LAW BASICS FOR THOSE WITH ONLY ONE FACE – TORTS, NEGLIGENCE

(In honor of the annual shit show known as the bar exam, I’m posting some legal basics for the lay person in each of the major areas tested on the bar.  This is all just what we call “black letter law,” as in simplified and pretty set concepts, and, as always, is not to be taken as legal advice.)

Basic principle: No matter what, no matter where, no matter who, anyone can sue anyone else for anything. (Bonus points if you can name what I’m misquoting 😉  This doesn’t mean it will stick in court and certainly doesn’t mean they’ll win, but they can sue for anything and make you spend beaucoup bucks on an attorney to defend your ass.

Negligence law is under what we call torts. No, it’s not a cake, a tort is a legal term for when someone harms someone else.  So when someone is suing you for some harm it’s usually under torts.  Those are split into intentional, negligence and strict liability (some consider strict liability as a subset of negligence but we’re not going to address it here).

Stuff like a car accident, lighting property on fire with your candles, sitting on a cake in another person’s expensive dress, and dropping a piano on someone’s head are, again we use the word usually, under negligence.  It’s when you harm someone/their property without meaning to do harm basically.

In a lawsuit there are things we call elements of the cause of action, the thing the person is suing about.  And when they sue, the person has to show all those elements, meaning show that if they are telling the truth about what happened, the “tortfeasor” is liable for the damage.

The elements of negligence are duty, breach, causation, and injury.

1) Duty is, as you can probably infer, the duty someone has to look out for another. Doctors have a duty to their patients, parents to watch out for their kids, everyday people driving to look out for others on the road. There’s different standards of care that people can owe to each other depending on the relationship. The standard for average dealings with people on the street without a special relationship is that of the “reasonable person.”

2) Breach is when someone fails in this duty. The doctor did not follow up with the patient after surgery as quickly or often as the industry std said he should.  The parent left the child alone for a few days.  The person driving the car looked down at her phone to check a text, thus taking her eyes off the road.

3) Causation is the tricky part. It’s a two parter. The first part’s easy to get through: the tortfeasor has to be the but-for cause of the injury, as in but-for the person driving, the person walking would not have the broken leg.  Or but-for the doctor performing surgery to get the tumor out, the patient would still be alive that day.

The second part is where is gets messy, it’s proximate cause. Also known as the “direct cause.” It means that the tortfeasor does a direct action that sets in motion an unbroken chain of events leading to the injury with no interference to break the chain. It gets more complicated such as multiple events joined together to make the injury happen, any one of which taken away would have prevented the injury, but the general idea is one cause leads to a chain of events that leads to the injury without something interfering.  (This is a really, really simplified explanation.  Lawyers have a lot of fun screwing around with this element.)

4) Which brings us to our last element, injury. Someone’s dead, paralyzed, pissed about their ruined property, ect…

And my tort professor pounded this into our heads every day of class:

No Injury, No Damages!

Which should mean if a person comes out of you almost hitting them with your car or a piano perfectly fine then you’re safe, but no, because there’s emotional damages and it goes from there, until you can be sued for making someone cry. Doesn’t mean they’ll win in court, but they sure as hell can sue.

 

 

 

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4 thoughts on “LAW BASICS FOR THOSE WITH ONLY ONE FACE – TORTS, NEGLIGENCE

  1. Ha..ha.. A fun read, at least for me a layman. Thanks for this, really. Yet now I’m just curious. Say, we buy the tickets for some standup comedy. So, I guess there are:
    – duty
    – breach (it ain’t funny)
    – causation (on both accounts)
    – injury (everybody getting out of the room feeling depressed)
    Can we sue the comedian?

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      1. Uh, hm.. OK, now that you’re telling me, I’ll comply and forget any plans of suing activities. It’s just that everybody seems trying so hard to be funny now but people everywhere end up being angry, now can you believe that? 😀

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  2. Well hey, this is all unofficial legal advice. Not to be taken seriously. Sue away if you can find a lawyer to take the case, my friend 😉 (Don’t want to take work away from my hard working brethran.)

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