THE SELF-HELP GUIDE TO THE LAW Negligence and Personal Injury Law for Non-Lawyers

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2 THE SELF-HELP GUIDE TO THE LAW Negligence and Personal Injury Law for Non-Lawyers

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4 THE SELF-HELP GUIDE TO THE LAW Negligence and Personal Injury Law for Non-Lawyers J. D. Teller, Esq.

5 THE SELF-HELP GUIDE TO THE LAW Negligence and Personal Injury Law for Non-Lawyers J. D. Teller, Esq. Copyright by TellerBooks. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, including photocopying, recording, or copying to any storage and retrieval system, without express written permission from the copyright holder Edition ISBN (13) (paperback): ISBN (10) (paperback): ISBN (13) (Kindle): ISBN (10) (Kindle): ISBN (13) (epub): ISBN (10) (epub): X JuraLaw an imprint of TellerBooks TellerBooks.com/Time_Books Portions of this book were previously published as Law School Survival Guide, copyright TellerBooks DISCLAIMER: Although this book is designed to provide rigorously researched information, it is intended not as a definitive statement of the law, but rather, as a concise and general overview that will help readers to understand basic legal principles and find further information, if necessary. Because the law changes rapidly through new statutes and innovative judicial decisions, law books, including this one, may quickly become outdated. Furthermore, some decisions may be ambiguous and subject to differing interpretations and other sources may come to conclusions distinct from those presented herein. Nothing in this book forms an attorney-client relationship or is intended to constitute legal advice, which should be obtained through consultation with a qualified attorney.

6 Self-Help Guides to the Law Self-Help Guides to the Law explain the law in clear, concise terms to a popular audience of non-lawyers. Summarizing the key areas of the law with which readers are most likely to come into contact, the Guides broadly outline the statutes and cases that govern landlord-tenant relations, personal injury, contracts, family law, criminal law and constitutional law and procedure. With detailed references to sources for readers wishing to delve deeper, the Guides are ideal for readers wishing to better understand their legal rights and responsibilities, regardless of whether they ultimately opt to hire a lawyer. In addition to The Self-Help Guide to the Law: Contracts, Landlord-Tenant Relations, Marriage, Divorce, Personal Injury, Negligence, Constitutional Rights and Criminal Law for Non-Lawyers, readers may acquire the following individual titles: - The Self-Help Guide to the Law: Property Law and Landlord- Tenant Relations for Non-Lawyers - The Self-Help Guide to the Law: Contracts for Non-Lawyers - The Self-Help Guide to the Law: Negligence and Personal Injury Law for Non-Lawyers - The Self-Help Guide to the Law: Know Your Constitutional Rights - The Self-Help Guide to the Law: Criminal Law and Procedure for Non-Lawyers About the Imprint With a focus on international and comparative law, the JuraLaw imprint publishes monographs exploring public and private international law and overviews of the laws of various nations.

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8 Summary Contents TABLE OF CONTENTS... 9 CHAPTER 1. INTRODUCTION TO TORT LAW CHAPTER 2. STRICT LIABILITY CHAPTER 3. INTENTIONAL TORTS CHAPTER 4. NEGLIGENCE CHAPTER 5. THE DUTY OF CARE CHAPTER 6. PROVING BREACH CHAPTER 7. CAUSATION CHAPTER 8. DAMAGES CHAPTER 9. DEFENSES APPENDICES... 79

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10 TABLE OF CONTENTS ABBREVIATIONS CHAPTER 1. INTRODUCTION TO TORT LAW I. INTRODUCTION II. DEVELOPMENT OF LIABILITY BASED ON FAULT A. Traditional approach: the strict liability rule B. Later developments CHAPTER 2. STRICT LIABILITY I. INTRODUCTION A. Background B. Elements of a Prima Facie Case II. ANIMALS A. Wild Animals B. Domestic Animals III. ABNORMALLY DANGEROUS ACTIVITIES A. Overview B. Elements IV. LIMITATIONS (DEFENSES) A. Superseding Cause B. Unforeseeable Intervening Cause C. Contributory Negligence D. Assumption of the Risk CHAPTER 3. INTENTIONAL TORTS I. INTRODUCTION A. Characteristics B. Elements of the Plaintiff s Prima Facie Case II. INTENTIONAL TORTS A. Introduction B. Overview of Individual Intentional Torts C. Transfer of Intent III. PRIVILEGES (DEFENSES) A. Introduction B. Consensual Privilege: Consent C. Non-Consensual Privilege CHAPTER 4. NEGLIGENCE... 37

11 10 THE SELF-HELP GUIDE TO THE LAW I. INTRODUCTION...37 A. History...37 B. Elements...37 II. THE DUTY TO EXERCISE REASONABLE CARE...37 A. Introduction...37 B. Unforeseeability...37 C. Unreasonable Risks...38 III. THE STANDARD OF CARE...40 A. The Standard Objective Test...40 B. An Amalgum Subjective/Objective Test...41 C. The Standard for Professionals (Malpractice)...42 IV. CAUSES OF ACTION BASED ON NEGLIGENCE...44 A. Informed Consent...44 B. Negligent Infliction of Emotional Distress...46 CHAPTER 5. THE DUTY OF CARE...49 I. STATUTORY STANDARDS OF CARE...49 A. Introduction...49 B. Statutes Establishing Negligence Per Se...49 C. Classes of Statutes...49 D. The Applicability of a Statute...50 E. Effects of Statutes Adopted as Standards of Care...51 II. DUTY TO RESCUE...52 A. The Common Law Approach...52 B. Exceptions to the Common Law No Duty to Rescue Rule 53 III. PREMISES LIABILITY...54 A. Distinction between Invitees, Licensees and Trespassers...54 B. Distinction Merged...56 CHAPTER 6. PROVING BREACH...57 I. OVERVIEW...57 A. Introduction...57 B. Circumstantial evidence...57 II. RES IPSA LOQUITUR...59 A. Introduction...59 B. The Three Approaches to Res Ipsa Loquitur...60 C. Group Res Ipsa Loquitur...60 III. SUMMARY...60 A. Proving Breach...60 CHAPTER 7. CAUSATION...63 I. CAUSE-IN-FACT...63

12 TABLE OF CONTENTS 11 A. Sine Qua Non B. Proof of Causation C. Concurrent Causes II. PROXIMATE CAUSE A. Unforeseeable Consequences B. Intervening Acts and Superseding Causes C. Rescue Doctrine D. Public Policy: the Dram Shop Acts CHAPTER 8. DAMAGES I. DAMAGES FROM PERSONAL INJURIES AND MITIGATION A. Introduction B. Personal Injuries C. Collateral Source Rule D. Mitigation of Damages II. PUNITIVE DAMAGES A. Introduction B. Due Process CHAPTER 9. DEFENSES I. CONTRIBUTORY AND COMPARATIVE NEGLIGENCE A. Introduction B. Contributory Negligence C. Comparative Negligence II. ASSUMPTION OF THE RISK A. Express Assumption of the Risk B. Implied Assumption of the Risk C. The Different Kinds of Assumption of the Risk in Florida and in Other States APPENDICES THEMATIC INDEX TABLE OF CASES GLOSSARY... 87

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14 ABBREVIATIONS A AGI AP B C CIF Cl. CLEO Court (cap.) CP CR CSD CSI Ct. Ct. App. Ct. Chan. ED EI Eng. ES FLSA FMLA FQJ FRAP FRCP FRCrP FRE FS FSCS FSD FS EL FT H.L. JMOL JNOV JT K K.B. L L1 Lat. LE Grantee (for present estate/ future interest hypotheticals) Adjusted gross income Adverse possession Buyer Constitution Cause-in-fact Clause State Chief Law Enforcement Officer United States Supreme Court Court of Pleas (UK) Contingent remainder Common Scheme of Development Compelling state interest Court Court of Appeals Court of Chancery (England) Emotional distress Executory interest England Equitable Servitude Fair Labor Standards Act Family and Medical Leave Act Federal question jurisdiction Federal Rules of Appellate Procedure Federal Rules of Civil Procedure Federal Rules of Criminal Procedure Federal Rules of Evidence Fee simple absolute (fee simple) Fee simple on condition subsequent Fee simple determinable Fee simple on executory limitation Fee tail House of Lords (England) Judgment as a matter of law Judgment non obstante veredicto Joint tenant/tenancy Knowledge (criminal law) or Contract (all other law) King s Bench (UK) Loss in value First landlord Latin Life estate

15 14 THE SELF-HELP GUIDE TO THE LAW LED Life estate determinable LLC Limited liability company LLP Limited liability partnership LRM Least restrictive means MPC Model Penal Code MSAJ Motion to set aside the judgment N.B. Nota bene O Original owner, or grantor (in present estates and future interests) P Purpose or purchaser PJ Personal jurisdiction PJI Pattern Criminal Jury Instruction Q.B. Queen s Bench (UK) R Recklessness RAP Rule against perpetuities RC Real Covenant Restatement Restatement (of Contracts, Torts, Judgments, etc.) RFRA Religious Freedom Restoration Act of 1993 RLUIPA Religious Land Use and Institutionalized Persons Act RPP Reasonable prudent person Rule Federal Rule of Evidence or Federal Rule of Civil Procedure Section S Sublessee or seller S.Ct. Supreme Court or U.S. Supreme Court Reporter SJ Summary judgment SMJ Subject matter jurisdiction SP Specific performance T1 First tenant TE Tenant/tenancy by the entireties UCC Uniform Commercial Code US United States of America or United States Reports (compilation of U.S. Supreme Court opinions) USC United States Code VR Vested remainder VR SD Vested remainder subject to divestment

16 CHAPTER 1. INTRODUCTION TO TORT LAW I. INTRODUCTION Tort law is sometimes referred to as personal injury law or the law of negligence, though tort law in fact encompasses much more than just negligence. A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy. Seventy to eighty percent of torts fall under the classification of negligence torts, a group of torts in which the civil wrong was not intentional. 1 The other torts fall into a smaller group known as intentional torts, where the requisite mens rea is intent. While the criminal law seeks as its principle objective the punishment of the offender, in the civil law, of which the tort law is one branch, restitution to the victim is the primary objective. In the civil law, retribution also plays a limited role, since courts will at times award punitive damages, which are based on a theory of retribution. The restitution in the tort law aims to return innocent parties back to their original position through compensation. This is done through awarding them money damages, which the tortfeasor is required to pay. In the criminal law, in contrast, the criminal pays his debt to society through paying fines to the government or through serving prison sentences. Among the other purposes of the tort system are as follow: - To discourage negligence and civil wrongs; - To protect innocent victims; and - To avoid private revenge. 1. Sources The tort law is derived from the common law. However, in some states, the tort law is, to a certain extent, based on statute. In other states, such as California, it has been largely codified. 1 The majority of these torts are automobile-related.

17 16 THE SELF-HELP GUIDE TO THE LAW II. DEVELOPMENT OF LIABILITY BASED ON FAULT A. Traditional approach: the strict liability rule. There was a time when fault was not even considered for the purpose of ascertaining liability. Determining liability was only about asking whether the defendant cause the injury. If so, the defendant was liable; if not, he was not liable. Intent, recklessness and negligence were not a part of the analysis. B. Later developments Later, the idea of fault began to enter the system. Under the earliest fault rule, the defendant was liable, unless he was able to prove that he was utterly without fault. See Weaver v. Ward (K.B. 1616). Eventually, the common law developed the notion that the burden was on the plaintiff to prove fault (intent for intentional torts, recklessness or intent for intentional infliction of emotional distress, breach of duty for negligence), not on the defendant to prove that he acted with care. See, e.g., Brown v. Kendall (Mass. 1850). There is no fault when injury is caused by sudden, unforeseeable illness. See Cohen v. Petty (D.C. Ct. App. 1933). Nevertheless, the traditional common law rule of strict liability still applies to some situations. See Spano v. Perini (N.Y. 1969).