Northern Virginia Injury Lawyer & Attorney : Brien Roche Law Firm : Medical Malpractice, Product Liability, Car Accidents : Washington DC, North Virginia, Maryland

Another important principle in liability in a tort action is joint and several liability. Under the principle of joint and several liability, each defendant is 100% liable for the judgment that is rendered. This principle has been under a good deal of attack lately because it can create circumstances wherein a defendant can wind up paying more than his or her fair share of any judgment, especially if the other defendant cannot afford to pay.

Joint and several liability is something that is well ingrained into our legal system. The rationale behind it is to make sure that the plaintiff can obtain full recovery for whatever judgment is entered. It then becomes the burden of the defendants against whom the judgment has been entered to fight among themselves as to any eventual sharing of that liability.

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The final element of any tort claim that must be established is damages. Damages may be thought of as the injury incurred. The injury may come in the form of personal injury such as a broken arm or leg, pain and suffering, emotional distress, medical expenses, lost wages, or permanent disability. Pain and suffering is an elusive concept. The words themselves best define the concept. When you are physically injured, it would be expected that you would experience some pain, anguish, or emotional stress. Normally, a jury in an injury case is called upon to award a monetary amount for that pain and suffering along with the other damages that are claimed.

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The truth is always a complete defense to a defamation claim.

Some statements, although defamatory, are protected by a qualified or absolute privilege. For instance, a statement made by an employer about an employee to a new prospective employer may be governed by a qualified privilege. The idea is to allow employers to freely exchange information about employees. What that means is that the employee in a defamation action against the former employer may have to claim and prove that there actually was some malice in the statements that were made.

An absolute privilege would be one that is an absolute bar to a claim for defamation. For instance, comments made in the course of a judicial proceeding are generally governed by such a privilege. The idea is to allow the parties to freely exchange comments during such a proceeding.

Claims of false imprisonment and malicious prosecution arise in the context of a person improperly restraining another person or initiating a criminal prosecution that is subsequently found to be unjustified.

Fraud is the intentional misrepresentation of a material fact made for the purpose of inducing reliance and that does induce reliance to the detriment or damage of the plaintiff. Fraud is a very difficult thing to prove. Unlike most civil claims that must be proven simply by a preponderance of the evidence or what is referred to as the greater weight of the evidence, fraud claims must be proved by clear and convincing evidence, which is a much higher standard and much more difficult to prove. The reason for the higher standard of proof in fraud claims is that the law recognizes fraud as an offense involving surreptitious behavior that may be subject to different interpretations. It is therefore felt that the plaintiff should have a more difficult burden of proof in these types of claims than would apply in the run-of-the-mill tort claims that may be asserted.

Another intentional tort is called the intentional infliction of emotional distress. To pursue such a claim, you must prove that the conduct of the defendant was intentional and outrageous, that the conduct caused emotional distress, and that the emotional distress was severe. It is often difficult to meet all of these elements.

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Aside from the types of claims mentioned previously, there are several intentional torts that can be asserted. Those intentional torts consist of such claims as assault and battery, conversion, defamation, false imprisonment, fraud, malicious prosecution, invasion of privacy, trespass, and the intentional infliction of emotional distress. All these claims have specific elements that must be met and proved in order for a plaintiff to prevail.

A battery is simply an unwanted touching of one person by another. Conversion is the taking of a person’s property without that person’s consent. (Conversion in the civil system is similar to larceny in the criminal system.)

Defamation can come in either written (libel) or oral (slander) form and consists of making injurious statements about a person that are untrue. If the injurious statements involve an imputation of a criminal offense, involve moral turpitude, impute a contagious disease, impute unfitness to perform the duties of office, or include words that prejudice a person in his or her profession or trade, then they may be referred to as being defamatory per se.

If the alleged statement is not defamatory per se, then the plaintiff may have to prove what are called special damages in order to recover against the defendant. Special damages would come in the form of out-of-pocket expenses incurred as a result of those defamatory statements.

Example: If you are a surgeon and David calls you a butcher, that is a statement that is defamatory per se. You could assert a defamation claim against David even though you may not have incurred any special damages (any out-of-pocket expense as a result of the making of that statement).

Keep in mind that truth is always a complete defense to a defamation claim.

If, on the other hand, you are unemployed and Sarah calls you a crook, and as a result of making that comment you incur so much emotional distress that you seek psychiatric help, you may have a basis for a defamation claim against Sarah. Even though the comment made is not defamatory per se, the fact that you have incurred medical expenses as a result of Sarah making the comment about you satisfies the special damages requirement. It gives you the basis for a defamation claim against Sarah.

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Strict liability means that the defendant is liable for his or her conduct in certain instances, even without a showing of actual negligence, if that conduct was a cause of injury to the plaintiff. Strict liability normally only arises in regard to activities that are extremely dangerous. For instance, if you are operating a quarry and in the course of blasting with dynamite you damage the home of one of your neighbors, that neighbor may not have to prove that there was any negligence on your part in the blasting operation, but simply has to prove that the blasting was the cause of damage to his or her home. In that circumstance, the party conducting the blasting may be strictly liable for any damage that results from that dangerous activity.

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Vicarious Liability
A significant concept within tort law is vicarious liability. The concept of vicarious liability means a principal may be liable for the conduct or the misconduct of his or her agents. That principal/agent relationship arises in the employment context between an employer and an employee. It may also arise in other contexts involving contractors. From a plaintiff’s point of view, the concept of vicarious liability is important because it typically is that legal concept that allows for complete recovery of damages. For instance, if you are rear-ended by a truck driven by an employee of the ABC Company, your attorney would file the claim against not only the driver, but also the employer. If suit was filed only against the driver and it turns out that there was no insurance covering that vehicle, then whatever judgment you got against the driver may be uncollectible simply because the driver may not have the financial resources to pay the judgment. If, however, you get the judgment also against the employer, then that employer probably would have the financial resources either in the form of insurance coverage or otherwise to satisfy the judgment.

The employer in that case is liable for the conduct of the employee, assuming that the employee was acting within the scope of his or her employment. If, on the other hand, the employee was on a personal mission while operating a company vehicle and the employer had no knowledge of it and had not consented to it, then there may be no vicarious liability. Perhaps the employee was acting on his or her own and was not doing anything on behalf of the employer at the time of the collision.

The concept of vicarious liability has been the subject of a good deal of litigation over the years.

Example: Suppose an insurance salesman comes into your home to sell you insurance on behalf of the XYZ Company. He presents to you his business card along with all the brochures of the XYZ Company. He convinces you that based upon the extensive advertising of that Company and because of the well recognized name that this is a very reputable company. Based on that you purchase a policy of insurance and tender a check in a substantial amount. If the salesman then
absconds with the money, is the XYZ Company liable for your loss?

They probably are even though that salesman may not be a direct employee of the company. The salesman in that instance may be an independent contractor, but the XYZ Company is probably still liable because it is the one who gave that salesman all the trappings of authenticity, gave him the opportunity to engage in his fraudulent behavior, and essentially set the whole process in motion through the use of its company name and company advertising.

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Res Ipsa Loquitur
Literally, the term res ipsa loquitur means the thing speaks for itself. Res ipsa loquitur is a rule of evidence that states that a jury may conclude that a defendant is negligent if:

* the plaintiff has been injured as a result of an instrumentality (some tool or object) that is in the exclusive control of that defendant;

* the defendant has or should have exclusive knowledge of the way that instrumentality was used; and,

* the injury is one that would not normally have occurred if the instrument had been used properly.

Example: Suppose you are walking down the street and a dresser drawer falls on your head. It so happens that the dresser drawer came from the apartment window above. It had been placed there by the tenant who was doing some spring cleaning and the tenant accidentally bumped the dresser drawer. Have the elements of res ipsa loquitur been met in that instance?

They probably have been, in that the dresser drawer was in the exclusive control of the defendant, the defendant had exclusive knowledge as to how the dresser drawer was used, and finally the injury is one that would not normally have occurred if the dresser drawer had been used properly. As long as you can prove those basic elements, you probably would be entitled to recover money against that tenant for her negligence.

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You have probably heard of the term attractive nuisance. That is a concept of negligence that is recognized in many states. An attractive nuisance is an object that by its very location and configuration is attractive and also dangerous to children. If the owner of that object allows it to remain accessible to children knowing that it will attract them and knowing that they probably will be injured if they come in contact with it, that may be a basis for a negligence claim against the owner of that object.

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Children
Many tort claims that are brought involve children. Children, in general, are given a favored status in the law, meaning that they have special protection. This is likewise true in regard to tort claims. For instance, in regards to negligence claims, children under 7 years of age are generally legally incapable of committing any act of negligence.

Children between the ages of 7 and 14 are generally presumed to be incapable of committing negligence, although that presumption can be rebutted with the presentation of evidence showing that the child is capable of committing a negligent act because of his or her intelligence level, experience level, or other factors that may bear on that.

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In addition to proving that there was a breach of the standard of care by a doctor, the plaintiff must also show that the breach was a proximate cause of the plaintiff's injury.  In the example of the puncture of the arterial wall by the catheter, the defendant may argue that even if that was negligence, the patient only had a 5% chance of survival and therefore was probably going to die anyhow. As such, any negligence that may have been committed was really irrelevant.  This is a frequent defense raised in professional negligence claims and is frequently one that has some merit --- the doctor may have been negligent, but the patient would have died anyhow.  This reemphasizes the importance of the concept of proximate cause. That is, even though the doctor may have been negligent, the negligence may not have been a cause of injury since the patient may have suffered dire consequeneces in any event.  

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Standard of Care
In most negligence claims, the issue of standard of care arises. In an automobile accident case, the standard of care is defined by the traffic regulations. For instance, the traffic regulations dictate that you shall not enter an intersection on a red light. That regulation establishes the standard of care by which all persons are bound in terms of passing through an intersection. In other contexts there may be building codes or other state or local codes that establish the standard of care by which property owners are bound. Those codes can be the basis upon which a negligence case may be founded because they establish the standard of care to which the defendant is held. If the defendant has violated that code, then that may be evidence of a breach of duty by that defendant. If that breach resulted in damage to you, then you may have a basis for a negligence claim against the property owner.

The concept of standard of care becomes especially important in certain types of professional liability claims—medical malpractice claims, legal malpractice claims, or architectural malpractice claims. In those types of claims, the plaintiff has to establish what the standard of care is. The standard of care is established by means of the presentation of evidence by experts in that field. For instance, if in the course of your heart surgery the surgeon happens to penetrate your coronary artery with a catheter and you suffer irreparable damage, has the standard of care for that procedure been violated? That is not something a nonmedical person could answer. Therefore, it is not something that a group of jurors could answer as nonmedical people unless they hear evidence from a medical expert establishing what the standard of care is.

The standard of care in that particular instance may be that the surgeon, through the use of radiological instruments, should have been able to tell where the catheter was going and therefore should have known when he or she was about to puncture the arterial wall. The surgeon could have avoided the rupture if he or she had been attentive to the radiological instrument that showed where the catheter was.

In that instance, the standard of care evidence presented by the plaintiff may show that the doctor was negligent in puncturing the arterial wall with that catheter. You can rest assured that the defendant doctor will bring in his own medical expert who will refute that and who will state that there is no breach of the standard of care in this circumstance. It was simply an unfortunate accident that happened and that there was no negligence on the part of the doctor.

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Professional Liability
Professional liability claims may come in the form of medical malpractice actions, legal malpractice actions, accounting malpractice claims, or architectural malpractice actions. In many states, the medical profession has been granted certain special protections. For instance, some states have imposed a cap or a limitation on the amount of money that can be recovered against any doctor or health care provider as a result of their negligence. The reason for that cap on damages is to help hold down the cost of medical malpractice insurance coverage for health care
providers.

In addition, some states have imposed special requirements that must be met before a doctor or a health care provider can be sued. In some cases the plaintiff must have the claim reviewed by a medical malpractice review panel that makes a preliminary determination whether the claim has any merit. The decision rendered by the medical malpractice review panel may in some instances be admissible in evidence if the case is tried in front of a jury.

A professional liability claim is different from any other type of tort claim that may be asserted. With these types of claims, the plaintiff typically has to present testimony from a witness who has some expertise in that field as to the standard of care that should have been adhered to by that professional person. Evidence must then be presented as to the breach of that standard of care and how that breach caused damage to the plaintiff.

In a medical malpractice action, that testimony typically comes from another medical doctor in the same field of expertise as the defendant that is being sued. The same concept applies normally in legal malpractice actions and also in architectural malpractice actions. There could be some instances when expert testimony would not be necessary because the negligence is so obvious that there is no need to bring an expert witness into court to explain the technical aspects of the case.

For instance, if a patient goes into the hospital for an operation on the right knee and the doctor ends up operating on the left knee, there is no need for expert testimony to establish that the standard of care is that the doctor should have operated on the right knee. Any reasonable person would know that the operation on the left knee was unnecessary and therefore was negligent on
the doctor’s part.

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Product Liability
A product liability claim is one in which a person contends that a particular product is defective in some way and that defect has caused injury. You may recall a famous product liability claim that was brought against Ford Motor Company many years ago relating to its Pinto automobiles. Ford made an engineering decision to place the gas tank on the Pinto in the rear of the vehicle, even though it knew that placing the gas tank in this location could result in serious injury to the occupants if the vehicle was involved in a rear end collision.

Documentation was produced during litigation that Ford knew or should have known of that risk, yet made a conscious decision to continue to keep those vehicles on the road because it felt the overall financial benefit would weigh in its favor, even if it had to pay several million dollars in claims as a result of injuries.

The jury in one of those cases returned a very substantial award against Ford Motor Company for compensatory damages for the injuries suffered by the plaintiff. The jury also awarded substantial punitive damages to punish Ford for its wrongful conduct in not taking the vehicles off the road or warning the public of the dangers associated with that vehicle.

Another fairly well known product liability case involved a McDonald’s restaurant. In that case, an elderly woman purchased a cup of coffee from a drive-in window at McDonald’s. She apparently placed that cup of coffee between her legs and subsequently spilled the coffee. The case received a good deal of attention because it was touted by the insurance industry as an example of a runaway jury verdict. In fact, the insurance industry failed to disclose to the public that in that particular case the plaintiff had made an attempt to settle the case simply for her medical bills, which were substantial because she was hospitalized for over a week. McDonald’s, however, refused to entertain any reasonable settlement offers.

The evidence that was presented at trial was that McDonald’s had been warned on many occasions that their coffee was approximately twenty degrees hotter than what was recommended by the local health department and was so hot that it could cause third degree burns. In fact, the coffee served by McDonald’s was not just hot (135ÌŠ to 140ÌŠ), but at 180ÌŠ to 190ÌŠ was able to cook through all layers of skin within seven seconds. McDonald’s admitted that its coffee was 40ÌŠ to 50ÌŠ hotter than is fit for human consumption and knew that more than seven hundred people, including babies, had been burned by its coffee. McDonald’s, however, refused to reduce the temperature of its coffee because it felt it sold more coffee at that level than it would at a lesser temperature.

The plaintiff in this case was an elderly woman who suffered third degree burns over six percent of her body. The state where that case was tried was a comparative negligence state (see p.133). As such, the jury, having found the plaintiff partially negligent because of how she carried the coffee, reduced her verdict by a proportion that was due to her own negligence.

In addition to awarding a compensatory damage amount, the jury also awarded punitive damages against McDonald’s equal to its gross receipts of two days of coffee sales in order to teach it a lesson. The actual verdict in that case was $200,000 for compensatory damages and $2.7 million dollars in punitive damages. The punitive damage award was reduced by the court on a posttrial motion to $480,000. As a result of that verdict, McDonald’s reduced the temperature of its coffee.

A product liability claim may be founded upon negligence principles, but it may also raise a legal theory known as breach of warranty. Within the sale of a product there is either an express or implied warranty that the product is reasonably fit for the purpose for which it is sold. If it turns out that the product is not reasonably fit for that purpose, then that may constitute a breach of warranty and may give rise to a claim for damages if someone is injured as a result of that breach of warranty. Breach of warranty claims technically are contract claims, but they may be asserted as part of a product liability lawsuit.

Normally, in a product liability claim, the plaintiff will need to present some expert testimony as to what the defect is in the product. For instance, in the Ford Pinto case, the plaintiff had to present expert testimony from engineers to establish that the placement of the gas tank in the rear of the vehicle was dangerous and was not good engineering.

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