Sunset Bay Wharf

​

Tort Law - The Law of Accidents

Tort Law is the law of accidents. Unlike criminal law which can result in prison or worse, Tort law is about money. It seeks to penalize wrongdoers and compensate victims by making people financially responsible for harm caused by their carelessness. Tort Law forms a fundamental building block of modern civilization by encouraging thoughtful behavior, valuing life, and preventing revenge violence.

​

The fundamental basis of Tort Law is the belief that every person has an obligation to conduct themselves as a “reasonable person”. If they fail to live up to this “reasonable person” standard, they are considered “negligent” and must compensate those harmed as a result.

​

Determining whether someone acted “reasonably” is a subjective and in many ways a moral judgment. Although there are many cases at the extremes where everyone would agree, there is also a vast grey area in the middle where determining negligence is a matter of opinion. Based on this, the determination of reasonableness and therefore negligence in our system of justice is a question for the jury. In this way, evolving community and cultural standards for morality, fairness, carefulness, and empathy form a fundamental basis for the Tort Law system.

​

It is not possible to understand the Tort Law system as it exists today without also understanding the role played by insurance. Tort Law developed long before liability insurance. In fact the adoption of insurance was delayed for generations by the view that insurance was immoral and a danger to society because it allowed careless people to escape financial responsibility for their negligence. However, as society became more urbanized and interconnected, and particularly with the advent of motor vehicles, increased opportunities for momentary carelessness to cause serious injuries made even the most careful people accept the need for insurance. So for the past century and a half, the Tort Law and Insurance Law systems have grown hand in hand, two sides of the same coin seeking deterrence against careless behavior and compensation for its consequences.

What makes our society, and our system of government stable is respect for longstanding legal principles regarding fairness and justice. But what makes law interesting, is that there are unresolved philosophical questions over how these fundamental principles should apply to modern life. Tort Law and its intersection with Insurance Law is no exception, and in many ways is on the forefront of this need for continual reexamination.

​

At the center of the Tort/Insurance Law debate are these fundamental questions: If everyone has insurance and the main purpose of Tort Law is to compensate victims, why does it even matter who was at fault for causing an accident or how much at fault they are? Maybe negligence should be made a lot easier to prove so that accident victims almost always receive compensation from someone? And if this were the case do we even need a Tort Law system where the main purpose served by litigation is dividing responsibility between insurance companies with little deterrent effect on the wrongdoers? But what if the tremendous effort the current Tort Law system devotes to placing legal and moral responsibility on wrongdoers turns out to be the glue that holds civil society together? Would removing that glue be a one-way ticket to some dystopian future, or could it be put back together if the experiment turned out to be a failure?

​

The presence of these unresolved and unresolvable questions are the reason the Tort and Insurance Law systems exist as they do today, and are the reasons there are ample opportunities for thoughtful attorneys to help explore and advance this area of the law.

​

Intentional Torts

​

Prior to the modern age of criminal law and insurance, persons willfully attacked by wrongdoers frequently had no recourse other than to sue the wrongdoer for Intentional Tort. These cases now days are prosecuted primarily in the Criminal Law system, and where there is a Tort Law case asserted, it is usually postured as negligence rather than an intentional act. This is so because alleging an intentional tort complicates the prospect of insurance recovery which is the primary if not sole source of compensation for most injured persons. Although counterintuitive, the strategic posture of almost all intentional act cases in the modern era is for both plaintiff and defendant to characterize the act or result as a mistake in some way so as to best preserve the insurance company’s obligation to pay for the "accident".

​

Strict Liability

​

Most Tort Law cases involve the concept of "Negligence" which requires proving some level of carelessness by a defendant. "Strict Liability", however, is an important area of Tort Law where defendants are held liable for harm no matter how careful they may have been. This legal concept is based on the premise that for certain activities the risk of harm is so inherent that fairness dictates holding defendants financially liable for accidents without forcing injured parties to delve into exactly how careless the inherently dangerous activity may have been carried out in some particular instance.

​

Early examples of such inherently dangerous activities include damage from escaping livestock, dam breaks, and handling of explosives. More recently the Strict Liability rule has been expanded to apply to any unusual activity which presents a high degree of serious injury risk to others which is inherent in the activity and thus cannot be completely eliminated. Examples include transport of gasoline, pipelines and water mains, exterminators, and nuclear reactors. 

​

In cases of Strict Liability injured parties do not need to prove negligence, but they must still show that the harm resulted from the same feature of the activity which subjected it to the Strict Liability standard. For example an explosives company would not be subject to strict liability for dropping a crate of explosives on someone if it never exploded.

​

Vicarious Liability

​

Vicarious Liability is similar to Strict Liability in that public policy and the interests of justice require holding defendants liable in Tort but without a showing of actual negligence. This occurs when the Vicariously Liable party is seen to control or have the right to control another, such as employer-employee and parent-child. When a party is held Vicariously Liable for the acts of another, it means they assume the legal liability for whatever acts were performed by the actual wrongdoer. Although a Vicariously Liable party can defend the suit by arguing that the wrongdoer was not at fault, they generally cannot protect themselves by claiming they themselves were not at fault.

​

Liability for Negligent Selection of Independent Contractors

​

Related to the concept of Vicarious Liability, is the more recent legal concept that those who hire independent contractors should be liable if they are careless in how they select them. This concept was popularized by Section 411 of the Restatement Second of Torts, and is in conflict with an earlier Tort Law principle which held that persons were immune from liability for the acts by contractors they hire but do not control. Section 411 addresses the concern that large sophisticated corporations were endangering the public and shielding themselves from liability by hiring unsafe and underinsured fly-by-night contractors to perform their core business functions. The trucking and construction industries are two primary areas where this has been known to occurs and where most law suits include efforts to hold accountable those who hire small independent contractors. Defending negligent hiring claims requires showing that sound procedures were followed by the large companies to assure the small contractors would operate safely.

​

Products Liability

​

Another area of Tort Law where the normal rules of proving negligence do not apply is the area of Products Liability. Under Products Liability Law those who make and sell products by putting them into the "stream of commerce" are liable for injuries if the product is found to be "unreasonably dangerous". This term has been taken to mean the product is more dangerous than necessary and more dangerous than would be expected by a reasonable consumer. Manufacturers seeking to avoid Products Liability exposure use warning labels in an effort to counter arguments that the danger was unexpected. Most states have Product Liability Acts which set forth in detail how these claims are prosecuted, the level of proof required, and how damages are calculated.

​

As a general matter, these statutes include a subjective balancing of the need and usefulness of a product compared to its dangerousness and the ability of a reasonable user to protect themselves. Modern Product Liability laws have made our activities of daily life vastly safer than they were a generation ago. But many argue that the lack of predictability in the subjective nature of this area of law causes product makers to error on the side of banality thus stifling innovation in many areas of consumer products and personal transportation.     

​

​

Tort Law Cases at Trial

​

Before proceeding with the main area of Tort Law which is the law of Negligence, it is helpful to know a bit about the actual procedures involved when a Tort Law case goes to trial.

Legal Questions: There are two kinds of questions and disputes decided at trial, “legal” which are decided by the judge, and “factual” which are decided by the jury. “Legal” questions include disputes between the parties over the legal rules governing how the trial is conducted. They also include disputes over the meaning of the text of everyday laws governing how citizens must conduct themselves, such as not speeding or running red lights. Legal rules come from laws passed by state and local legislative bodies, but they also come from the “Common Law” which means previous court case decisions by appellate courts.

​

Factual Questions: “Factual” questions for the jury refer to deciding disputes between the parties over what events actually happened. They also include deciding whether or not what happened violates the “Legal” rules decided upon by the judge. On of these legal rules governing how trials are conducted requires that factual decisions by jurors must only be based only on the evidence presented to them at trial. Juror decisions on questions of fact are considered sacrosanct, and they can only be overruled by Judges in rare situation where the judge finds that “no reasonable person” could think what the jury thought, or if the judge finds that the jury decision was based on facts not allowed into evidence.

Rules of Evidence: As everyone knows who has seen a courtroom drama on TV, attorneys raise lots of objections to evidence presented during trial. Jurors frequently see these objections as attempts to keep them from finding out what actually happened, but it is actually just the opposite. Though literally hundreds of years of practice, the legal system has learned that ordinary citizens who serve as jurors can be led to make erroneous decisions on what actually happened if lawyers are allowed to appeal to the jurors’ passions, prejudices, and things jurors might have heard through the grapevine rather than seen for themselves. Based on this experience, the legal system has formulated a set of rules known as the “Rules of Evidence”. These rules govern what information can be presented to the jury at trial, and what assumptions jurors are allowed to make about it. In this way both parties are given the best possible chance of receiving a fair and accurate jury decision on questions of fact. 

Some of the most important Rules of Evidence in Tort Law cases include:

-Hearsay. Since the main job of jurors is to determine what happened, they need to hear first hand from the persons who saw it. In this way jurors can judge for themselves the truth of the witnesses and their story. The rule against Hearsay preserves this opportunity for jurors by preventing witnesses from presenting second hand information outside of their own personal knowledge. There are numerous exceptions to the Hearsay rule which attempt to limit it to this original purpose. But it is fair to note that the Hearsay rule is still probably the most mistakenly applied of all the Rules of Evidence when attorneys and judges frequently forget it original purpose and mistakenly extend the Rule to matters where witnesses are in fact presenting testimony as to what they observed, but what they observed was someone saying something. For example, if a witness testifies "Fred told me the car rolled over" the Hearsay rule requires the jury to hear this directly from Fred to determine whether Fred is telling the truth about the car rolling. However, if everyone knows the car rolled, this witness testimony as to what Fred said, should be allowed into evidence because it is presented for the purpose of just proving that Fred said it, not that what Fred said was true. This scenario where second hand statements are needed at trial to show just that something was said, not that what was said was true, is an extremely common situation, and it is a source of continual consternation for attorneys that erroneous Hearsay objections frequently prevent admission of this helpful information.         --In Person Testimony. Based on this same principle that jurors need to personally evaluate witness credibility, lawyers are generally not allowed to present eye witness testimony using signed or recorded statements as opposed to having the witness appear in parson.  As such, one of the main real world attributes of effective trial lawyers is the ability to find and form relationships with key witnesses so they will appear, and appear willingly at the actual trial.      

-Spoliation of Evidence. In the modern era with security and dash cameras everywhere, what actually happened can often be definitively resolved if the video evidence is preserved for review at trial. The Rules of Evidence therefore provide that if a defendant fails to preserve video or other evidence after being formally placed on notice of the need to keep it by attorneys for an injured party, then they jury at trial is allowed to presume the lost evidence would have implicated the defendant who failed to preserve it. In the typical accident case without good eye witnesses, this presumption can be extremely powerful and frequently determines the outcome of the case. As such, it is a controversial rule and frequently challenged on fundamental fairness when it is alleged that fault free defendants were guilty only of carelessness in preserving the evidence, not in the accident itself.

-Exhibits. A large part of the evidence presented at trial is not people talking, but is rather documents, photos, and physical objects. For such items to be admitted as evidence for consideration of the jury the Rules of Evidence provide that item must be "authenticated" by lawyers presenting evidence as to how exactly they know that the thing actually is what they are saying it is. Disputes over such issues are heard in hearings normally held prior to trial and always outside the presence of the jury.      

Burden of Proof. Everyone has heard the phrase “beyond a reasonable doubt” which refers to the standard of proof required to convict an accused in “Criminal Law” cases. In “Civil Law Cases” which includes Tort Law and everything else, the standard of proof is “a preponderance of the evidence”. This is a lower standard of proof than required for criminal matters and has been seen as meaning simply “more likely than not” or a “51% chance”. To Tort defendants accused of wrongdoing, this standard may seem insufficient to justify reliving them of all their earthly possessions for a single mistake. In practice, however, the presence of insurance and jurors’ natural inclinations toward fairness cause most observers to regard the Tort Law system as achieving fundamental fairness to injured parties and defendants overall.

​

Discovery. Historically, injured persons were at the most disadvantage in bringing Tort Law suits because they did not have access to the information necessary to prove that a defendant acted carelessly. Under modern Rules of Discovery, defendants are now required to produce potential witness for pretrial deposition, and to disclose any matter or information sought by the plaintiff if the requested information might lead to discovery of admissible evidence. Based on this, the bulk of the actual legal work by litigation lawyers involves pretrial witness depositions, and the making, reviewing, and resolving disputes over discovery requests.

Res Ipsa Loquitur is another rule designed to address the problem of plaintiffs’ lack of access to information necessary to prove their case. Res Ipsa for short is a “Common Law” doctrine which means it came from judicial decisions rather than legislation. The first case cited for this proposition is Byrne v Boadle (1863) where a keg of flour rolled out of a two story warehouse crushing an innocent pedestrian below. Since the plaintiff had no access to and no way to prove how the barrel actually came to roll out the door, the court decision created the rule of “Res Ipsa Loquitur” which means “the thing speaks for itself”. This Common Law doctrine is recognized in every state for situations where fault free plaintiffs can show the accident seldom occurs without negligence, and was within an area of exclusive control by the defendant. Res Ipsa is an important feature of modern tort law and is applied in a wide variety of circumstances from airplane crashes, to defective products, to injuries to unconscious patients in hospitals. Res Ipsa is sometimes seen as having the effect of shifting the burden of proof from plaintiff to defendant by allowing the jury to start with the presumption that the defendant was negligent based simply on the facts of the accident.  The defendant then can only escape liability if they can show the accident resulted from a different or non-negligent cause.

​

Daubert Hearings – Allowing Testimony by Experts

Until recently it was rare for courts to allow expert testimony other than by doctors. This was based on a faith in juror common sense, and a concern that arguments between competing experts would be more likely to confuse than to enlighten the jury. This mindset is now largely reversed with competing experts explaining their side’s position on technical matters in almost every case, and with judges frequently requiring expert testimony before allowing cases to go to trial. The reason behind this inversion can be seen as twofold. Scientific research and study advances daily into new areas, and with the ever expanding online world, jurors have fewer common experiences in the physical world from which to develop what was formerly regarded as juror common sense. As a result, an expert witness industry has developed with paid Ph.D witnesses available to testify on almost any conceivable side of any conceivable issue, and with expert witness fees reaching well into 6 figures and constituting a major portion of the cost of tort law litigation. Almost every case now includes a pretrial “Daubert Hearing” where each side characterizes their own expert testimony as essential to jury understanding, and seeks to disqualify the expert testimony of their opponent by characterizing it as unhelpful, confusing and unqualified. Court rulings on Daubert hearing issues can be outcome determinative, and result in case dismissals or in low or high value settlements depending upon whose expert witnesses are allowed to testify and as to what.         

​

Voir Dire is the process at the start of trial where individual jurors are selected to sit on the jury panel for a particular case. Each case has its own Voir Dire proceeding where attorneys for each side question potential jurors in an effort to determine if they have any preexisting biases which would affect their deliberations. Attorneys for each side have a limited number of "preemptory challenges" where they can excluded jurors without providing a reason. However, if it appears that lawyers are using preemptory challenges to exclude jurors of color, the opposing party can raise a "Batson" objection based on a recent Supreme Court case and request a hearing on whether the challenge was based on race. Most juror challenges are not "preemptory" but are considered "for cause" where lawyers seek to exclude a juror based on their answers showing evidence of bias. Sophisticated trial lawyers generally seek to have jurors disqualify themselves by admitting leanings one way or the other in response to sometimes elaborately described scenarios and analogies to such things as food and other subjective preferences. Attorneys representing injured persons devote substantial resources to the Voir Dire process and frequently if not usually run mock Voir Dire and focus group sessions to better understand which juror mindset is good and bad for their case and which Voir Dire questions are most likely to expose it. Although subject to controversy, the law in most states allows lawyers to excluded tort case jurors "for cause" if they admit skepticism about the ability of large money awards to compensate for non-economic pain and suffering damages.   

​

Jury Instructions. When jurors retire to the jury room to deliberate, they are provided with a list of Jury Instructions which set forth the legal rules covering the various findings of fact to be made by the Jury. For example, Tort Law cases always include an instruction on what is meant by the burden of proof standard "preponderance of evidence", on the required level of Duty (i.e. carefulness) owed to the defendant to the plaintiff, and on what all present and future costs are to be included in their calculation of Damages. These instructions generally contain language straight out of appellate decisions on the issue and frequently are part of "Pattern Jury Instructions" adopted in a given jurisdiction. But since the facts of each case are different, attorneys frequently if not usually attempt to customize the instructions for a given case in order to influence the jury decision in their favor. Jury decisions which clearly did not follow the provided jury instructions are subject to being overturned by the judge of the case or on appeal. For example, a jury award leaving the amount for lost wages blank can be set aside if other aspects of the verdict made it clear that the jury found lost wages to have occurred.              

​

​

Liability Insurance

​

Before proceeding with the law of Negligence, it is also helpful to know a little about the structure of the Insurance System which funds almost all Tort Law litigation and trials.

​

The insurance system is divided into 3 parts: “Liability Insurance” pays for harm you do to someone else or to their property; “Property Insurance” pays for damage to your own property caused by fires or other perils; and “Surety Insurance” pays for damage you cause by failing to hold up your end of the bargain in a contract.

​

Tort Law is concerned only with Liability Insurance. Liability Insurance is essential to the modern Tort Law system because Liability Insurance not only pays the ultimate jury awards and settlements, but it also pays for the attorneys fees on both sides of the case. Liability Insurance makes payments by the hour directly to lawyers representing insured defendants, and it pays attorneys representing settling or prevailing victims in a lump sum at the end of the case.

​

Policy Exclusions. Liability insurance policies appear complicated because they include page after page and list after list of exclusions for various types of claims that insurance companies desire not to pay. The most important thing to understand about Liability Insurance exclusions, however, is that in practice these exclusions rarely come into play, except for the most basic provisions dealing with who and what is being insured, and in the rare case where intentional acts are alleged.

​

Triggering Duty to Defense. The reason it is unusual for the lengthy list of Lability Insurance policy exclusions to have any bearing on the litigated Tort case is because Liability Insurance policies are required to pay the attorneys fees necessary to defend a tort suit regardless of how expensive it becomes, and regardless of whether policy exclusions would prevent payment of the ultimate the jury award. This is so because the liability policy's Duty to Defend is based on what is alleged in the lawsuit rather than what might have actually happened, and lawyers for injured parties almost universally include at least one non-excluded claim in their lawsuit in order to trigger the Liability Insurance policy's duty provide a legal defense.

​

Unlimited Defense Obligation. 

It may seem counterintuitive that injured parties would want to see free lawyers provided to the defendants they are suing. However, this strategy in reality creates powerful incentives for Liability Insurance companies to pay injured parties and resolve Tort claims early in the process. This is because litigation of serious injury cases can be extraordinarily expensive, and the dollar about of the Liability Insurance company's defense obligation is unlimited.     

​

As matter of lawyer ethics, the more policy exclusions there are (and thus the greater likelihood of no insurance coverage for an eventual jury award) then the more tenaciously and expensively defense lawyers (paid by the insurance company) must defend their client to avoid the possibility of an uncovered judgment. As a result, cases with the "thinnest" coverage can give rise to the largest defense costs. And these defense costs are in addition to, not part of, the liability insurance policy limit. In this way, an insurance company with a $1 million limit policy, can be forced to spend another $1 million+ defending the suit, and still be subject to the possibility of paying the $1 million judgment if their policy exclusions are found inapplicable.

​

Declaratory Relief Actions.

Making it even more difficult for insurance companies to assert policy exclusions, is the fact that disputes with insureds over policy exclusions must be heard in a completely separate lawsuit (known as a Declaratory Relief Action “dec action” ) which normally cannot even start until after the jury verdict in the underlying injury case is in. If the insurance company bets wrong and loses their eventual dec action case, they will be found to have breached the insurance contract and held liable not only for the jury award in the underlying injury case, but also for the attorneys fees expended on both sides in the dec action, plus whatever additional damages the insured might have suffered from having the judgment left unpaid, plus possibly punitive damages to punish the company for its wrongdoing.

​

Covenant Judgments.

This is not the only unhappy scenario for insurance companies attempting to assert liability insurance exclusions. Rather than waiting for the entire case to play out as set forth above, a shorthand version occurs with what is known as a “covenant judgment”. This occurs where insurance companies are defending their policyholders against a tort suit, but at the same time the insurance company is reserving its right to assert policy exclusions at a later date and refuse pay the eventual jury award.

​

Since the insured defendants are not being protected by the insurance company in this scenario, they may seek to protect themselves by settling the case directly with the injured party. In this scenario the insured defendant will admit liability and even agree (i.e. stipulate) to a dollar amount for the injured plaintiff's damages. This is done in exchange for the plaintiff attorneys agreeing to collect only from the insurance company rather than from the defendant's own personal or business assets.

The injured plaintiff then sues the insurance company demanding payment for the admitted negligence and stipulated judgment amount. This scenario places the insurance company in an extremely vulnerable position. Unlike the normal dec action insurance exclusion lawsuit where the party opposite the insurance company in the case is the wrongdoing insured who caused the accident, here the opposing party in front of the jury is now the innocent injured plaintiff who is suing the wrongdoing insurance company for refusing to pay for negligence their own insured has already admitted to.

​

Incentive to Waive Exclusion.

Most insurance companies are sophisticated enough to try and prevent these unhappy scenarios from unfolding, and they do so by settling the case and paying the injured parties before their defense costs run out of control. If they decide not to settle the case right away, they will typically agree to waive the applicability of policy exclusions (and even waive the policy limits in many cases) in serious injury cases where liability for the insured defendant could exceed the insurance policy limits.

​

In this way as a general matter, injured plaintiffs solidify access to the proceeds of liability insurance, and cases either settle or proceed through the litigation process financed by the insurance system, and without regard to the minutiae contained in liability policy exclusions.

​

​

​

Negligence

​

As a general matter, Tort Law takes cultural norms of justice and fairness deeply rooted in human nature and it breaks them down into component parts which can be analyzed one by one and step by step. In this way, it encourages legal conclusions to be based on logic and reason rather than feelings and emotion. The sought after result being consistency and predictability as opposed to arbitrary and capriciousness which inevitably creeps into decision making based on overall impressions and gut instinct.

​

Tort Law divides the Negligence (i.e. carelessness) cause of action into 4 distinct elements, all of which must be proven at trial in order to hold a defendant legally responsible for an accident:

​

-Duty. Duty means the level of carefulness expected of all members of society to avoid harm to others.

​

-Breach of Duty. Once a standard of conduct or level of carefulness is established for a given activity or circumstance, the next inquiry is whether the defendant breached this duty by failing to conform to the standard.

​

-Causation. A defendant of course is only liable for accidents caused by their breach of duty. But “causation” as used in Tort Law requires something more than cause-in-fact. It requires what is known as “Proximate Cause” which means the harm must be a reasonably  “foreseeability” result of the breached duty.

​

-Damages. No matter how careless someone might be, it is only a Tort if the result is actual harm i.e. “Actual Damages” to person or property. 

​

​

​

Duty 

​

What level of carefulness is owed by a defendant in a given circumstance is well defined in some circumstances, for example when motor vehicle statutes prohibit or require certain conduct. In other cases the presence or extent of Tort Law Duty and to who it is owned is based on the Common Law (i.e. prior case decisions). As a general matter, Duty is considered a legal question for the decision of the trial judge, whereas the question of whether the Duty has been Breached is a factual question for the discretion of the jury based.

​

Although the level of Duty required by Tort Law is generally based on what a "reasonable person" would do, there are a number of recurring scenarios where case law and statutes have created specific rules reducing or increasing the level of carefulness required to satisfy the Duty element of a Tort Law Negligence claim.

​

Rules Reducing Duty of Care

​

Rescue Doctrine. Strange as it may seem, although Tort Law imposes extreme penalties sometimes for minimal amounts of carelessness, there is no legal duty at all to help save a person or property from harm caused by someone or something else. And this rule applies no matter how easy it is or how little risk is involved for the rescuer. This distinction between the duty to avoid harm by carefulness vs avoiding harm by rescuing someone in need can be difficult to justify morally. It is a principle of personal autonomy, however, with deep roots in American and British law and has been found implied in many state constitutions so that efforts to add “duty to rescue” laws have frequently been found unconstitutional.

​

One important exception to the no rescue doctrine comes into play once a rescue is begun. So although ordinary citizens generally have no duty to rescue or warn others of danger, once they have voluntarily undertaken this responsibility, they have a Tort Law obligation to act reasonably. However, due to public  interest in encouraging people to render assistance to others, many states have enacted “Good Samaritan” laws which protect civilian rescuers from legal liability even if it is found that an ineptly performed rescue attempt cause or increased the victims’ harm.       

​

Sudden and Unexpected Doctrine is another recurring area where Tort Law has created specific rules reducing the required duty of care. This principle is based on the understanding that ordinary people confronted by a sudden and unexpected event may react in ways which in hindsight would appear extremely negligent. Probably the most common situation where this occurs is when drivers are unexpectedly confronted with debris or unexpected objects in the roadway. Large numbers of death and serious injury accidents occur when drivers inexplicably swerve onto sidewalks or into oncoming traffic to avoid benign objects in the roadway such as flat pieces of wood, cardboard or birds, or where drivers swerve much further than warranted when encountering bikers or pedestrians. Although the fairness of this rule reducing the required level of care is subject to much dispute depending upon the egregiousness of the driver's act and the resulting injuries, the frequency of such inappropriate reactions to sudden and unexpected events is itself powerful evidence that the rule should apply to protect ordinarily reasonable people from this human shortcoming.

​

Open & Obvious/Trivial Defect Doctrine. Cases where pedestrians are injured by slips, trips, and falls while shopping or otherwise on the property of another make up a significant portion of litigated Tort Law Cases. In an effort to protect landowners from what was seen as frivolous lawsuits, the courts in most states adopted rules which reduce the duty that property owners owe to those visiting their property. The Open and Obvious Doctrine holds that some dangers are obvious enough that the presence of the danger itself constitutes a sufficient enough warning to satisfy the landowners' duty of care to others. Similarly the Trivial Defect Doctrine holds that some defects in walking surfaces a minor enough that a judge may dismiss the case the case outright as matter of law finding that the defect does not rise to the level breaching the property owner's duty of care. With the advent of Comparative Fault where juries now assign percentages of fault between defendants and injured plaintiffs, these doctrines rarely result in dismissal of cases by the judge, and instead merely allow juries to assign fault to the injured party based on their assessment of how open and obvious or how trivial the defect may have been.

Trespassers. The traditional rule on duty to trespassers is that a landowner owes them no duty of care whatsoever, and that the only duty owned is to not injure them on purpose by for example laying traps for them. However, current case law and statutes are more likely to find the level of care owed to trespassers is variable depending upon how foreseeable the trespassing is compared with how easy it would be for the landowner to reduce or prevent the risk of harm. This is particularly so with regard to young people where the courts have long held that dangerous unattended property which attracts children is an "Attractive Nuisance" which landowners have an affirmative duty to avoid.    

Rules Increasing Duty of Care                

​

Special Relationship Doctrine. Tort Law increases the required duty of care beyond the mere "reasonableness of an ordinary  person standard" to what is sometimes referred to as the “utmost care" standard in circumstances where a “Special Relationship” is deemed to exist. Such "Special Relationships" generally mean the defendant has some level of connection or responsibility for the wellbeing of the victim. Examples include Schools, Common Carriers (i.e. planes, trains, busses), Hotels, and other service business where physically control is exerted over the customer.

​

Alternatively, the increased duty of care required in these situations is sometimes explained as still using the “reasonableness” standard, but substituting the ordinary service provider or professional for the ordinary person. In any event, it is important to understand that a wide variety of persons and organizations are held to increased duties of carefulness well beyond what is expected of an ordinary person.

​

Professional Malpractice is closely related to and may be considered a subset of the Special Relationship Doctrine. Doctors, Lawyers, Accountants, Architects, Engineers, Surveyors and other professions with regulatory bodies and established standards of conduct are held to the "standard of care" for their particular field. Proving a departure from these standards requires expert testimony from a professional in the same field, and in some jurisdictions requires a sworn statement from such an expert before a professional negligence suit can be filed.

Construction Contractors. Also related to the Special Relationship doctrine is the increased duty of care required of general contractors who oversee or have the right to oversee activities on construction sites. In Washington State particularly, general contractors are held to have "expansive duties to ensure worker safety" and these duties extend to all workers at the site not just those working for the general contractor.

Visitors. Another area related to the Special Relationship Doctrine concerns increased duties owed to those visiting a landowner's property. This level of care is generally held to be highest for business "invitees" where the property owner is making money from the customer and thus in fairness can be expected to take affirmative steps to seek out and discover dangers, keep the property safe, and protect customers from harm.                                 

Breach of Duty

​

What the defendant did, and whether this act or omission fell below the duty of carefulness owed under Tort Law is the primary issue to be decided in most Tort Law litigation. In most cases this is considered a question of fact for the jury to be determined based on the testimony of witnesses and other evidence presented at trial. For example whether a store used a certain type of floor  wax and breached their duty of care owned to customers by making the floor too slippery when wet.

However, an important exception to the rule of leaving this determination to the discretion of the jury arises in the situations involving statutory violations by defendants. This Doctrine known as "Negligence Per Se" is a big issue in Tort Law and gets bigger every year as more and more statutes and safety regulations are enacted. It is almost the rare case now days that does not involve attempts to invoke the Negligence Per Se doctrine based on alleged violations of some law or regulation.    

​

Negligence Per Se. Breach of duty under Tort Law is found as a matter of law when an accident results from a defendant violating a statute which was enacted for the purpose of avoiding that type of accident. Such statutory violations resulting in accidents are called "Negligence Per Se". Although defendants can attempt to argue they did not violate the statute, once the violation has been established, the Negligence Per Se doctrine conclusively presumes that the defendant violated their Duty of carefulness. 

​

-Legislative Enactment vs Ordinance or Regulation.

Based on the thicket of safety regulations involved with such things as driving and building construction, many courts have found regulatory violations to be merely evidence of negligence rather than Negligence Per Se. Frequently application of Negligence Per Se turns on whether the law in question was enacted by a state legislature (which have constitutional authority to modify the Common Law) or by County or City governments or administrative agencies lacking such power.

​

-Class of persons and type of harm the law is designed to address.

If the Negligence Per Se doctrine is found applicable to particular law, it is still necessary to show that the accident itself was of the type the law was designed to prevent. For example, laws simply limiting hours of operation for various businesses would generally not give rise to Negligence Per Se on a slip and fall case against a business that stayed open late. Similarly, laws against leaving keys in a running car would not create Negligence Per Se liability if the person taking the car had permission.           

​

-Causation.

It of course is also necessary to show that violation of the law in question is what actually caused the harm. For example, Negligence Per Se would not apply to someone driving a stolen vehicle involved in an accident if the fact that the vehicle was stolen had nothing to do with the cause of the collision.

​

-Other issues of Fairness.

Questions about the fair application of Negligence Per Se arise in a number of situations such as insensible or obsolete laws, laws generally ignored,  momentary or inadvertent violations, and laws impossible or difficult to follow. In summary, there is always room to argue in Negligence Per Se situations that it is fundamentally unfair to equate violation of a law with unreasonable carelessness.             

​

​

​

Causation and Contributory Negligence

​

-Cause in Fact. Separate and apart from the question of duty and its breach, defendants are of course never liable for accidents they in fact did not cause. There are many many circumstances where persons suffer injuries at the same time and place where careless conduct is occurring, but the accident was caused by something else. For example, our store's use of the slippery wax would be a clear "cause in fact" of an accident is someone slipped on it. But what if they had tripped instead of slipped and the slippery floor had nothing to do with it? In this case the store's breach of duty in using the slippery wax would not be a "cause-in-fact" of the accident and no liability would arise for the store regardless of its breach of duty over the slippery wax. 

​

-Proximate Cause. But “causation” as used in Tort Law requires something even more than "cause-in-fact". It also requires what is known as “Proximate Cause” which means the harm must be a reasonably  “foreseeable” result of the breached duty, in addition to it being a cause-in-fact. For example, let’s say the slippery store wax was so shiny that a reflection off the floor temporarily blinded another shopper resulting in a fall. Here although our store's breach of duty clearly was the cause-in-fact of the accident (i.e. it would not otherwise have happened), it would likely not be considered a foreseeable enough result of the breach of duty to be considered a legal cause i.e. "proximate cause" of the accident.

​

-Contributory Negligence. The last question which must be resolved before a negligent defendant can be found legally responsible, is whether or to what extent the victim themselves were at fault. This area of the law, is undergoing significant change based on evolving societal standards, legislation, and the presence of insurance. There was a time when Tort Law recovery on the theory of Negligence was only allowed if the victim was entirely free of fault. Since accidents in hindsight can usually be seen as avoidable if the victims exercised sufficient caution and attentiveness, this bar to recovery for contributory negligence had profound effects on the ability of injured persons to be fairly compensated for their injuries. In most states today, proportionate fault statutes have removed this obstacle to recovery by requiring juries to assign percentages of fault and damages to each defendant and victim. This effort at increased fairness to victims, however, has presented difficulties of its own where defendants with a minimal % of fault are sometimes held liable beyond the limits of their insurance in cases where catastrophic injuries result in very large damages.                

​

Damages

​

Close calls are of course much more common than serious injury accidents. But under Tort Law, no matter how careless someone might have been, the careless conduct only creates legal Tort liability if the result of the carelessness is actual harm i.e. “Actual Damages” to persons or property. It is a fundamental aspect of Tort Law that although egregious acts of carelessness or worse happen by the minute across our society, they entirely escape the reach of Tort Law if they do not result in any or sufficient "Actual Damages" to support a lawsuit.

​

The amount of damages awarded at trial is a question for the jury and is regarded as the jury's most important role. As a general matter, there is no upper or lower limit on the level of damages a jury may award. The extreme uncertainty presented by this wide latitude given to juries in our system of justice is what drives most Tort Law cases to settle prior to the rendering of a jury's verdict. For serious injury cases which make it to a jury for decision, extreme effort is expended by attorneys on both sides attempting to predict and influence they jury's damage award.

​

Tort Law damages are divided between Punitive Damages and Compensatory Damages.

​

Punitive Damages. Under the laws of most states, some types of harmful conduct by defendants is regarded as so egregious as to warrant punishment to deter future conduct, in addition to simply compensating the injured person for harm done. The types of conduct which is subject to punitive damages varies by state, with many states having very few if any circumstances where punitive damages are allowed. One factor which in practice limits the use of punitive damage claims by attorneys is that most Liability Insurance policies exclude coverage for Punitive Damages, and some states have an outright bar to allowing insurance for punitive damages. Based on this, lawyers frequently avoid complicating their prospects of insurance recovery by requesting Punitive Damages except in cases against large corporate defendants with substantial assets beyond Liability Insurance.      

​

Compensatory Damages. 

It is a fundamental aspect of Tort Law (except where Punitive Damages are allowed) that Damages Awards are intended to compensate injured plaintiffs for their harm, not punish defendants for causing it. Compensatory Damages consist of Economic Damages, Non-Economic Damages, and in some cases Attorneys fees. Most elements of damages cannot be determined mathematically and are instead simply estimates by the jury of the amount in their minds necessary to reasonably compensate the injured person for their loss.  

​

-Economic Damages include past and future medical expenses, past and future lost wages, the cost of doing things the injured plaintiff can no longer do (need for an Uber for example), and the value of lost years of Life Expectancy. 

​

-Non-Economic Damages include compensation for past and future Pain and Suffering consisting of physical pain, and past and future Emotional Distress which includes such things as fright and shock from the accident itself, humiliation due to disfigurement or disability, depression and unhappiness from being unable to engage in former activities, and anxiety about the future.    

​

Medical Bills Covered by Medical Insurance.

On of the most contentious issues in Economic Damages is whether jury awards to injured person should include medical expenses if they were paid for by medical insurance rather than by the injured person. Although intuition might suggest otherwise, the law of most states does require or allow juries to pay injured persons for medical care they received whether or not they actually paid for it. This counterintuitive result is called the "Collateral Source Rule", and it is based on two main premises; 1) The injured person did in fact pay for medical care, albeit indirectly, through medical insurance premiums they had paid, so it would be unfair to let the wrongdoer rather than the injured person benefit from these payments. The analogy usually cited to support this view is that no one would think that a wrongdoing who's carelessness kills someone should escape Tort liability because the person they killed had life insurance. It is argued the medical insurance is exactly the same, and the wrongdoers should not escape liability to victim who are responsible enough to carry medical insurance. 2) The second main reason supporting the Collateral Source Rule is that the injured person might in fact end up having to pay back the medical expenses and it would create too much complexity and uncertainty to have to get into the weeds of complex medical insurance subrogation reimbursement issues in every accident case.

​

There are of course counterarguments to the Collateral Source Rule which have prevailed in a some states based on the premise that; 1) It is a simple matter in most cases to find out if medical costs must be paid back from a jury award (Medicare=Yes, HMOs=Yes, Everything else=No) and 2) Allowing injured persons to receive payment for large medical expenses they never owe creates an undeserved windfall which drives tort litigation and deceives juries who believed these expenses are paid by the plaintff.    

​

Recovery from Joint Tortfeasors

It is common if not usual in serious injury cases for there to be Negligence allegations against more than one Defendant. When injured Plaintiff's allege the carelessness of more than one party resulted in their injuries, the Defendants are referred to as "Joint Tortfeasors" and special rules apply to recovery of Damages including the rule of Joint and Several Liability.

-Joint and Several Liability is based on the concept that frequently there will be multiple parties at fault in an accident, and also frequently there will be some Defendants with little or no insurance or assets from which to pay an award. This course occurs with small entities operating without insurance, but it is also seen with larger defendants who are winding down their business and whose insurance has be exhausted in prior lawsuits. Defendants without assets or insurance are frequently referred to as "Judgement Proof" in that a judgement against them is worthless since it cannot be collected.  Under Joint and Several Liability defendants with assets or insurance are forced to pay not only their own percentage of the Damages, but they also must pay the percentage of fault the jury assigns to Defendants found to be Judgment Proof. This rule is based on the concept that it is more fair to make defendants with some measure of fault completely liable, than it is to make completely innocent plaintiffs bear uncompensated harm. The rough justice of this thinking, however, began to breakdown in with the adoption of comparative fault where a 1% liable defendant with assets could be held responsible for 99% of the harm caused by others. Although the harshness of this result for minimally liable Defendants was ameliorated by insurance, it was exacerbated by the fact that juries determining damages and percentages of fault were not told, and thus frequently felt deceived when they found that a defendant they intended to release with a minimal finding of fault were in fact responsible for the entire award. 

Tort Reform

Due to concerns about excessive Tort Law awards and the rising cost of Liability Insurance, most states have enacted or have attempted to enact Legislation which changes the original Common Law rules for Joint and Several Liability and Non Economic Damage awards. These groups of Statutes are frequently referred to by the moniker "Tort Reform" although their scope and applicability vary widely from state to state.

-Washington. In Washington, one important tort reform change has been RCW 4.22.070 which limits Joint and Several liability to situations where the injured person is fault free, or when those causing the injury were acting together in some way. This eliminates Joint and Several liability in the most common multi-car accident cases where the victim receives a percentage of fault. But it preserves it in the common situation where accidents are caused by different companies, or employees of different companies working together on construction sites. Another important aspect of Tort Reform in Washington is the addition of "Reasonableness Hearings" when injured persons settle with some defendants but proceed to trial against other joint tortfeasors. Under RCW 4.22.060 these settlements can be approved by the court after a hearing on the fairness of the settlement amount, and once approved, the settling defendant is no longer at risk of being sued for contribution by remaining defendants who feel the settling defendant should have paid more and received a higher percentage of fault.            

-Oregon. In Oregon, an interesting aspect of Tort reform legislation are provisions which make Joint and Several Liability in many circumstances available only after the injured party who has prevailed at trial has tried for a year to collect the judgment from the judgment proof defendants. Only after this effort can the injured party come back to court and ask that the unsatisfied portion of the judgment be assessed against the lower fault but higher resourced defendants.    

-Constitutional Challenge to Damage Caps. A fundamental feature of our adversary system of Tort Law justice, is that an initiative by one side seldom goes long without a response by the other, and in the case of Tort Reform this response came quickly with challenges to the constitutionality of the Legislative Branch of government's authority to limit the amount of compensation awarded to injured persons. These challenges were brought under the Constitutions of individual states so the results varied by state. But by and large, the State Supreme Courts of most populous states have invalidated to various extents Tort Reform efforts to limit the amounts of allowable Pain and Suffering awards. As a result, there are many Tort Reform laws on the books, but which in fact have no legal force or effect because they have been invalidated by decisions of the States' Supreme Court.       

"Reptile" Theories of Jury Deliberations

Another important response to Tort Reform efforts has been increased use by plaintiff attorneys of social and neuro science based techniques to persuade the jury. This approach was based on discovery or rediscovery of the fact that people are subject to peer pressure, that they have a hard time placing a dollar value on pain and life, and if placed in a fearful or angry mood, a mentality to exact revenge on the wrongdoer can takeover. Psycho-social based jury techniques are sometimes referred to as "Reptile" techniques based on the teachings of famed jury consultant David Ball and others. Some of the more common psycho-social approaches are:

-Creating a Jury Tribe where lawyers during jury selection instead of asking questions designed to weed out jurors with bias, instead cause jurors to interact with one and other and create psychological bonds designed to increase peer pressure on jurors who might oppose large awards. To accomplish this, jurors are encouraged to look at fellow jurors and comment favorably on their remarks. The process has been compared to a host at a dinner party going around the room introducing people to each other and facilitating group interaction. 

-Getting jurors to disqualify themselves where instead of rejecting jurors for cause based on their answers, prospective jurors are told stories. For example, that they are like judges at a pie eating contest and if they harbor feelings against personal injury lawyers or people who sue for large damage awards, they have an obligation to forgo jury duty because it is the same as if they were a pie contest judge but came in disliking cherry pie.           

-Pain by the Minute where jurors are asked for example how much they would charge to let someone crush their thumb with a hammer, and then to multiply whatever the dollar amount is for one second of intense pain by the number of seconds left in the injured persons life.

-Last Years Worth the Most whereas juries traditionally have not been willing to give large damage awards to elderly victims with limited life expectancies, attorneys now reframe the question by asking who of them would not give up all the money in the world for one more year of life with their family.

-Professional Football Players where jurors are told about all the professional football players who have given up $10 or $20 million per year by retiring early due to pain, and that the pain suffered by the injured person in this case is as bad or worse than that.    

-Lottery Ticket where jurors are told an elaborate story about a mysterious stranger who wants to hand them a winning lottery ticket worth millions but in exchange they must give up all the things in life they enjoy, and then the jury is asked who among them want the ticket.

-Protect your Family where jurors are convinced that unless they arrive at a large award, the defendant will repeat the negligent behavior and could do the same thing to their own loved ones, and it is the jury's duty to stop them in order to protect their own families.    

-Metaphor where projected or poster board images are displayed to jurors equating the accident victim's circumstance to something with visceral appeal, for example images of a prisoner in a cell might be used to express how a victim's injuries from the accident keep them imprisoned in their own home or in a walker or wheelchair.

-Anchoring where is was once thought that asking juries for multimillion dollar damage awards would cause jury backlash and the requesting lawyer to lose credibility, psychosocial studies have now demonstrated the opposite effect, with the larger the request the higher the anchor point for jury deliberations.     

-Focus Groups and Mock Trials regardless of which psychosocial messaging techniques are employed in a given case, no major cases are tried to a jury today without testing various approaches on focus groups or mock juries to determine how actual potential jurors will react. Virtual focus grouping over the web now allow attorneys to try a wide array of different approaches on dozens or even hundreds of different mock jurors in order to select the best messaging approach as well as predicting the amount of damages a jury may award.