaintiff establishes that the condition had
existed for such a period of time and was of such an
obvious nature that the public entity, in the exercise of due
care, should have discovered the condition and its
dangerous character.

74
Due Care:
 Evidence includes but is not limited to
 (1) Whether the existence of the condition and its dangerous character
would have been discovered by an inspection system that was
reasonably adequate (considering the practicability and cost of
inspection weighed against the likelihood and magnitude of the
potential danger to which failure to inspect would give rise) to inform
the public entity whether the property was safe for the use or uses for
which the public entity used or intended others to use the public
property and for uses that the public entity actually knew others were
making of the public property or adjacent property.
 (2) Whether the public entity maintained and operated such an
inspection system with due care and did not discover the condition.
75
Malpractice
 Medical (CACI 500 et seq.)
 Legal
 Other
76
Types of Conduct
 Failure to have skills
 Failure to use good judgment
 Failure to ask for essential information
 Failure to make referral
 Failure to keep abreast of changes
 Failure to follow up
 Failure to adhere to specialist standard
 Failure to get informed consent
77
Standard of Care
 Skill and learning commonly possessed by
members of the profession


Specialists—higher standard
“Locality Rule”
 Emergency Situations
 Good Samaritan Statutes
 Proving the standard of care
78
NEGLIGENCE PER SE
 Violation of statute

Statute meant to relate to conduct




(regulatory vs. revenue)
Causal link between violation and harm
Plaintiff member of class meant to be
protected
i.e. Building code/ vehicle code/leash laws vs.
business license.
79
Guest Statutes
 Limit liability of driver to “guest” passengers
 Abolished in California
80
Res Ipsa Loquitur
 Way of proving breach of duty without
showing defendant’s conduct
 I.e. Scissors left in surgery patient
81
Res Ipsa Loquitur
 Thing causing injury is in exclusive custody or
control of defendant
 Injury is of type that does not occur without
someone’s negligence
 Plaintiff did not voluntarily contribute to own
injury
 Defendant more able to explain

Only when more than one potential defendant
82
NEGLIGENCE--CAUSATION
 Actual Cause
 Proximate Cause
83
Actual Cause
 But for test (sine qua non)

Usually only one defendant
 Substantial Factor


Usually more than one defendant who
contribute to accident
Toxic torts
84
Example—Auto Accident
 X goes through intersection with green light
and is hit by Y who runs a red light
 X goes through intersection with green light.
The red light facing Y is not operating
85
Problem Areas
 Medical malpractice—failure to diagnose
 Product liability—design defects
86
PROXIMATE CAUSE
 The fact that defendant’s conduct is so
closely connected to the plaintiff’s injuries that
the defendant should be held liable
 Generally decided by “foreseeability”
87
NEGLIGENCE AND ORDINARY CAREDEFINITIONS
Negligence is the doing of something which a
reasonably prudent person would not do, or the
failure to do something which a reasonably
prudent person would do, under circumstances
similar to those shown by the evidence.
It is the failure to use ordinary or reasonable
care.
Ordinary or reasonable care is that care which
persons of ordinary prudence would use | TOP |
JURY INSTRUCTION 3.11
88
JURY INSTRUCTION 3.11
A TEST FOR DETERMINING THE QUESTION
OF NEGLIGENCE
One test that is helpful in determining whether or not
a person was negligent is to ask and answer the
question whether or not, if a person of ordinary
prudence had been in the same situation and possessed
of the same knowledge, [he] [or] [she] would have
foreseen or anticipated that someone might have been
injured by or as a result of [his] [or] [her] action or
inaction. If the answer to that question is "yes", and if
the action or inaction reasonably could have been
avoided, then not to avoid it would be negligence.
89
JURY INSTRUCTION 3.13.1
DUTY TO ANTICIPATE CRIMINAL
CONDUCT OF THIRD PERSON
When the circumstances are such that the
possibility of harm caused by the criminal conduct
of a third person is, or in the exercise of due care
should be, reasonably foreseeable, it is negligence
to fail to use reasonable care to prevent such
criminal act from causing [injury] [damage].
90
JURY INSTRUCTION 3.35
STANDARD OF CONDUCT FOR MINOR
A minor is not held to the same standard of care
as an adult. A minor is required to exercise the
degree of care which ordinarily is exercised by
minors of like maturity, intelligence and capacity
under similar circumstances. You must determine
whether the conduct of [plaintiff] [defendant]
_____________________ was such as might
reasonably have been expected of a minor of like
maturity, intelligence and capacity, acting under
similar circumstances
91
JURY INSTRUCTION 3.36
IMPAIRED PHYSICAL FACULTIESAMOUNT OF CAUTION
The amount of caution required of a person
whose physical faculties are impaired is the care
which a person of ordinary prudence with
similarly impaired faculties would use under
circumstances similar to those shown by the
evidence
92
JURY INSTRUCTION 3.76
CAUSE--SUBSTANTIAL FACTOR TEST
The law defines cause in its own particular way. A
cause of injury, damage, loss or harm is something
that is a substantial factor in bringing about an
injury, damage, loss or harm.
93
JURY INSTRUCTION 3.77
CONCURRING CAUSES
There may be more than one cause of an injury. When
negligent conduct of two or more personsor negligent conduct
and a defective product contribute concurrently as causes of an
injury,the conduct of each is a cause of the injury regardless of
the extent to which each contributes to the injury. A cause is
concurrent if it was operative at the moment of injury and acted
with another cause to produce the injury. [It is no defense that
the negligent conduct of a person not joined as a party was also a
cause of the injury]
94
WHEN THIRD PARTY'S INTERVENING NEGLIGENCE IS NOT A
SUPERSEDING CAUSE
If you find that defendant [__________ (first actor)] was negligent and that such
negligence was a substantial factor in bringing about an injury to the plaintiff but that
the immediate cause of the injury was the negligent conduct of [a third person]
[defendant __________ (second actor)], the defendant [__________ (first actor)] is not
relieved of liability for such injury if:
1. At the time of such conduct defendant [__________ (first actor)] realized or
reasonably should have realized that [a third person] [defendant [__________ (second
actor)] might so act; [or the risk of harm suffered was reasonably foreseeable]; or
2. A reasonable person knowing the situation existing at the time of the conduct of
the [third person] [defendant __________ (second actor)] would not have regarded it as
highly extra-ordinary that the [third person] [defendant __________ (second actor)] had
so acted; or
3. The conduct of the [third person] [defendant
__________ (second actor)] was not extraordinarily negligent and was a normal
consequence of the situation created by defendant [__________ (first actor)].
[Extraordinary means unforeseeable, unpredictable, and statistically extremely
improbable.]
95
JURY INSTRUCTION 3.80
WHEN PRECISE CAUSE CANNOT BE IDENTIFIED
If the plaintiff establishes by a preponderance of the evidence
all of the facts necessary to prove (1) that each of the defendants
was negligent, and (2) that the negligent act of one of the
defendants was a cause of plaintiff's injury, and (3) that the injury
was such that it could only result from the negligent act of one of
the defendants, and (4) that from the circumstances of the accident
the plaintiff cannot reasonably establish which defendant's
negligence was a cause of the injury, then you will find that each
defendant is liable for plaintiff's injury.
However, under such circumstances, a defendant is not liable if
[he] [she] establishes by a preponderance of the evidence all of
the facts necessary to prove that [his] [her] negligence was not a
cause of plaintiff's injury
96
Proximate Cause--Analysis
 Direct Causation

Usually proximate cause exists
 Intervening Cause

Dependent Intervening Cause


Usually proximate cause exists
Independent Intervening Cause

Proximate cause may or may not exist
97
Intervening Causes--Dependent
 Dependent on original tortfeasor

Rescue
Med care/malpractice
Escape attempts

Liability usually exists


98
Intervening Causes-Independent
 Foreseeable—Liability Exists


Foreseeable negligence of others
Foreseeable criminal activity of others
 Not Foreseeable—Superseding



Acts of God
Unforeseeable acts of others
Gross med mal
99
Dram shop Act—Calif.
 Cal Civ. Code §1714 (b) (c)
 Furnishing alcohol does is not proximate
cause of injury to others

Exception: Minors
100
Eggshell Rule
 You take your plaintiff as you find him
 Liability extends to all injuries
101
Damages
 Compensatory


General
Special
 Punitive
 Nominal
102
Damages
 3333.2. (a) In any action for injury against a health
care provider based on professional negligence, the
injured plaintiff shall be entitled to recover
noneconomic losses to compensate for pain,
suffering, inconvenience, physical impairment,
disfigurement and other nonpecuniary damage. (b) In
no action shall the amount of damages for
noneconomic losses exceed two hundred fifty
thousand dollars ($250,000).
103
General Damages
 Pain and suffering
 Loss of use of limb
 Scarring
 Loss of society and companionship
104
Special Damages
 Out of pocket expenses—past and future
 Future: Must be reasonably certain
105
Collateral Source Rule
 Plaintiff is entitled to special damages without
regard to payment from another source

Defendant shouldn’t benefit from Plaintiff’s
insurance or other benefits
 Collateral Source may seek reimbursement
(subrogation)
106
Punitive (Exemplary) Damages
 Cal Civ Code 3294

Oppression, fraud, malice
107
1) "Malice" means conduct which is intended by
the defendant to cause injury to the plaintiff or
despicable conduct which is carried on by the
defendant with a willful and conscious
disregard of the rights or safety of others.
2) "Oppression" means despicable conduct that
subjects a person to cruel and unjust hardship
in conscious disregard of that person's rights.
3) "Fraud" means an intentional
misrepresentation, deceit, or concealment of a
material fact known to the defendant with the
intention on the part of the defendant of thereby
depriving a person of property or legal rights or
otherwise causing injury.
108
Property Damage
 Fair market value
 Not replacement
109
Loss of Consortium
 Derivative claim of spouse
 Not allowed for children in California

(but parents can sue for medical bills)
110
Assessment of Damages
 Medical
 Copies of all bills
 Med reports
 Compulsory Medical Exam
 Loss of consortium
 Loss Wages
 Employed by another
 Self-employed
111
Wrongful Death
 Survival statute vs. Wrongful Death
 Survival—Injured (deceased) claim survives

In California only special damages survive
 Wrongful Death


Action by heirs
More common action
112
Wrongful Death Heirs CCP§
377.60.
 (a) The decedent's surviving spouse, domestic partner, children,
and issue of deceased children, or, if there is no surviving issue
of the decedent, the persons, including the surviving spouse or
domestic partner, who would be entitled to the property of the
decedent by intestate succession.
 (b) Whether or not qualified under subdivision (a), if they were
dependent on the decedent, the putative spouse, children of the
putative spouse, stepchildren, or parents. As used in this
subdivision, “putative spouse” means the surviving spouse of a
void or voidable marriage who is found by the court to have
believed in good faith that the marriage to the decedent was
valid.

cont.
113
Cont. (heirs)
 (c) A minor, whether or not qualified under
subdivision (a) or (b), if, at the time of the
decedent's death, the minor resided for the
previous 180 days in the decedent's
household and was dependent on the
decedent for one-half or more of the minor's
support
114
Wrongful Death Damages
 Loss of society and comfort
 Loss of monetary contribution
115
Emotional Distress
 Physical injury often required
 Traditional Exceptions: corpses; collection
agencies; mistransmission of message
California: If conduct is such that one could
easily believe mental distress
Witnesses/Bystanders: Zone of danger or close
relative
116
Calculating Damages
 Future Damages


Adjust for inflation
Discount for present value
 Structured settlement

Often involve annuities
117
Mitigation of Damages
118
Expenses of Litigation
 Costs
 Attorney Fees



Contingent Fees
California Rules
Limited Fees—Minors and Med Malpractice
119
Defenses to Negligence
 Contributory Negligence—Complete Bar
 Comparative Negligence-Reduces Recovery
 Assumption of Risk –Bar
 Immunity – Bar
 S.O.L. - Bar
120
Contributory Negligence
 Abolished in California in Li v. Yellow Cab
 Exceptions to Rule (where it exists)

Last Clear Chance
121
Comparative Negligence
 Pure Comparative (California)
 50% Rule
122
Assumption of Risk
 Willingly taking a chance that harm will occur
 California: If Assumption of Risk is a form of
contributory negligence, it is treated like
comparative negligence and reduces
recovery rather than bar all recovery
 Non-contrib Assumption of Risk still exists in
Californi
123
Assumption of Risk
 Express Assumption

Signing a release
 Implied Assumption of Risk



Conduct
Reasonable (RIAR) vs. Unreasonable
Unreasonable = Comparative Negligence
124
Assumption of Risk—Calif.
 Knight vs. Jewitt
 Primary vs. Secondary
 Primary
 Situations where Def owes no duty of care
 Dangerous sports or other activities
 Secondary
 Where D owes a duty of care and breaches it
 Usually a form of comparative negligence
125
Defenses to Malpractice
 Same as to negligence
 Statutes of Limitation are often problems
126
Immunity
 Governmental

Federal torts Claim Act allows many suits but
disallows some
 Disallowed: discretionary acts; misdelivery of mail,
intentional torts



State: California Government Code 815
Local Government—
Public officials
127
Immunity
 Interspousal—generally abolished

But generally excepted from insurance coverage
 Parent-Child
128
Statutes of Limitations
 CCP 312 et seq
129
S.O.L
 Special Statutes exist for:
 Domestic violence
 Exposure to asbestos
 Actions against convicted felons (related to conviction
 Minor for birth or pre-birth injuries
 Legal Malpractice
 Medical Malpractice
 Dalkon Shield
130
CCP 335.1
 Within two years: An action for assault, battery, or
injury to, or for the death of, an individual caused
by the wrongful act or neglect of another
131
CCP 340
 Within one year:
 3) Libel, slander, false imprisonment, seduction of a
person below the age of legal consent,
132
Childhood Sexual Abuse
 In an action for recovery of damages suffered as a
result of childhood sexual abuse, the time for
commencement of the action shall be within eight
years of the date the plaintiff attains the age of
majority or within three years of the date the plaintiff
discovers or reasonably should have discovered that
psychological injury or illness occurring after the age
of majority was caused by the sexual abuse,
whichever period expires later, for any of the
following actions:
133
Legal Malpractice—CCP 340.6
 1 year from date of discovery or 4 years from
wrongdoing whichever occurs first
 Several exceptions
134
Medical Malpractice
 CCP 340.5
 1 year from date of discovery or 3 years from
malpractice whichever occurs first
 Special Statutes for children:

actions by a minor under the full age of six years
shall be commenced within three years or prior to
his eighth birthday whichever provides a longer
period
 Several Exceptions to both!
135
Tolling of Statute
 Absence of Defendant
 Minority or insanity

Not if Defendant is government
 Imprisonment

Not if Def. Is government
 Order of Restitution
136
Claim/Notice Requirements
 Suits against public entity
 Suits against deceases
 Suits against doctors—notice only
137
Legal Malpractice
 Must prove the underlying case in addition to
legal malpractice
138
Strict Liability
 Liability without fault
 Abnormally dangerous (ultrahazardous
activities)
 Animals
 Products
139
Animals
 Trespassing animals
 Non-trespassing—only if dangerous



Inherently dangerous
Known dangerous propensities
California Statute
140
California Statute—Dog Bite
 3342. (a) The owner of any dog is liable for the damages
suffered by any person who is bitten by the dog while in a public
place or lawfully in a private place, including the property of the
owner of the dog, regardless of the former viciousness of the
dog or the owner' s knowledge of such viciousness. A person is
lawfully upon the private property of such owner within the
meaning of this section when he is on such property in the
performance of any duty imposed upon him by the laws of this
state or by the laws or postal regulations of the United States, or
when he is on such property upon the invitation, express or
implied, of the owner.
141
Abnormally Dangerous Activities
 High degree of risk
 Risk of serious harm
 Risk cannot be eliminated
 Not common activity
 Inappropriateness
 Value
142
Examples
 Abnormally dangerous


Crop dusting
Poisonour gasses
 Not Dangerous



Airplanes
Irrigation dam
Falling tree
143
Product Liability
 Not a Tort
 Refers to Injuries caused by a product
 Based on Torts of:


Negligence
Strict Liability
 Based on contract warranties
144
Damages
 Personal Injuries
 Property Damage
 Not Economic

Exception for recovery based on contract
145
Negligence
 Traditional concepts apply
 Negligence in manufacture, design,
packaging, inspection

Manufacturer responsible for component parts
 Based on fault
 Privity –not required
 Damages—not economic
146
Warranty
 Hybrid tort and contract
 Express or Implied
147
Strict Liability
 Manufacturer and retailer are strictly liabile for
injuries resulting from defective product.
 Rationale: Risk Assignment
148
Cause of Action
 Product sold
 Product defective
 Product caused injuries
 Defect existed at time product left defendant’s
hands
 Item manufactured or sold by defendant
149
Environmental/Toxic Torts
 Private Actions

Damages, Injunctions
 State A.G./District Attorney


Injunctions, Civil Penalties, Criminal
Private A.G. Actions
 EPA/U.S. Department of Justice
150
Environmental/Toxic Torts
 Negligence

Negligence Per se (State and Federal)
 Nuisance
 Strict Liability


Ultrahazardous Activities
Product
151
Nuisance
 Anything which is injurious to health, including, but
not limited to, the illegal sale of controlled
substances, or is indecent or offensive to the senses,
or an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or
property, or unlawfully obstructs the free passage or
use, in the customary manner, of any navigable lake,
or river, bay, stream, canal, or basin, or any public
park, square, street, or highway, is a nuisance.
152
Public Nuisance
 A public nuisance is one which affects at the
same time an entire community or
neighborhood, or any considerable number of
persons, although the extent of the
annoyance or damage inflicted upon
individuals may be unequal. Cal Civ. 3480
153
Private Nuisance
 Every nuisance not included in the definition
of the last section is private.
154
Possible Plaintiffs
 Purchaser
 User
 Bystander
155
Types of Defects
 Manufacture
 Design
 Warning
 Structural Defects
 Lack of Safety Features
156
Defenses
 Negligence:


Comparative
Assumption of Risk
 Warranty

Disclaimer
157
Defenses-Strict Liability
 Assumption of risk
 Unforeseeable use of product
158
Defenses to all Product Liability
 Statute of limitations
159
Misrepresentation
 Intentional—Fraud
 Negligent
 Innocent
160
Fraud
 Misrepresentation of Fact
 Intent to induce other party of rely on fact
 Knowledge of Falsity
 Justifiable reliance by other party
 Damages
161
Misrepresentation of Fact
 Misstatement
 Failure to disclose where duty exists


Fiduciary relationship
California real estate laws
 Fact


Not judgment, value, opinion
Exception; Expert
162
Intent
 Knowledge or knowledge that you don’t know
163
Proximate Cause/Reliance
 Victim must justifiably rely on representation
164
Negligent Misrepresentation
 All elements the same except intent
 Statement negligently made

Real estate brokers
165
Innocent Misrepresentation
 Generally no tort action
166
Relationship to Contract Law
 Any misrepresentation is grounds to disaffirm
the contract
167
Defamation
 Invasion of reputation of person or group
resulting from libel or slander
 Cal. Civ. Code §44 et seq
168
New York Times v. Sullivan
 Added constitutional element to defamation
 Deals with Public Officials (later cases
extended to public figures)
 Requires actual malice


Knowledge of falsity
Reckless disregard for truth
169
Libel
 45. Libel is a false and unprivileged
publication by writing, printing, picture, effigy,
or other fixed representation to the eye, which
exposes any person to hatred, contempt,
ridicule, or obloquy, or which causes him to
be shunned or avoided, or which has a
tendency to injure him in his occupation.
170
Libel
 45a. A libel which is defamatory of the plaintiff without
the necessity of explanatory matter, such as an
inducement, innuendo or other extrinsic fact, is said
to be a libel on its face. Defamatory language not
libelous on its face is not actionable unless the
plaintiff alleges and proves that he has suffered
special damage as a proximate result thereof.
Special damage is defined in Section 48a of this
code.
171
Slander
 46. Slander is a false and unprivileged publication, orally
uttered, and also communications by radio or any mechanical or
other means which: 1. Charges any person with crime, or with
having been indicted, convicted, or punished for crime; 2.
Imputes in him the present existence of an infectious,
contagious, or loathsome disease; 3. Tends directly to injure him
in respect to his office, profession, trade or business, either by
imputing to him general disqualification in those respects which
the office or other occupation peculiarly requires, or by imputing
something with reference to his office, profession, trade, or
business that has a natural tendency to lessen its profits; 4.
Imputes to him impotence or a want of chastity; or 5. Which, by
natural consequence, causes actual damage.
172
Special Harm—Special Damages
 Not Required



Libel
California limits to libelous on face
Slander per se
 Required



Slander (except for slander per se)
Calif: Libelous but not on its face
Matters of Public Concern
173
Libelous on face/Slander per se
 Allegations that plaintiff




Engaged in criminal activity
Suffers venereal or other such disease
Unfit to conduct business
Sexual misconduct
174
Elements of Cause of Action
 Reputation harmed
 Statement interpreted as referring to plaintiff
 One interpretation must be defamatory
 False statement
 Publication
 Malice if required
175
The Statement
 Tendency to harm reputation
 Reasonable interpretation
 Statement must be False
 Statement of fact not opinion
 Refer to a living person
176
Publication
 Read or heard or seen by someone other
than plaintiff
 Every repetition is also a publication
 Malice if public figure
177
Public Figures
 Politicians
 Performers
 People cast into limelight or news
178
Damages
 Pecuniary loss (specials)
 Non-pecuniary (general damages)
 Punitive--Malice
179
Retraction Statutes
 Cal Civ. Code 48a

For general damages against newspaper or
radio, plaintiff must request retraction w/20
days of learning of libel

Publisher has 3 weeks to retract
180
Privileges
 Privilege: Allows one to make defamatory statement w/o
liability.
 Cal. Civ. Code 47





Discharge of official duty
Judicial Proceedings
Legislative proceedings
Official proceeding authorized by law
Communication, without malice, to one interested
 Includes job references
181
Invasion of Privacy
 Appropriation of Plaintiff’s name for
defendant’s financial gain
 Public disclosure of private life
 Unreasonable intrusion
 False Light
182
Defamation--Property
 Trade Libel

False statement about business or goods
 Slander of Title

False statement in reference to property rights
183
Handling the P.I. Case
Attorney’s Role
The P.I. Case
 No “cappers” or “ambulance chasing”
 The initial interview

Determine factual basis for cause of action





Insurance information (P and D)
Injury information
Retainer Agreement/Letter





Not always possible
Names/info re witnesses
Must be in writing
Set out scope of representation
Establish attorney fees
Establish liability for costs
Written summary of interview
The P.I. Case cont.
 Completing the initial interview
 Advice/information to client
 Calendaring (tickling) for SOL and other dates
 Letter to D’s insurance (or to D if insurance unknown)
 If D has no insurance, then verify U.M. coverage
 Investigation
 Sometimes private investigators
 Obtain copies of police reports
 Interview witnesses
 Locate other witnesses?
 Relevant photographs
 Google searches? (i.e. NTSB/NHTSB)
The P.I. Case cont.
 When medical treatment ends, settlement
negotiations


Demand letter
Informal face to face negotiation
 Settlement
 Compromise and Release (C and R)
 Settlement check


Trust account issues
Disbursement: Liens, attorney fees and costs, client
CCPm877.7—Determination of
Good Faith
 Any party entitled to court hearing before
commencement of trial or
 Settling party can give notice to all of
settlement and application for determination
of good faith or settlement



Opposing parties can then file a motion
Court can decide on affidavits
Appealable through writ of mandate
188
Demand Letter
 Offer to settle case
 Basis of liability
 Special Damages
 Injuries
 Always attach copies of specials and medical
report
189
Issues with a Minor Plaintiff
 Court approval required for


Attorney fees (generally limited)
Settlement (Minor’s Compromise)


Judicial Council Form
Often court hearing required
 Lawsuits: Guardian ad Litem



Must be appointed
Usually a parent
Judicial Council Form
P.I. Litigation
 Pre-Litigation Claim/Notice Statutes

Government Entity– Gov Code 900 et seq.
 Gov. Code 800 et seq = California Tort Claim Act
Decedents—Prob. Code §550-555
Allows Plaintiff to proceed against insurance
company rather than estate if claim is within
policy limits; serve insurance company
-- Medical malpractice—90 day notice

191
Litigation—State Court
 File/present all claims
 File Complaint
 Optional Judicial Council Forms




Auto Accidents, Product Liability, Premises Liability,
General Negligence
County where accident happened or defendant
resides
Prayer
Issues with a Minor Plaintiff: Petition for Guardian
ad Litem
 Have Summons Issued
Service
 Personal
 Substituted
 Acknowledgement and Waiver
 Publication
 Out of State
Responsive Pleadings
 Answer
 Optional Judicial Council Form
 Demurrer
 Motions
 Cross Complaints

Answers/ demurrers/motions
 Time for Response
Discovery: CCP 2016 et seq.
 Interrogatories: Judicial Council Form+35
Specially Prepared
 Demand for Production/Inspection
 Depositions


Party or Non Party
Records
 Demand for Medical Exam
 Request for Admissions: Judicial Council
Form
 Exchange of Expert Information
Discovery—Limited Jurisdiction
 CCP §94
 Combination of 35 Interrogatories, Demands
to Produce and Admissions
 One deposition per party
 Med Exam and Expert Disclosure
 Case Questionnaire
 Request for Statement Identifying Witnesses
and Evidence
Pre Trial Proceedings
 Alternative Dispute Resolution (Arbitration,
Mediation, NE etc.)
 Case Management Conferences
 Settlement Conferences
 CCP 998 Offers
Pre trial motions
 Summary Judgment Motion (CCP 437c)



Common defense motion
“plaintiff can’t prove case”
Typical motion papers + Statement of
Undisputed Facts
Trial Procedures
 Trial Notebook
 Prepare proposed jury instructions

(CACI—www.courts.ca.gov)
 Subpoena witnesses
 Subpoena documents
 Notify Experts
Post Trial Procedures
 Motions

New Trial; Judgment N.O.V.; Additur, Remittitur
 Collection
 Appeal
Litigation Alternatives
 Binding Arbitration


U.M.
Agreement


Many medical practitioners include in forms
American Arbitration Association
 http://resources.lawinfo.com/en/Videos/index.
html
202
Vicarious Liability
 Liability for torts of another even though no
fault of one’s own
 A form of strict liability
 Respondeat Superior
203
Employer-Employee
 Employer vicariously liable for torts of
employee committed in course and scope of
employment



Negligent torts
Strict Liability torts
Intentional Torts

Only if in furtherance of employer’s business
204
Scope of Employment
 No liability if employee on “frolic of his own”


Liability resumes when employee returns to
job
I.e. detours
205
Employers-Independent
Contractors
 Independent Contractor defined: hired to produce a
result; all actions not subject to control; label not
important
 General Rule—No liability
 Exceptions




Nondelegable duties—owners of land
Peculiar Risk Doctrine
Illegal Acts
Physicians—not in California
206
Statutory Vicarious Liability
 Owners of Automobiles


Parents Veh. Code 17707
Permissive drivers Veh. Code 17150 et seq
 Parents Civ. Code 1714.1 et seq.
207
Joint Venture/Partnership
 Agents of one another in pursuing joint
venture or partnership business.
208
Joint and severally liable
 If two or more defendants acted jointly or
concurrently to cause an indivisible harm,
they are each liable to plaintiff for whole
amount.

Rule does not apply is harm apportionable
 Plaintiff can only recover once
 Rule has exceptions in California
209
California—Prop 51
 Cal Civ Code 1430-1432
 Establishes several liability for non-economic
damages

Liability according to fault
210
Contribution
 CCP875-880
 Right where judgment is joint
 Effect of Release ( 877)



Must be in good faith
Reduces liability of others
Releases settling tortfeasor from all liability
211
Sliding Scale Settlements
 CCP 877.5
 Agreement between plaintiff and some
defendants, but not all, limiting liability of the
agreeing defendants to an amount which is
dependent upon the amount of recovery
which plaintiff is able to recover from the
nonagreeing defendant
212
Sliding Scale
 Parties must promptly notify court
 At trial judge can disclose agreement to jury
 At least 72 hours prior to entering agreement,
notice must be given to all non-settling
defendants
213