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The terms assault and battery are
often erroneously used interchangeably. However, 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.
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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 that
that 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
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.
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Defamation is term that 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 orally made. 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 in question 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.
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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.
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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.
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Generally speaking, an owner of
property may not use deadly force to defend the
property. Society values human life and bodily integrity
much higher 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.
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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.
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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 spill 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 inspected 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 questionable. 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.
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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.
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Personal injury actions require, by
their very nature, that someone be injured. The
requisite injury can either by 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 proximate, or 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 that are taken, or the actions that are not
taken.
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 either 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 causes of action 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.
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Disclaimer
This publication and the information
included in it are not intended to serve as a substitute
for consultation with an attorney. Specific legal
issues, concerns and conditions always require the
advice of appropriate legal professionals.
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