The terms assault and battery are often erroneously used
interchangeably. They are not the same things. An assault can be defined as the
threat to use unlawful force to inflict bodily injury upon another. The threat,
which must be believed to be imminent, must cause reasonable apprehension in
the plaintiff. Therefore, where the defendant has threatened some use of force,
creating an apprehension in the plaintiff, an assault has occurred. The focus,
for the purpose of determining whether a particular act is an assault, must be
upon the reasonableness of the plaintiff's reaction.
If the defendant threatens to use force against the
plaintiff, but clearly states that the use of force will not be imminent, and
will instead occur at some point in the future, then the plaintiff is unlikely
to prevail on a claim of assault. If the threat is imminent, and the defendant
appears capable and intent on carrying it out, the plaintiff will likely
succeed in proving an assault occurred. For example, a plaintiff may have
difficulty proving an assault in cases where an individual such as a former
spouse threatens him or her over the phone and thus is not present and capable
of immediately carrying out the threat.
Battery is the intentional and
unpermitted contact with another. A battery, for practical purposes, is the end
product of an assault. A plaintiff in a battery claim does not need to prove an
actual injury, as long as the plaintiff proves unlawful and unpermitted contact
with his or her person or property. For example, plaintiffs have successfully
proven a battery where the defendant grabbed onto the plaintiff's coat. In
addition, it is not necessary for the contact to be with an object in the
possession of the plaintiff or the plaintiff's body. An unpermitted contact
with property of the plaintiff, located within the plaintiff's proximity, may
also constitute a battery.
In general, the answer to this question is yes. An owner
of a dog, or any animal for that matter, may be held liable for the injuries
the animal causes to others. However, the ease with which a plaintiff can win a
"dog-bite" lawsuit differs from jurisdiction to jurisdiction
depending on the legal theory of recovery available in the plaintiff's
location. Some jurisdictions require the plaintiff to show that the animal
owner knew, or should have known, that the animal was inclined to attack or bite.
In other jurisdictions, the plaintiff may only need to show negligence on the
part of the owner in order to recover money for his injuries. If a wild animal,
such as a lion, bear or monkey, injures the plaintiff, the animal's owner may
be held accountable under a theory of strict liability for plaintiff's injuries
regardless of the plaintiff's conduct.
Some states have "dog-bite" statutes designed to
address these very matters. Additionally, some municipalities may also have
their own statutes that also address the responsibility of pet owners to answer
for the actions of their pets.
If the plaintiff is an adult, the owner of an animal may
offer as a defense to the plaintiff's claim that the injured party provoked the
animal. Where the plaintiff has been given clear warning that an animal should
not be approached, petted or talked to, and still proceeds with that action,
the owner may be able to avoid responsibility if the animal thereafter attacks
the plaintiff. This defense is not available, however, if the plaintiff is a
child.
Once the plaintiff has established that the animal owner
is liable for his injuries, the plaintiff must also establish the amount of his
or her damages. The plaintiff should introduce evidence, such as doctor and
hospital bills, of how much it has cost to treat the injury. In addition, the
plaintiff may be able to recover lost wages if the injury kept the plaintiff
out of work. The plaintiff is entitled to compensation for any permanent
disability caused by the injury, as well as compensation for pain and
suffering.
Defamation includes both slander and libel. Generally,
slander occurs when the reputation or good name of someone is damaged as a
result of false statements that are made orally. Libel, on the other hand,
occurs when false statements regarding another are put in writing.
Whether a particular statement, oral or written,
constitutes defamation in the nature of slander or libel will depend upon the
particular circumstances and the identity of the parties. To prevail in a
defamation lawsuit, a plaintiff must prove that the defendant made a false and
defamatory statement about the plaintiff that was communicated to a third
party. Thus a false and objectionable statement sent in an e-mail to the
plaintiff's co-worker may be libelous. The plaintiff can usually succeed by
showing the communication was either intentional or at least negligent.
Finally, it is also possible for the plaintiff to bring a libel suit where the
plaintiff himself repeats the alleged defamatory statement. This is called
self-publication. This can occur, for example, when an individual applies for a
job and has to tell the prospective employer about something the previous
employer said that was false.
Before beginning a libel or slander lawsuit, the plaintiff
must determine whether or not the objectionable statement is true. No matter
how damaging, insensitive, rude or inappropriate a statement may be, the
plaintiff will lose if the statement is true.
The "public" plaintiff has additional hurdles to
overcome to recover for libel or slander. An example of a public figure is a
politician. Along with establishing all of the regular elements of the tort, a
plaintiff who is a public figure must also show that the defendant knew the
false statement was false, or at least acted with reckless disregard as to its
truthfulness. Newspapers may escape liability for libel when they merely report
false statements as long as the paper had no particular reason to doubt the
statement at the time it was printed.
Finally, the plaintiff often has to prove economic harm in
order to recover on a defamation suit. Therefore, the plaintiff may need to be
able to demonstrate a loss of business as a result of the defamation in order
to establish a right to the recovery of money. However, some types of
statements are so damaging that the plaintiff does not have to prove any
economic loss. These statements tend to be those that accuse the plaintiff of
sexual impropriety or criminal conduct.
Yes. The average member of the public is entitled to
privacy protections, although the strength of those protections will vary
depending upon the particular factual circumstances.
Generally, there are four different actions that an
injured plaintiff can allege to recover for an unlawful invasion of his
privacy. The first concerns the unlawful appropriation of another's image. The
plaintiff could make this claim, for example, if the defendant, an owner of a
car dealership, uses plaintiff's picture in a commercial or advertisement
without permission.
The second type of wrongful invasion of privacy is in the
nature of intrusion. If the plaintiff can prove that the defendant intruded
into his or her solitude, seclusion, or private life in a manner that would be
considered highly offensive to a reasonable person, the plaintiff is entitled
to recover damages from the defendant. The issue of what actions are considered
highly offensive depends greatly upon the factual circumstances under
examination.
The third type of a privacy claim is the public disclosure
of private facts. This cause of action requires that facts having no link to a
legitimate public concern be disseminated by the defendant resulting in
embarrassment, humiliation, or offense to the plaintiff. Whether the public has
a legitimate concern in otherwise private facts about the plaintiff is always
dependent upon the particular circumstances. For example, the public may have a
legitimate interest in knowing that a local surgeon has the AIDS virus, which
is an otherwise private matter, due to the potential health risks involved with
that condition. In comparison, however, the public may not have a valid
interest in knowing the HIV status of the local cabdriver, as there is no
threat to the public health or safety in that situation.
A fourth type of privacy right is the right to be free
from being placed in a false light in the public eye. This cause of action is
very similar to a defamation action. In short, the plaintiff alleges that a
communication about the plaintiff was made by defendant, it is untrue, and it
was made to the public. The main difference between this cause of action and
defamation is that for the invasion of privacy tort, the communication need not
be defamatory, it need only be false and highly offensive to a reasonable
person.
An owner of property has a duty to protect members of the
public from injury that may occur upon the property. The injured person may be
able to recover money for those injuries if he or she can prove that the
property owner failed to meet that duty. The hurdle plaintiffs face is that the
nature and extent of the property owner's duty will vary depending upon the
facts of the situation and the jurisdiction in question.
Some states focus upon, solely, the status of the injured
visitor to the property. These states divide the potential status into three
separate categories: invitee, licensee, and trespasser. An invitee is someone
who has been invited onto the land because that person will confer some
advantage to the property owner, such as a store patron. An owner of property
is required to exercise reasonable care for the safety of the invitee. A licensee
is someone who enters upon the land for his or her own purpose, and is present
at the consent, but not the invitation, of the owner. For example, a
door-to-door salesman who enters the property and stays to chat with the owner
about the product that he is selling is a licensee. The owner's duty to a
licensee is only to warn of hidden dangers. For example, if the owner knew the
front step was rotten and did not warn the salesman, the salesman may be able
to recover if he thereafter falls through the step and injures himself.
Finally, a trespasser is an individual who enters onto the property without the
knowledge or consent of the owner and who remains there without any right or
permission. Trespassers have difficulty suing property owners because property
owners' duty towards trespassers is not to place traps and hazards on their
property. In some cases, the owner must also warn trespassers of the hazards if
they are unlikely to be discovered by the trespasser and could cause serious
injury or death.
Other states focus upon the condition of the property and
the activities of both the visitor and owner, rather than considering only the
status of the visitor. In these states, a uniform standard that requires the
owner of the property to exercise reasonable care to ensure the safety of
invitees and licensees is generally applied. The plaintiff must prove that the
duty of care has not been met, through an examination of the circumstances
surrounding the entry on the property, the use to which the property is put,
the foreseeability of the plaintiff's injury, and the reasonableness of placing
a warning or repairing the condition. Obviously, whether reasonable care has
been rendered depends greatly upon the particular circumstances.
The property owner's duty of care toward children is
greater than the duty owed to adults. Even if the children are trespassers or
engage in dangerous behavior, the property owner must still take precautions to
prevent foreseeable harm to children. The classic example of a property owner's
greater duty of care to children arises in the context of backyard swimming
pools. Owners must fence, gate, and lock their pools in a manner that keeps
children out and if they fail to do so, they will be found liable for injuries
to children, even if the children were trespassers that were warned to stay off
the property.
Generally speaking, an owner of property may not use
deadly force to defend the property. Society values human life and bodily
integrity much more than property. Therefore, the life, health and safety of an
individual, even an intruder, is considered to be more valuable than the china
or stereo which that individual is trying to steal.
An owner is not prohibited, however, from invoking
self-help methods in defending property from another. An owner of property is
entitled to use reasonable force to prevent someone, or something, from
entering onto her property or to remove something from her property. What,
under normal circumstances, may constitute a battery, assault, or other
intentional tort, will not be considered unlawful in situations where it is
performed as a reasonable use of self-help in defense of property. However, the
use of force calculated to do great bodily harm, or cause death, is not
permitted.
One narrow limitation upon the use of deadly force is
authorized. Where an intruder threatens personal safety, as well as a threat to
property, or where the intruder is committing a forcible felony, deadly force
may be appropriate. For example, if a robber enters a home and, while stealing
items, attempts to rape the homeowner, the owner may be justified in shooting
the robber. However, an owner who witnesses a neighborhood child stealing a
bicycle from the owner's garage, without any threat of bodily harm, is not
justified in shooting that child.
Most individuals who are injured at work are prohibited
from filing ordinary personal injury lawsuits against their employers. Instead,
injured workers are generally required to file a claim under the state's
workers compensation procedure. An injured railroad worker must bring a claim
for benefits under the Federal Employer's Liability Act (FELA) for compensation
for his injuries. FELA is similar to many state workers' compensation systems
with the exception that a railroad employee must be able to prove some level of
employer negligence in order to make a recovery. In comparison, most state
systems are based upon no-fault theories of recovery where neither the
negligence of the employer or the employee is examined. In practice, it is
generally not difficult for an injured railroad employee to prove that the
employer was, at least to some degree, negligent.
Laws, rules, and regulations require a railroad to furnish
a reasonably safe workplace for the benefit and protection of its employees. In
keeping with this requirement, a railroad has a duty to inspect and discover
defects that may result in injury. In some circumstances, this may include the
duty to uncover defects that should be obvious to a railroad employee. A
railroad also has a duty to warn its employees of any hazardous or unsafe
conditions of which it is aware, or should be aware.
A railroad is also required to take other steps to ensure
the safety of its workers, including providing adequate training and
supervision, appropriate tools and safe equipment, and enforcing only
reasonable work quotas. The FELA claimant can usually show that at least one of
the required regulations has not been met, thereby establishing the employer's
negligence.
A slip and fall action is a type of personal injury
lawsuit filed by a plaintiff who has been injured by a slip and fall, usually
on the defendant's property. Examples of very common slip and fall plaintiffs
include the grocery store patron who slips on a liquid or a piece of food
laying on the floor, and falls, causing injury to himself; and a hotel guest
who slips in the shower and injures her back in the process.
The plaintiff in slip and fall cases must usually show
that the owner of the property had notice or knowledge of the condition, and
failed to clean it up and rectify it within a reasonable amount of time. If the
plaintiff slipped on a grape that had been lying on the floor for two hours,
and the manager of the store had walked past it and seen it five times before
asking someone to clean it up, liability is likely.
If the plaintiff has knowingly encountered a hazard, then
he or she may have trouble holding the defendant liable. For example, if a
hotel guest squirts baby oil onto the floor of the shower; steps into the
shower and attempts to do the jitterbug; and then falls and breaks an ankle,
liability on the part of the hotel is highly doubtful. However, if the cleaning
staff in the hotel repeatedly tells management that the non-skid treads in the
bathtub for room 212 are missing and the hotel fails to replace them, the hotel
will probably be liable for damages to a guest who is injured.
No. Generally, most states that recognize a wrongful death
cause of action limit the pool of potential plaintiffs. Some states limit this
group to the deceased's primary beneficiaries, defined as the surviving spouse
and the deceased's children. Other states allow the parents of the deceased
individual to bring a wrongful death claim. In addition to these individuals,
some states recognize the rights of any dependent, whether closely related or
not, to bring a wrongful death claim provided the person actually depended on
the deceased for economic support. In those jurisdictions, it apparently makes
little to no sense to allow the second cousin once removed of the deceased, who
saw him once every five years at a family reunion, to recover for the loss of
the deceased's future earning potential.
Some states require any recovery gained in a wrongful
death action to be divided amongst the deceased's heirs at law or to be
distributed to the deceased's heirs at law as it would be in any normal probate
proceeding. In these situations, distant relatives may receive some
"trickle down" of damages, even though they were not financially
dependent upon the deceased during his life.
If more than one plaintiff is entitled to recover, all
plaintiffs will share in the award. The manner in which the award is divided
can be confusing and will depend upon the laws in the particular jurisdiction
where the matter is brought.
Personal injury actions require, by their very nature,
that someone be injured. The requisite injury can either be physical or, in
some cases, emotional. The general goal of personal injury actions is to place
the blame for the injury on the party who caused it and to require them to
compensate the injured for the losses sustained.
Not every injured plaintiff is entitled to recover damages
for the injury he or she sustains. Besides an injury, the plaintiff must
establish, through evidence, that the defendant is legally liable for his or
her injuries. This requires proof of causation both in terms of actual, factual
causation and legal causation. Whether legal causation is established depends
on the facts and circumstances of the particular matter in question. The
defendant can be held liable as a result of either the actions he took, or the
actions he had a duty and failed to take.
Some personal injury actions revolve around legal
causation derived from a concept of intentional conduct, whereby it is
generally held that if one intentionally harms another, or knows that the
conduct which is engaged in causes a substantial likelihood that harm will
result, liability for the resulting harm will in fact attach. Other personal
injury actions have as their legal causation a looser concept of fault called
negligence. Under a negligence theory, in comparison, one is liable for the
results of actions, or inaction, where an ordinary person in the same position
should have foreseen that the conduct would create an unreasonable risk of harm
to others. Still other types of personal injury actions are based on strict
liability, a no-fault system where liability may attach regardless of the fault
of the various parties, including the plaintiff.
In some situations, the defendant's conduct, while questionable,
does not rise to a level that entitles the plaintiff to a recovery. For
example, if a plaintiff knowingly and willfully chooses to encounter a known
hazard, the law holds that he or she has "assumed the risk of injury"
and therefore the defendant is not liable. This theory applies for instance in
a case where the plaintiff walks on an obvious build up of snow and ice caused
by the defendant property owner's failure to shovel his sidewalk, falls and
breaks her hip, and is unable to recover for her injuries because she knew of
the hazardous condition and willingly chose to encounter it. Plaintiffs are
denied recovery in other cases if their subjective belief about a situation
does not match an objective "reasonable person" standard. For instance,
where the defendant approaches the plaintiff and states "I might poke you
in the eye if you wear that red sweater again," it is likely that no
actionable assault occurred due to the fact that there was no immediate threat
of harm that caused reasonable apprehension on the part of the plaintiff.
Personal injury law can involve many different types of
claims, theories, and principles. Some of the more common, or interesting,
types of personal injury actions include:
Animal bites can result in the animal owner's liability
to the person who is bitten or who is injured while trying to avoid a bite.
Assault and battery are two intentional torts
that involve improper contact with another, without permission or consent, or
the threat of such contact.
Aviation accidents quite often result in serious
injury or death. When these accidents occur, serious questions regarding the
liability of the airline, its employees, or the government may arise.
Defamation and privacy are two separate areas
that concern the rights of individuals to have their names and reputations
protected, and also to have their privacy preserved.
Motor vehicle accidents raise numerous questions
as to the liability of one participant to another and also raise interesting
questions regarding who should be responsible for covering the losses.
Premises liability concerns the responsibilities
of owners and possessors of property to safeguard others from dangerous
conditions or hazards on the property and to prevent others from being injured
while on the property.
Property damage causes of action concern the
rights of owners or possessors of property to protect their property from
damage, theft or intrusion.
Railroad accidents may result in personal injury
or death and subject the railroad to liability.
Slip and fall cases are very common causes of
action and relate closely to the duty of an owner or possessor of land to
maintain the property in a safe manner for the benefit of others lawfully
entering upon the land.
Wrongful death actions may be brought by the dependents
or beneficiaries of a deceased individual against the party whose action or
inaction was causally related to the death.
Uninsured or
underinsured motorist coverage (UM coverage) pays for your injuries if you are
struck by a hit-and-run driver or by someone who does not have adequate
insurance -- either because they have no coverage or because they do not have
enough coverage -- to pay for your injuries. Normally, this type of coverage is
limited to bodily injury, and it will not pay for damage to your vehicle or for
other types of property damage. To get that kind of coverage, you will have to
add collision coverage to your policy.
Who is usually included in my uninsured/underinsured motorist coverage?
Most UM coverage will pay up to your policy's UM limits
for injuries caused to:
you or a relative who lives
with you, while a driver or passenger in the vehicle named in your UM
insurance policy or any other vehicle, or while a pedestrian
anyone else driving your
insured vehicle with your permission, and
anyone else riding in the
vehicle named in your insurance policy, or in any other vehicle you are
driving but which you do not own.
What are the limits on my ability to collect under an
uninsured/underinsured motorist provision?
UM coverage usually limits your ability to collect -- and
the amount you receive -- as follows:
If your accident involves a
hit-and-run driver, you must notify the police within 24 hours of the
accident.
If your accident involves a
hit-and-run driver, the driver's car must have actually hit you -- being
forced off the road by a driver who disappears is not sufficient.
Your UM coverage will be
reduced by any amounts you receive under other insurance coverage, such as
your personal medical insurance or any applicable workers' compensation
coverage.
If you or a relative are
injured by an uninsured motorist while you are in someone else's car, your
UM coverage will be secondary to the UM coverage of that other car's
owner.
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are intended for informational purposes only and should not be construed as
legal advice. Seek competent legal counsel for advice on any legal matter.
The information you obtain at this site is not, nor is it intended
to be, legal advice. You should consult an attorney for individual
advice regarding your own situation.
