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BBR Title Slide

BBR Title Slide. T ORT L AW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM. Spring 2006 INSTRUCTOR: TROY R. SZABO. T ORT L AW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM. COURSE REVIEW. WHAT IS A TORT?. TORT: A wrongful injury to a person or his/her property. Or

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BBR Title Slide

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  1. BBR Title Slide TORT LAW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM Spring 2006 INSTRUCTOR: TROY R. SZABO

  2. TORT LAW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM COURSE REVIEW

  3. WHAT IS A TORT?

  4. TORT: A wrongful injury to a person or his/her property. Or A civil wrong against another

  5. “Person” may include an actual living person or a business, such as a partnership or corporation.

  6. BROAD CATEGORIES OF TORT LAW: • NEGLIGENCE • INTENTIONAL TORTS • STRICT LIABILITY • DEFENSES + Special Tort Actions

  7. Negligence Actions Covered • Simple Negligence • Negligent Infliction of Emotional Distress • Res Ipsa Loquitor • Negligence per se • Premises Liability • Vicarious Liability

  8. Intentional torts covered • Assault • Battery • False Imprisonment • Intentional Infliction of Emot. Distress • Fraud and Misrepresentation • Abuse of Process • Invasion of Privacy • Defamation • Trespass to land • Trespass to chattel • Conversion

  9. Strict Liability • Domesticated Animal Ownership • Wild Animal Ownership • Products Liability

  10. Special Tort Actions Covered • Nuisances • Private • Public

  11. Stepping Back… ORDINARY CARE: That degree of care that would be exercised by a reasonably prudent person under the same or similar circumstances.

  12. Put differently, “Negligence” is: • Doing something that a reasonably careful person would not do (a negligent act) OR • Failing to do something that a reasonably careful person would do (a negligent omission).

  13. COMMON ELEMENTS OF ALL TORT CASES: • DUTY • BREACH OF DUTY • CAUSATION • DAMAGES

  14. PUBLIC POLICY OBJECTIVES IN TORT LAW

  15. Accountability: Protecting persons and property • Deterrence: Minimum standards of social conduct • Allocating Losses: Placing the economic burden where it can best be afforded

  16. ANALYZING TORT CASES

  17. CASE ANALYSIS: GENERAL TO SPECIFIC Example: Customer walks up to a store clerk and strikes him until he collapses

  18. CASE ANALYSIS: GENERAL TO SPECIFIC • General tort topic: Example: intentional • Specific tort: Example: Battery • Issues framed by facts: A customer strikes a store clerk • Rule of law: Unwanted touching = battery • Apply rule to facts: The beating = unwanted touching

  19. HOW A CIVIL CASE PROGRESSES • COMPLAINT/PETITION • ANSWER • DISCOVERY • PRETRIAL PROCEDURES AND MOTIONS • ALTERNATIVE DISPUTE RESOLUTION • TRIAL • POST-TRIAL AND APPEAL

  20. COMPLAINT OR PETITION A “PLEADING” FILED BY PLAINTIFF IN COURT THAT INITIATES A LAWSUIT. IN CALIFORNIA, CALLED A “COMPLAINT.” MUST BE SERVED ON DEFENDANT; GENERALLY SERVICE IS HAND DELIVERY BY AUTHORIZED OFFICER (USUALLY A SHERIFF OR DEPUTY). CAN ALSO SERVE BY MAILING. 4. NATURAL PERSON IS SERVED “IN PERSON.” CORPORATION IS SERVED BY SERVING “REGISTERED AGENT,” PRESIDENT OR VICE-PRESIDENT.

  21. COMPLAINT CONT’D: STATUTE OF LIMITATIONS: FOR MOST INJURY AND PROPERTY DAMAGE CASES = 2 YEARS STATUTE OF LIMITATIONS: FOR DEFAMATION, FALSE ARREST = 1 YEAR LIMITATIONS PERIOD GENERALLY BEGINS TO RUN WITH DATE OF THE INCIDENT IN QUESTION

  22. DISCOVERY DISCLOSURES – BASIC REQUIRED INFORMATION. INTERROGATORIES REQUESTS FOR PRODUCTION REQUESTS FOR ADMISSION MOTION FOR INDEPENDENT MEDICAL EXAMINATION DEPOSITIONS ON WRITTEN QUESTIONS ORAL/VIDEO DEPOSITIONS

  23. PRETRIAL PROCEDURES AND MOTIONS COURT ISSUES ON ITS OWN, OR AT REQUEST OF ONE OR MORE PARTIES, A CASE MANAGEMENT DOCUMENT SETS DEADLINES, INCLUDING A SETTLEMENT CONFERENCE AND TRIAL SETTING CONFERENCE. A CASE MAY BE PUT ON THE “FAST TRACK” – GOES TO TRIAL WITHIN A YEAR OF FILING. POSSIBLE JOINDER OF ADDITIONAL PARTIES – ADDITIONAL DEFENDANTS, INTERVENORS OR THIRD PARTY DEFENDANTS

  24. PRETRIAL PROCEDURES AND MOTIONS CONT’D MOTIONS AND RESPONSES FILED BY THE PARTIES ASKING THE JUDGE TO MAKE A RULING OR ORDER ON SOME MATTER RELATING TO THE CASE. EXAMPLE: MOTION FOR SUMMARY JUDGMENT OR DEMURRER. • PRETRIAL CONFERENCE: i.e., MOTIONS IN LIMINE.

  25. TRIAL JURY OR NON-JURY JURY SELECTION (VOIR DIRE), IF APPLICABLE OPENING STATEMENTS PRESENTATION OF EVIDENCE CHARGE CONFERENCE COURT’S CHARGE CLOSING ARGUMENTS CLOSING ARGUMENTS DELIBERATIONS VERDICT

  26. POST-TRIAL AND APPEAL MOTION FOR ENTRY OF JUDGMENT OR JUDGMENT N.O.V. MOTION FOR NEW TRIAL NOTICE OF APPEAL REQUEST FOR TRANSCRIPT AND STATEMENT OF FACTS APPELLATE BRIEFS ORAL ARGUMENTS AT COURT OF APPEALS APPEAL TO HIGHER COURT – i.e., CALIFORNIA SUPREME COURT

  27. ALTERNATE DISPUTE RESOLUTION (ADR) • MINI-TRIAL OR SUMMARY JURY TRIAL • ARBITRATION • MEDIATION

  28. MINI-TRIAL OR SUMMARY JURY TRIAL BY AGREEMENT, CASE IS PRESENTED TO SMALL JURY IN ABBREVIATED FASHION. PARTIES AGREE IN ADVANCE TO BE BOUND BY OUTCOME OR TO USE OUTCOME TO AID SETTLEMENT NEGOTIATIONS.

  29. ARBITRATION CASE IS DECIDED BY NEUTRAL 3RD PARTY OTHER THAN JUDGE FOLLOWING ABBREVIATED PRESENTATION OF EVIDENCE.

  30. MEDIATION ASSISTED SETTLEMENT CONFERENCE LED BY NEUTRAL 3RD PARTY WHO ACTS AS FACILITATOR AND AN “ADVOCATE FOR SETTLEMENT.” MEDIATOR CANNOT DECIDE CASE OR MAKE RULINGS, BUT ASSISTS PARTIES IN REACHING MUTUALLY AGREEABLE RESOLUTION.

  31. WHAT A LAW OFFICE DOES IN HANDLING TORT LAWSUITS CONT’D INFORMATION BOTH SIDES TRY TO OBTAIN: • ACCIDENT REPORT, IF ANY • WITNESS STATEMENTS • PHOTOGRAPHS • MEDICAL RECORDS • MEDICAL BILLS • LOST WAGE INFORMATION • PROJECTION OF FUTURE LOSSES

  32. THE CONCEPT OF DUTY • USE REASONABLE CARE TO AVOID INJURING OTHERS OR THEIR PROPERTY • SCOPE OF DUTY: FORESEEABLE PLAINTIFFS, OR CLASS OF PERSONS TO BE PROTECTED • REASONABLE PERSON/REASONABLE CARE

  33. NEGLIGENCE: The failure to exercise ordinary care.

  34. ORDINARY CARE: That degree of care that would be exercised by a reasonably prudent person under the same or similar circumstances.

  35. WHO DECIDES HOW A REASONABLY PRUDENT PERSON WOULD HAVE ACTED?

  36. MATCHING SKILLS, DISABILITIES AND CIRCUMSTANCES

  37. PROFESSIONAL NEGLIGENCE OR “MALPRACTICE”

  38. SPECIAL DUTY BASED UPON SPECIAL RELATIONSHIP • EMPLOYER/EMPLOYEE • PARENT/TEACHER • INNKEEPER/GUEST • COMMON CARRIER/PASSENGER

  39. PROOF OF NEGLIGENCE THE BURDEN OF PROOF IS ON PLAINTIFF

  40. RES IPSA LOQUITUR (rays-ipsuh-lo-kwit-tour) • (“Res Ipsa” for short) • Elements: • Exclusive control of defendant • Ordinarily would not occur without negligence • Hospital burn example, p. 51 • Asphalt example, p. 52

  41. VIOLATION OF STATUTE • NEGLIGENCE PER SE • MAY PRECLUDE DEFENDANT FROM INTRODUCING EVIDENCE OF DEGREE OF CARE • SWIMMING POOL EXAMPLE, p. 53

  42. PROXIMATE CAUSE • CAUSE-IN-FACT • FORESEEABILITY

  43. FORESEEABILITY In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.

  44. CONTRIBUTORY NEGLIGENCE: The plaintiff’s own negligence which caused or contributed to cause the occurrence or her/his injury.

  45. PROPORTIONATE OR COMPARATIVE RESPONSIBILITY • PLAINTIFF AND TORTFEASOR(S) • MULTIPLE TORTFEASORS • EACH IS A CONTRIBUTING CAUSE

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