TORT LAW

Instructor:

Paralegal Certificate Program Class 1

What We Will Cover

• Types of Torts and Defenses/Immunities• Investigations of Cases• Paralegal Roles

Material Responsible For

• ALL Material covered in assigned readings• ALL Material covered in assignments• Grading: 25% Participation

25% Assignment 50% Final Exam

Welcome to Torts!

What is covered in tort law?

Almost every aspect of human endeavors. Torts governs the conduct of people in society and reflects attitudes towards living.

WHAT IS A TORT?Chapter 1• A wrongful injury to a person or his or her property for which the victim receives a remedy in the form of damages. Typically, the compensation is monetary in nature. • Tort law involves components of accountability and deterrence in a civil context.• Tort law is largely a result of case law (aka...common law). • Sometimes, tort law is governed by statutes

– Statutes are made by the legislature• Often, there are gaps in the statutes which must be filled by the courts.• Tortfeasor – Person who committed the tort – the “doer”

HOW DOES TORT LAW COMPARE TO CRIMINAL LAW?

Criminal Law• Designed to punish• Proof beyond a

reasonable doubt• Societal interests• Criminal Rules of

Procedure apply

Tort Law• Designed to

compensate victims• Preponderance of the

evidence• Protect individual

interests• Civil Rules of Procedure

apply

HOW DOES TORT LAW COMPARE TO CONTRACT LAW?• The main distinction between tort and contract law

is that tort is imposed upon the defendant as opposed to a contract which is voluntarily entered into by the parties (offer, acceptance, meeting of the minds and consideration).

• Tort laws are enacted for society in general and contractual obligations are specifically related to the contracting parties.

THREE MAIN CATEGORIES

OF TORTS

INTENTIONALTORTS:

Must have intent(mindset)

NEGLIGENCE:

Violation of reasonable person

standard

STRICT LIABILITY:

No intent required

QUICK DEFINITIONS• Negligence: The failure of an ordinary, reasonable,

and prudent person to exercise due care in a given set of circumstances

• -NO Intent required; deals more with “carelessness”• Intentional Torts: Actions intended to injure a person

or their property • INTENT required

• Strict (Absolute) Liability: Tortfeasor responsible for injuries regardless of intent OR negligence OR fault

• Products Liability

GENERAL ELEMENTS TO TORTS

• 1. Duty• 2. Breach• 3. Causation• 4. Damages

Public Policy • Public policy plays a large role in torts litigation• 5 main purposes for tort principles

1. Protecting people and property from unjust injury by providing legally enforceable rights

2. Compensation to victims by holding tortfeasor (the “doer”) responsible

3. Encouraging minimal standards of social conduct among society’s members

4. Deterring tortious conduct5. Allocating losses among different participants in the

social arena (may have multiple tortfeasors)

IRAC• How to analyze cases

1. Issue2. Rule of law3. Application of the rule to the facts4. Conclusion

ISSUE

• First, know your facts• Then, identify the Issue: • To find the “issue”, must know what area of

law you are in.– Torts? Contracts? Criminal?• Torts: Negligence? Strict liability? Intentional Tort?

– Conversion? Slander? Trespass? IIED?

RULE

• The rule IS the law– Get this through a statute (restatement, etc) or

case/common law or rule of procedure– May be many “elements” to each rule of law• Look at negligence example: 4 elements- duty, breach,

causation and injury

APPLICATION

• Must apply the rule of law you determined applies in this factual scenario to those facts

• This is where you “analyze” the facts to determine if the specific law applies, and a tort was or was not committed

CONCLUSION

• State whether the tort was committed or not• State whether you believe a lawsuit will be

successful or unsuccessful• Remember – rarely a guaranty in the law of success• Case law is key - Persuasion is key• Rarely get the same result, even with very “similar”

facts – one variation in facts could alter the case result

HYPO – pg. 8 in text• Facts: Raj – slipped and fell at Gym Dandy Fitness on water from

leaky pipe. Broke his left arm. Another patron saw the water 2 hours earlier

• Issue: Type of law? Negligence. Question – would Raj succeed in suing Gym Dandy for negligence?

• Rule of Law: Duty, breach, causation, injury/damages (we will detail these more) – knowledge/notice or “constructive knowledge” is key.

• Application: Duty – yes, he’s a patron. Breach – yes, danger created by Gym Dandy’s leaky pipes which Gym Dandy had time to correct (visible for 2 hours). Causation – yes, puddle caused by Gym Dandy’s leaky pipes and they had notice (actual or constructive). Injury – yes, broke his left arm.

• Conclusion: Gym Dandy was negligent, so Raj should be successful

REPEAT IRAC FOR POTENTIAL DEFENSES AS WELL• How to analyze a tort case?– General area of law to specific – as we discussed– Must consider possible defenses to each type of

tort• We will discuss defenses in detail• Book hypo on pg. 8-9 discusses assumption of the risk –

a defense to certain torts

TORTS AND LITIGATION• Tort litigation is consistent with general civil litigation in that the

Rules of Civil Procedure govern.• The steps of the litigation process are: complaint, answer, discovery,

pretrial procedure, trial and post-trial procedure.• The majority of cases are resolved through alternate dispute resolution

(ADR)– Mediation v. Arbitration

• Arbitration – binding • Mediation – nonbinding (more persuasive)

– -FL – mandatory mediation for most civil cases – Minitrial – a means of ADR by panel of executives from 2 companies

with a neutral moderator – for complex disputes– Rent-a-Judge – parties can choose a person to decide their case

• Often a retired judge• Parties agree upon the type of formality – binding/nonbinding

– Summary Jury Trial – smaller jury – can agree to be bound, not bound; judge present

The paralegal’s role in tort investigations . . .Chapter 13

What are some examples of paralegal responsibilities

when it comes to tort law cases?

Paralegal roles . . .

• Investigations • Ascertaining the facts• Customize the investigation• Witness interviews• Timing of interviews• Questionnaires

• Locating defendants• Using discovery tools• Internet resources

• See sample Client Information Sheet – Appendix A in text (page 439)

WHAT DOES AN INVESTIGATION ENTAIL?

• Important to gather ALL or as many as possible, of the KEY FACTS of the case

• How a law firm gather facts:• Hire investigator• Hire specialists/experts • Use in-house staff – Paralegals, law clerk, etc.

• Paralegals need to understand type of case and what facts needed (and not needed) to move forward with case

INVESTIGATIONS: ASK CLIENT THESE BASIC QUESTIONS

• WHO? • WHAT? • WHEN?• WHERE?• WHY?• HOW?

ASCERTAINING FACTS: Tools to ascertain facts• Discovery Process• Police reports (example on pg. 404 of book)• Client provided documents – Medical records– Witness statements– Newspaper articles

• Simple Phone Call

• Internet • Corporate records searches (www.sunbiz.org)• Documenting the scene (visual,

measurements, evidentiary forms, video, photos)

• Newspapers• Television coverage

Additional areas to investigate

• Employment and lost wages – records and tax returns• Expenses related to the injury• Insurance coverage and other benefits• Previous claims / lawsuits• Previous injuries to the Plaintiff• Criminal Histories (miami-dade clerk of court website)• Driving records

INVESTIGATING DIFFERENT TYPES OF TORT CASES • Automobile Accidents: Factors to consider– Mechanical malfunctions– Dangerous Street Conditions– Construction Sites

• Medical Negligence Cases– Who was the doctor/nurse, hospital, etc.– What procedure involved?– Did the patient/plaintiff follow treatment properly?– Consent forms? – ETC…

REVIEW THE CHAPTERS

• Go over and review the practice questions and quizzes at the end of every chapter

• Answers: ParalegalSpace.com under ParaStudent Log-in– Go to Torts section, click on the relevant chapter and

you will see review questions, answers and quizzes

• Email: