Civil Litigation Midterm

Tort

A wrongful injury to a person or property

Civil Litigation

Any litigation that is not criminal

Litigation

When parties go to battle against each other in a court or other tribunal

How much of civil litigation are torts?

90%

Tortfeasor

A person who commits a tort

Broad Categories of Torts

- Negligence

- Intentional torts

- Strict liability

Intentional Torts

Deliberate actions

An intentional wrong against a person

Strict Liability

Liability w/o intent or negligence

NYS Civil Courts

- Town or village justice courts

- City courts

- Supreme courts

- Appellate division

- Court of appeals

How many Supreme courts are there in NYS?

62

How many Appellate Division courts are there in NYS?

4

Ethics and Responsibilities of Paralegal

- All employees have the same ethical responsibilities as the attorney

-Confidentiality

- Conflict checks

- Practicing w/o a license

Negligence

Failure to be reasonable and prudent

Resonably

Having good judgment

Prudently

Thinking before acting

Elements of Negligence

- A duty of care

- Breach of that duty

- Causation

- Damages

ABCD

Duty

We have a duty to all foreseeable victims within reasonable proximity

Jury decides what reasonable proximity looks like

Palsgraf v. Long Island Railroad

Established the "zone of danger"

What is unique about special relationships?

They have a higher level of duty

Examples of Special Relationships (6)

- Employer/employee

- Parent/child

- Teacher/student

- Innkeeper/guest

- Doctor/patient

- Common carrier/passenger

Duty of Care in Special Relationships

Duty to be a reasonable ______ (parent, teacher, etc.)

Good Samaritan Doctrine

There is no duty to help someone who is in harm

If you try to help someone reasonably and they get hurt in the process, you are usually protected

Good Samaritan Distinction

Doctrine does not apply to professionals

New York Good Samaritan Rule

If you call 911 to save a life no arrest will be made for underage drinking or illegal drug use

Breach of Duty

A person's actions or omissions are unreasonable or imprudent

Jury decides what that looks like

What two groups hold a lower duty of care?

- Children

- Physically disabled

Causation

Cause-in-fact, or "but/for causation"

Without this fact, would this have happened?

Proximate Cause

The most connected reason

Must establish what is the main reason why the incident occurred

Liebeck v. McDonalds

McDonalds coffee case

Combined Forces

Two or more parties acted in concert, either simultaneously or sequentially

If Simultaneous

All torts happening at the same time (bar fight)

Everyone is responsible, so everyone contributes to damages

If Sequential

Torts are happening in sequence of each other (rear end pile up)

The most proximate cause covers damages

Bridges v. Parrish

Woman is shot by boyfriend, her family sues his parents for allowing him access to their gun- loses bc parents did not have authoritative duty to warn the girlfriend that their son was violent w/ other girlfriends

Compensatory Damages

Compensates for out of pocket expenses

- Most damages

General Damages

Subset of compensatory damages

Typical, expected damages (hospital bills, car repairs)

Specific Damages

Compensatory damages that are specific to the case

Hedonic Damages

Compensates for loss of life's pleasures

Completely up to jury to decide

Examples of Hedonic Damages

- Pain and suffering

- Loss of consortium (loss of spousal intimacy)

Nominal Damages

There are no real damages, so the jury awards $1 out of principle

Punitive Damages

Damages as punishment

- Done against large companies

Who usually has the burden of proof?

Plaintiff

What is the burden of proof on the plaintiff in civil cases?

Preponderance of the evidence

Prima Facie Evidence

Sufficient evidence (on its face) is presented to plaintiff to move to hear the defendant's case

MUST cover all 4 elements of breach of duty

Burden of Rejoinder

Once plaintiff has proven prima facie evidence, the defendant has to rebut the plaintiff's case

What occurs when prima facie evidence is not met?

Motion to dismiss

Two Types of Cases Where Defendant Presents Case First

- Res ipsa loquitor

- Negligence per se

Res Ipsa Loquitor

"The thing speaks for itself"

Negligence occurs, but the plaintiff is unconscious or otherwise unaware of how it occurred, so defendant must go first to present their case

Most often in medical malpractice

Elements of Res Ipsa Loquitor Case

1. Defendant must have been in exclusive control

2. Type of injury would not have happened absent negligence

3. Defendant is in the better position to prove lack of negligence

What was the first res ipsa loquitor case?

Byrne v. Boadle (Great Britain 1863)

Negligence Per Se

"Negligence as a rule"

Breaking a law, rule, or ordinance in your negligence

Statute that was broken must have been meant for that purpose

Examples of Negligence Per Se

- Running a red light

- Not putting a fence around a pool

Who was a higher duty of care?

Professionals

Professional and Examples (8)

An occupation that requires special education, training, and licensure

- Medical

- Legal

- Podiatric

- Engineering

- Dental

- Education (higher ed)

- Accounting

- Architecture

What are professionals sued for instead of negligence?

Malpractice

Types of Medical Malpractice (12)

- Abandonment

- Prescription errors

- Improper, missed, or delayed diagnosis

- Sexual assault of patient

- Medical instruments

- Anesthesia errors

- Lack of informed consent

- Fall or restraint injuries

- Surgical errors

- Record-keeping errors

- Hospital's failure to supervise

- Hygiene issues

Abandonment (medical malpractice)

Doctors must refer you to another doctor before moving on

What is the most common type of medical malpractice?

Improper, missed, or delayed diagnosis

What does NYS require before a medical malpractice suit can be filed?

A medical expert to review the file

Hospital Responsibility

Only residents are employees of the hospital, all other doctors are contracted to use hospital facilities, so hospitals can only be sued when the resident is the issue

Respondeat Superior

Vicarious liability

- Contractors (most doctors) do not fall under this unless the hospital knew or should have known of prior issues or risks

Medical Malpractice Tort Reform (4)

- Some states require doctors to notify patients and disclose errors

- Some states have caps on pain and suffering

- Some states require expert certification (NYS)

- Some states impose sanctions for frivolous actions (NYS)

Certificate of Merit

Signed affidavit from a medical expert that the case is not frivolous

Required in NYS for medical malpractice cases to move forward

Statute of Limitations in Medical Malpractice cases

2.5 years

Legal Malpractice

The attorneys fails to act as a reasonable attorney

Statute of Limitations in Legal Malpractice cases

3 years

Characteristics of Legal Malpractice (4)

- Very difficult to prove (attorney judgment rule)

- Expert highly recommended but not required

- Attorney-client privilege goes out the window

- Infrequently sued

Vicarious Liability

Suing someone other than the person who did wrong

4 Types of Vicarious Liability

- Motor vehicle liability

- Hospital/employee

- Premises liability

- Employer/employee

Motor Vehicle Liability

Suing the owner in addition to the driver

What question determines if employer/employee vicarious liability applies

Was the employee within the scope of their employment at the time of the incident?

Jury must decide

Who falls under employer/employee vicarious liability?

Employees, not contractors

Detour

Punching out for a break- still within the scope of employment

Frolic

Punching out for the day- not within scope of employment

Coming and Going Rule

Employer is not responsible for what you do on the way to or from work

Unless using a company car (company property)

Premises Liability

You as a landowner may or may not be responsible for injuries occurring on your property

3 types of People who may be on your property

- Trespassers

- Licensees

- Invitees

Licensees

Someone who has permission to be on your property

Invitees

Business guests

- Customers, patients, clients, patrons

What duty is owed to trespassers

None

Attractive Nuisance

Only time a duty of care is owed to trespassers

There is something on your property that would make a children want to come on your property

What duty is owed to licensees?

To fix any known dangers

What duty is owed to invitees

To find and fix any dangers

Open and Obvious Doctrine

Exception to the duty owed to invitees

Hazard was so obvious plaintiff should have known better

Uddin v. Embassy Suites Hotel (Ohio 2007)

Established open and obvious doctrine

Parents let children swim in green pool and kid drowned cuz parents couldn't see him- that's on parents

Negligent Infliction of Emotional Distress

Must prove to a jury that the actions were so outrageous and obvious that the actions would cause damages

Hard to prove, done when it's easy to prove the victim isn't faking it

Murphy v. Lord Thompson Manor, Inc.

NIED case

Bride planned whole wedding, then venue said they didn't save the date

Defenses to Negligence (4)

- Statute of limitation

- Contributory negligence

- Comparative negligence

- Assumption of Risk

When does statute of limitations start?

When injury is or should have been known

Statute of Limitation for Malpractice Cases

2.5 years

except legal malpractice- 3 years

Contributory Negligence

If the plaintiff was at all responsible, the case is thrown out

- No longer exists and replaced with comparative negligence

Comparative Negligence

Plaintiff's responsibility is taken into account and pro rated upon their negligence

- if plaintiff is 40% responsible, they pay 40% of damages

Assumption of Risk

The plaintiff should have known that what they are doing is dangerous

ex: bungee jumping, sky diving

How can an intentional tort be both criminal and tortious?

Criminally to serve justice, tort to repay damages

Battery

The unpermitted, unprivileged, offensive touching of another

Offensive

A jury must decide what a reasonable person would consider offensive

Unpermitted

Must have permission, including implied permission

- Some people have implied permission to hug

- Must be informed consent

When can you not sue for injuries resulting from offensive contact?

Legal actions in sports

When can injuries from medical procedures be battery?

When consent is not informed

ex: not knowing a medication could cause health issues

When can you not give consent?

Under the influence of drugs or alcohol

Privileged

The operation of law that allows people to touch you w/o permission