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

Case law is the law as stated in specific cases decided by courts. Case law is in written form, and generally contains a brief synopsis of the facts of the case, an analysis of the legal principles that apply, and a statement of the court’s decision (what is generally known as the holding of the case). The holding is the crux of the decision rendered by that court. Insofar as that court has jurisdiction or authority to interpret the law, the holding then becomes law. Any language in the case decision other than the holding is surplus language, or what may be referred to as obiter dictum (or simply dicta). The dicta within a court decision is not binding law, but rather is simply utilized by that court to explain its rationale.

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The impact of local codes is most often seen in regard to housing, traffic, and zoning issues. For instance, if you want to build a home of a particular type on a specific piece of property, the construction may have to meet certain zoning requirements in terms of height, size, and proximity to the boundary line. In areas where zoning regulations apply, you probably would not be able to build a ten-story home in a residential community with a building height limit of twenty-five feet. Likewise, traffic laws frequently are set forth in local codes, although those local traffic regulations have to be consistent with any state laws passed on those same issues. Again, the issue of preemption applies. For instance, an absurd situation would exist if every locality were allowed to decide whether a green light meant go or stop.

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Whatever authority was not bestowed upon the federal government remains with the state governments.

The most significant limitation upon the authority of the federal government is to enact legislation in the criminal sphere. For instance, the federal government has no authority to pass a statute that prohibits homicide in your private home on private property. The federal government does have the authority, however, to pass a law prohibiting homicide on federal land, in a federal building, or against a federal officer. As such, most criminal prosecutions are initiated in the state
courts under state law, because the authority of the federal government to enact criminal law truly is limited.

Example: The dichotomy between federal and state law was found in the Rodney King case in Los Angeles, in which police officers were accused of beating a criminal suspect. Those police officers were first tried under state criminal laws and were acquitted (i.e., found not guilty).

The federal government then stepped in and decided that those same police officers would be prosecuted under federal civil rights laws. The federal government had no authority to prosecute them for the crime of assault, since the crime in question did not occur on federal territory, did not involve a federal official, and did not involve a distinct federal interest as far as the assault only was concerned.

The federal government, however, has passed laws that make it a crime for certain persons acting in official governmental capacity to violate the civil rights of people. Those police officers were then prosecuted in the federal court under that federal law. It is in the criminal field that you see the authority of the federal government most clearly restricted in terms of its ability to enact legislation prohibiting certain types of crimes.

At first blush, it would seem that this is a violation of the double jeopardy clause contained within the Fifth Amendment of the United States Constitution. It has been held, however, by
the courts that it is not a double jeopardy violation since there are two separate sovereigns
involved—the federal government and the state government. In addition, there were two separate offenses involved—one was the offense of assault under the state code and the other was a civil rights violation under the federal code.

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The federal statutory laws are found in the United States Code. The copy of the Code that most lawyers are familiar with is the United States Code Annotated. The term annotated means there are notations following the code section from court cases that have interpreted or applied that particular statutory code section. The annotations are frequently helpful in interpreting what the true meaning is of that statutory code section.

Most state codes are annotated and contain court decisions from both state and federal courts interpreting the various code sections. Local codes tend not to be annotated simply because the local governments that publish the local codes do not have the financial resources to annotate their local codes. Also, there tends not to be a great volume of case law interpreting local codes.

There is a shorthand abbreviation that is used for references to the United States Code. For instance, 28 USC §1392 is a reference to Title 28 of the United States Code Section 1392. The United States Code contains many volumes, like a set of encyclopedias. All of the titles are numbered sequentially on the binding of each volume. 28 USC §1392 would be found in one of the volumes marked Title 28. Within those volumes, §1392 would be found sequentially.

The state codes may have their own distinct numbering system. For instance, in regard to the Virginia Code, references to a code section would be to a specific numbered section such as Virginia Code Section 8.01-234. That is a reference to Title 8.01. Within that title, you would look for the code section designated as 234. Local codes may be designated in a similar fashion.

The volume of legislation that has been passed by the United States Congress is, in many respects, mind-boggling. There is federal legislation on virtually every issue. It is important to keep in mind, however, that the federal government, even though it seems to be involved in every aspect of our lives, is still a government of limited jurisdiction. You may recall from the section dealing with constitutional law that our founding fathers established the federal government as a government of limited authority with the understanding that whatever authority was not bestowed upon the federal government remained with the state governments. You would never guess that by looking at the volume of federal legislation.

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A general principle that applies to this statutory scheme is a principle known as preemption. When there is a conflict on a specific issue between federal statutory law and state statutory law, federal law will generally preempt, or supersede, the state law. That same principle applies in regard to a conflict between state law and local law. Local government cannot enact legislation that is contrary to the state statutory law. The logic behind this concept is that there has to be one entity that is supreme. For instance, it would be an absurd situation if the federal government passed an income tax law and then certain states decided that their citizens would not have to comply with that law. The American Civil War was fought in part over the issue of states’ rights—whether the federal government was going to be supreme or whether the states were going to be supreme on the issue of slavery.

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Statutory law falls into three categories—federal statutory law, state statutory law, and local statutory law. The federal statutory law is found in the United States Code. The state statutory law is found in the state code enacted by the legislative body that governs that state. Local statutory law is found in local codes and ordinances. Those local codes may be county codes, city codes, or town codes that are enacted by the local governing body.

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Aside from the U.S. Constitution, each state within the Union has a state constitution. Those state constitutions may vary dramatically from one state to another. The key point to remember in regard to the state constitution is that it may bestow additional rights upon the citizens of that state, but it cannot restrict the rights guaranteed under the U.S. Constitution.

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All of the amendments are important. A brief description of the other amendments to the U.S. Constitution follows.

* The Eleventh Amendment states that federal courts do not have the authority to hear lawsuits brought by a citizen or non-citizen of one state against another state in the Union. (This is not to be confused with diversity jurisdiction.)

* The Twelfth Amendment deals with the functioning of the electoral college.

* The Thirteenth Amendment abolishes slavery.

* The Fifteenth Amendment extends the right to vote to all citizens.

* The Sixteenth Amendment allows for income tax to be imposed.

* The Seventeenth Amendment deals with the number of senators for each state and how vacancies in a senate seat are filled.

* The Eighteenth Amendment enacts prohibition.

* The Nineteenth Amendment grants women the right to vote.

* The Twentieth Amendment deals with presidential succession and the convening of Congress.

* The Twenty-first Amendment repeals prohibition.

* The Twenty-second Amendment imposes limits on how long a person can serve as President.

* The Twenty-third Amendment allows the District of Columbia electors to vote for President and Vice President.

* The Twenty-fourth Amendment establishes the right of citizens to vote without being restricted by paying a poll tax. This is an Amendment principally designed to prohibit states from precluding certain citizens from voting by imposing financial restraints on them.

* The Twenty-fifth Amendment deals with presidential succession.

* The Twenty-sixth Amendment gives 18-year-olds the right to vote.

* The Twenty-seventh Amendment prohibits congressional pay raises from taking effect until the next election of representatives.

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There are numerous other amendments passed over the years that are significant. Perhaps the most important of those is the Fourteenth Amendment—one of the post-Civil War amendments ratified in 1868. This Amendment contains several clauses, the most important of which is the so-called Due Process Clause, which expressly indicates that no state shall deprive any person of life, liberty, or property without due process of law.

You may recall that within the Fifth Amendment there is a due process clause. That due process clause, as is true of the first ten amendments, was deemed to be a restriction of federal power and not state power. This meant that the federal government could not deprive any person of life, liberty, or property without due process of law. That restriction, however, did not apply to the states until the enactment of the Fourteenth Amendment. Through the eventual interpretation of the Due Process Clause contained within the Fourteenth Amendment, most of the rights contained within the Bill of Rights were deemed to be no longer simply a restriction on federal power but also on state power. This means that those rights contained within the Bill of Rights apply to citizens not only when dealing with the federal government, but now also when dealing with state and local governments.

The Fourteenth Amendment also contains what is known as the Equal Protection Clause. It states that governmental authority may not be used to deny any person equal protection of the laws. Over time, that equal protection clause was interpreted to preclude governmental authority from denying black citizens the same protection of the laws as were accorded to white citizens.

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Outdoor decks that are above ground level are a frequent source of litigation. Most local jurisdictions and states have very specific requirements as to how a deck is to be constructed in terms of the flooring and the guardrail system. The problems that decks pose can come in a number of forms but the most common forms are the flooring giving way or the guardrail giving way resulting in personal injury.

Code requirements for decks can vary from one jurisdiction to another but in general there are very specific requirements as to how floor joists (supports) are to be spaced and attached to the existing structure. In addition, typically there are very specific requirements as to how the guardrail system is to be constructed and secured. If a person suffers personal injury as a result of a deck collapse or a guardrail collapse, the contractor who built the deck may be liable for that injury.

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Spring and summer are the time of the year when we most often hear about children falling out of windows either in apartment buildings or homes. Most windows have screens on them. Screens are somewhat deceptive in that even though they are technically intended to keep bugs out they create a false sense of protection in that they create a barrier that most adults believe will not be crossed. Children, however, do not necessarily perceive that barrier the same way that adults do. As a result, if you have an open window in an apartment or a house that is above ground level and there are children that have access to that window you need to consider some options in order to avoid personal injury to the children. One of those options is what is called window guards. Many landlords make window guards available to tenants with children. A window guard is simply a guard that goes over the lower part of the window to prevent a child from falling out the window.

Another option is window pins that are built into the side of the window that essentially prevent the window from opening more than three or four inches. That does allow you to get some fresh air into your unit without creating a danger of your child falling out of the window.

Another option is top opening windows, i.e. windows that open from the top as opposed to the bottom.

Those are all options that need to be considered. If your landlord is not offering those options, then you may want to consider proposing one or more of them. If the landlord refuses, then you may need to consider the option of simply vacating the premises.

Landlords who are resistant to any sort of window protection mechanism in apartments where they know children are at risk are potentially liable for negligence if, in fact, a child is injured as a result of falling out of that window.

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The first ten amendments to the Constitution are referred to as the Bill of Rights. They contain many of the most fundamental rights enjoyed by the American people.

The First Amendment states that Congress has no authority to make any law “respecting an establishment of religion or prohibiting the free exercise of religion.” It further states that Congress can do nothing to restrict freedom of speech or freedom of press, or the right of the people to peaceably assemble and to petition the government.

The Second Amendment deals with the right to bear arms, but is written in the context of bearing arms as part of a regulated militia.

The Third Amendment states that the government cannot, in time of peace, quarter soldiers in a private home without the consent of the owner. In time of war, the government may only do so in a manner prescribed by law.

The Fourth Amendment deals with unreasonable searches. It expressly states that people shall be secure in their persons, houses, and papers from unreasonable searches and seizures by governmental authorities. It further states that search warrants may be issued only upon a finding of probable cause. That means there must be a determination made, based upon substantial, believable evidence, that the person to be searched has committed a crime or the place to be searched contains evidence of a crime.

The Fifth Amendment defines the concept known as double jeopardy, which means that a person cannot be tried twice for the same crime. That same Amendment further sets forth the right against selfincrimination—that a person cannot be made to testify against him- or herself. This Amendment also contains the foundation of the Due Process Clause, which states that a person cannot be deprived of life, liberty, or property without due process of law.

Due process is a critical concept to our entire legal system. It requires two things:

1. a person must be given notice of the charges or claims made against him or her and

2. a person must be given an opportunity to answer those charges or claims before he or she can be deprived of life, liberty, or property.

The Sixth Amendment provides for the right to a speedy trial and the right to a jury trial in a criminal proceeding. This Amendment further sets forth the right to confrontation in a criminal case, meaning that a person accused of a crime has the right:

* to confront the witness who is making the claim against him or her;
* to compel witnesses in his or her favor to appear in court and give testimony; and,
* to be represented by a competent lawyer in the defense of that criminal charge.

The Seventh Amendment preserves the right to have a jury trial in certain civil cases.

The Eighth Amendment prohibits excessive bail and further disallows punishment that is deemed to be cruel and unusual. This Amendment has been used to argue against capital punishment and other forms of punishment over the years.

The Ninth Amendment states that just because certain rights are set forth in the Constitution does not mean they are the only rights people have. That is to say, whatever other rights the people have, they still retain.

The Tenth Amendment limits the power of the federal government by stating that powers not delegated to the United States Government by the Constitution and not prohibited by the
Constitution to the states are expressly reserved to the states or to the people. The initial framers of the Constitution viewed the U.S. Government as a government of limited authority. Whatever authority was not placed in the United States Government rested with the states.

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Article One of the U.S. Constitution sets forth the powers of the U.S. Congress. It specifies that there shall be a House of Representatives and a Senate, and defines how those members shall be elected and compensated. It also sets forth general powers and limitations of those legislative bodies.

Article Two of the U.S. Constitution states that the executive power of the government shall be vested in the President. It then defines the extent of that executive power, how the president shall be elected, and what his or her qualifications for office shall be.

Article Three of the U.S. Constitution states that the judicial power of the United States shall be vested in the Supreme Court, as well as inferior courts Congress may establish. The model created in the first three articles of the Constitution is a system of checks and balances. Each branch of government is considered to be equal, and each one in different respects has the ability to check and to balance the others. For instance, the legislative branch has the authority to enact legislation. That legislation is then sent to the president who, as the head of the executive branch, can veto the legislation. The legislative branch may then override that veto. If the law is passed (actually becomes law), then it can be reviewed by the judicial branch for purposes of determining whether it is constitutional and for purposes of interpreting the law. If the legislative branch, for whatever reason, does not like the interpretation imposed on the law by the judicial branch, then it can amend the law so as to expressly state how the law should be interpreted.

Article Four of the U.S. Constitution defines the concept known as Full Faith and Credit, which means that the public acts, records, and judicial proceedings of any one state shall be given full faith and credit in every other state in the union. This Article further defines the term known as privileges and immunities, which means that the citizens of each state shall be entitled to all the same privileges and immunities as the citizens of any other state. The privileges and immunities clause precludes one state from granting certain privileges or immunities to its citizens that would not apply to citizens of other states. For instance, Minnesota could not grant Jesse “The Body” Ventura the sole right to conduct wrestling matches in that state to the exclusion of all persons who were not citizens of Minnesota. To allow that would be a violation of the privileges and immunities clause.

Article Five of the U.S. Constitution provides for amendments to the Constitution.

Article Six of the U.S. Constitution states that this Constitution and the laws of the United States made pursuant to the Constitution shall be the supreme law of the land. That means that if there is any conflict between federal law and state law regarding an issue that the federal government has the right to legislate, then federal law will always be supreme.

Article Seven of the U.S. Constitution provides that nine states are needed to ratify the Constitution before it becomes effective.

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Constitutional violations can only be committed by the government or its representatives.

Hopefully you said “no” to answer that question. The Constitution is a compact between the people and the government. Constitutional violations can only be committed by the government or its representatives. As such, one citizen violating the rights of another citizen is not a constitutional violation at the federal or state level. Your neighbor has violated state law, and he can be charged with that state law violation and also could be sued civilly for trespassing and for damaging your property.

The most important point to keep in mind regarding the U.S. Constitution is that it is the basic framework or foundation upon which our legislative, judicial, and executive branches are built. It defines certain basic rights that the people have and that no governmental authority can take away. The framers of the U.S. Constitution wished to define the authority of government and then place in the people all rights that were not specifically bestowed upon the government.

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The U.S. Constitution is a compact, or an agreement of the people of this land. It sets forth certain basic rights of the people that cannot be taken away and defines the powers of the governmental authority. The U.S. Constitution truly is the foundation of our entire legal system. Some people would say that the rights we enjoy in this country are natural rights, and that the Constitution is simply a clarification of those rights and a limitation on the power of the government to infringe on those rights. Others say that the Constitution itself is the actual source of the rights. But that theoretical argument is probably of little significance to the reader. What is important to remember about the Constitution is that it does set forth the essential composition of our government and how it can interact with us as citizens.

Try a quick test of your knowledge of constitutional law at this point. Suppose your next door neighbor breaks into your home looking for something that he thinks you may have stolen from him. The neighbor conducts a thorough and obviously unreasonable search of your premises without a warrant. Is that a constitutional violation?

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The Constitution that most of us are familiar with is the U.S. Constitution. In addition to the U.S. Constitution, all fifty states have their own state constitutions. To some extent, these are modeled after the U.S. Constitution—but may vary from it. The state constitutions may give the people of that state greater rights than the U.S. Constitution bestows upon them, but it cannot restrict the rights guaranteed by the U.S. Constitution. The U.S. Constitution in that respect is supreme, but more importantly, the U.S. Constitution sets minimum standards that must be complied with by all governmental officers in dealing with the people.

The U.S. Constitution is divided into seven articles and twenty-seven amendments. The Constitution begins with the words—

We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

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If the injury suffered results in the death of a person, then that person’s estate may assert a wrongful death claim. A wrongful death claim occurs when the injured party, rather than having simply suffered personal injury, has actually died as a result of the misconduct of the defendant. A wrongful death claim may be based upon a negligence theory, a breach of warranty theory, or an intentional tort theory, such as assault and battery.

Wrongful death claims are a fairly recent phenomenon. Common law did not recognize wrongful death claims, on the theory that once a person had died, there was no amount of money that could compensate for the loss. As such, a person’s claim died with him or her. However, over the years, the state legislatures have come to recognize that even though death may bring an end to the suffering and damages incurred by the decedent, there may be persons left behind who have been damaged and may continue to be damaged in the future as a result of the passing of the decedent.

Every state has its own wrongful death statute that defines exactly what damages are recoverable under the wrongful death act. Typically the damages recoverable are damages consisting of solace and grief experienced by the survivors, loss of earnings suffered by the dependents from the decedent’s subsequent inability to generate income, any medical expenses incurred by the decedent, and funeral expenses.

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Several states still recognize various types of immunities. That immunity may come in the form of sovereign immunity, charitable immunity, or family immunity. Sovereign immunity is based upon the concept that the king cannot be sued. In the United States that means the sovereign or the government cannot be sued. Many jurisdictions have waived that immunity either in whole or in part. If the local or state governmental entity that you are planning on suing is deemed by state law to be immune from tort claims, then you may not be able to sue that entity at all unless it expressly chooses to waive its immunity. Many governmental entities by means of state law have expressly waived their immunity either entirely or have allowed claims to be asserted against them up to certain dollar amounts. (This varies from state to state.)

Charitable immunity is a doctrine that applies in many states to organizations that are truly charitable. A charitable organization is generally considered to be one that fulfills a strictly charitable function and does not make any attempt to collect its debts. Charitable organizations may be immune from tort claims. For instance, if you were injured on the premises of the Red Cross because of some negligence on their part, depending on the law in that particular state, the Red Cross may have the defense of charitable immunity to your claim because they truly are a charitable organization.

There are certain states that still recognize elements of family immunity. That is, tort claims may not be asserted against parents or siblings for certain types of behavior.

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There are several affirmative defenses that may be raised in regard to a tort claim. An affirmative defense is a defense that may be raised by a defendant that constitutes a complete bar to a claim. One of those affirmative defenses is that of the statute of limitations. Every state has set forth a statute of limitations for virtually every type of civil claim, whether it be a tort claim, contract claim, or otherwise. If the claim is not asserted within the time allowed by that statute, then the claim is deemed to be barred. The assertion of a claim is accomplished in most states by actually filing a lawsuit at the courthouse. Some states require actual service of the suit papers upon the defendant before the statute of limitations runs.

Another defense that may be asserted in a tort case is that of assumption of the risk. Assumption of the risk arises when the plaintiff understands the nature of the risk involved and voluntarily assumes that risk.

Example: If you decide to go out to the supermarket during the middle of a very bad ice storm, recognizing that the roads and walkways are not navigable, and while walking from your car to the store, you slip and fall, then you probably have assumed the risk of an injury. You knew that there was a risk associated with going out during those weather conditions and you voluntarily chose to accept that risk.

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Different states have different ways of how they deal with negligence claims. Some of them acknowledge the concept of comparative negligence, while other states are known as contributory negligence jurisdictions. In a comparative negligence jurisdiction, the negligence may be compared between the parties. For instance, going back to the red light example, if you happened to be intoxicated and laying in the middle of the intersection when you were struck, then there obviously would be some negligence on your part. The jury would be called upon to compare the different levels of negligence.

In that example, the jury might conclude that the driver was 50% negligent and you were also 50% negligent. If the jury then determined that your total damages were $100,000, you would only receive $50,000, because you were 50% negligent.

In a contributory negligence jurisdiction there is no comparison of negligence. This means that if you were negligent by 1%, and that negligence was a cause of your damage, then your claim is barred and you receive nothing. Contributory negligence is a principle derived from the common law that is still recognized in some states. It is indeed a very harsh principle of law and in many instances is unfair to people who are probably entitled to recover something for their damages, but may not be entitled to 100% compensation.

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