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

The most common form of tort claim arises from automobile collisions. Those tort claims normally involve some careless or reckless act by one driver resulting in a collision with another motor vehicle. Whether the operation of a motor vehicle involves actual negligence depends upon how the driver’s conduct is viewed in the light of the Rules of the Road as set forth either in your state code or local code governing traffic regulations. The rules of the road or traffic regulations establish the standards for operation of motor vehicles. A violation of these rules or regulations typically constitutes negligence.

Motor vehicle accidents involving common carriers (buses, taxis, trains, and planes) may have a set of rules that are slightly different than what would apply to an automobile. Common carriers are frequently held to a very high degree of care. As such, if there is even slight negligence on their part that contributes to the injury of one of their passengers, then the common carrier may be liable.
 

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There are several different types of torts. The most common tort that you may have some contact with is that of negligence. Negligence is a failure to exercise ordinary care.

The concept of negligence is founded upon the idea that a duty is owed from one person to another and there has been a breach of that duty, which then causes an injury or damage to another party. For instance, in the red light example, the duty owed was the duty of not running a red light. If that duty is violated by running the red light and as a result of that you are injured, then all of the elements of a negligence claim have been met.

There are four essential elements to any tort claim.

1. There must be a duty that is owed by the defendant (the party against whom the claim is made) to the plaintiff (the party bringing the claim).

2. There must be a breach or violation of that duty by the defendant.

3. That breach of duty must have then been a proximate cause of injury to the plaintiff.

4. There must be actual injury or damage to the plaintiff.

The first two elements of any tort claim—duty and breach of duty—have just been discussed. The third element of any tort claim is that of proximate cause. Proximate is not to be confused with the term approximate. Proximate literally means “immediate to, contiguous, touching, or direct.” Approximate means not proximate. A proximate cause of an event is one that is reasonably foreseeable. If a person runs a red light, then it is reasonably foreseeable that he or she may injure someone. As such, that negligence may be a proximate cause of injury.

Example: Suppose Alan is playing a game of catch with his son in front of his house. His wind-up is a bit too aggressive and he overthrows the ball. The ball goes through the front window of your home and then through the rear window of your home striking a barbecue stove that is on your back porch. The stove then falls off the back porch, rolls down the hill, and kills another neighbor. What is Alan responsible for?

The first question is whether Alan was negligent. Alan probably was negligent for throwing the ball so hard that it broke the front window of your home. The next question is whether that negligence was a proximate cause of injury to your home. Clearly it was.

The final question is whether or not that negligence was a proximate cause of injury to your neighbor. That is a tougher question. It comes down to essentially an issue of whether it was reasonably foreseeable that by throwing the ball as hard as he did, it would not only go through your front window, but also the back window, and then strike your barbecue oven, knock it off the back porch, cause it to roll down the hill, and strike your neighbor. That type of resulting injury is probably not reasonably foreseeable, and as such, the chain of causation would have been broken at some point in that sequence of events. Typically, in that type of case, the question of proximate cause would be submitted to a jury for resolution as to whether or not Alan’s negligence was a proximate cause of injury to your neighbor.

The fourth and final element of any tort claim is that of damages or injuries incurred. To justify a recovery of any substantial amount, the injuries or damages must be more than minimal. Those injuries may include medical expenses, lost wages, pain and suffering, humiliation, etc.
 

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A tort is a civil wrong that is not based upon a contract. If, for example, a person runs a red light and strikes your vehicle (which is lawfully in the intersection), then you could sue that person civilly for the tort of having run the red light. That tort action does not arise out of any contract between you and the other person.
 

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In reviewing a written contract, there are several things that you need to be on the lookout for.

* The identity of the parties. Each of the parties needs to be expressly identified. If you are dealing with a corporate entity, you need to make sure the complete name of that corporation is stated in the contract. The only way to confirm that you have the complete name of that corporation is to call the state agency that supervises corporations to get the complete name. In addition, the contract should expressly identify the position of the person signing on behalf of the corporation, so that it is clear that he or she is a corporate officer and therefore has the authority to sign.

* Consideration. The consideration must be expressly stated in the document.

* Governing law. It is a good idea to state in the contract what state law is going to control this contract in the event there is a dispute that arises. This is important if you are entering into a contract with a person or entity that is not based in the same state where you are.

* Time of the essence. A time of the essence clause is significant if you are interested in prompt performance by the other party. If prompt performance is not a big deal to you, then you may not want a time of the essence clause. If there is a time of the essence clause in the contract and either party does not comply with the time requirements set forth in the contract, then that is considered to be a material breach of the contract.

* Survival. The term survival means that if one party to the contract were to pass away before there has been complete performance, then the obligation set forth in the contract would apply to the estate and heirs of that person.

* Modification. It is a good idea to expressly state in the contract that any modification of the contract must be in writing and must be signed by both parties. That eliminates any possibility of there being any oral modification which may be the subject of a later dispute.

* Waiver. A waiver is an intentional relinquishment of a known right. It is generally a good idea to have a waiver clause in the contract that says that the failure of either party to insist upon strict performance of any of the provisions of this agreement shall not be interpreted as a waiver of any other default or breach of the same or similar nature. This will help prevent a situation in which a waiver of strict performance of a contract provision on one occasion will constitute a waiver of future breaches by that other party.

* Severability. This term means that if any provision within the agreement is found to be invalid or unenforceable, it will not effect the enforceability or validity of the other provisions in the agreement. Suppose for instance that a particular paragraph in your contract was determined to be either unenforceable or illegal by a court, that conceivably could invalidate your entire contract unless you have this clause within the contract.

* Assignability. The general rule is that any contract may be assigned unless the contract expressly says otherwise. Assignment of a contract essentially means that you are selling your rights under the contract to another party. For instance, if the contract that you are entering into is a contract for the purchase of an automobile, then you may sign a written contract agreeing to buy that automobile for a certain price. You may then assign it (sell it) to another party unless the contract says that assignment is not allowed. What you are selling in this instance is the contract, not the car. You need to decide whether or not you want a nonassignment clause within your contract.

* Integration. An integration clause in a contract says that this contract contains the entire understanding of the parties and that the parties expressly agree that there are no oral or written representations, warranties, or agreements relied upon other than what is expressly said within the written agreement. You may recall the discussion about the parol evidence rule (p.108) that bars the admissibility of any precontract discussions that may have taken place between the parties before the contract is actually signed. An integration clause reconfirms that and goes a little bit further to confirm also that any postcontract discussions (discussions or communications that took place after the contract was signed) are not to be relied on by the parties. The word integration in this context means that the entire understanding of the parties is integrated into the one document.
 

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Claims for breach of contract, aside from involving claims for money damages, may also involve claims for equitable relief. Equitable relief consists of requests by one party to enjoin or dictate either the performance or nonperformance of certain things.

Example: Suppose Bob enters into a contract with his neighbor to allow a sewer line to be placed across his property so that his neighbor can hook up to the sewer line. However, when the sewer company comes to install the line, Bob decides to stand at the boundary with a shotgun to prevent the excavation. In that instance, Bob may be enjoined from that conduct. The court may order Bob to step aside and allow the excavation to be completed pursuant to the agreement.

The court in that case would issue an injunction requiring Bob to cease and desist any behavior that obstructs the excavation. In addition, the neighbor could also sue Bob for money damages since Bob caused the neighbor to have to hire an attorney to file a suit for the injunction. In that circumstance, the attorney’s fees might be recoverable.
 

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Another form of damage that may be recoverable as part of a breach of a contract claim is what is known as liquidated damages. Liquidated damages are expressly set forth in the contract in the event there is a breach. For instance, in many construction contracts it is expressly agreed by the parties that if the contractor does not complete the job by a certain date, he or she will have to pay damages of a fixed amount per day. Liquidated damages are frequently called for in contracts because it may be difficult for the parties to determine what the actual monetary damages are in the event of a breach or, in this case, a delay in performance.
 

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The damages that may be provided in a contract action generally fall into two categories—direct damages and indirect damages. Direct damages are those that are actually spelled out in the contract. In the painting example, the $100 that was to be paid would be the direct damages. Suppose Joe told you when he agreed to paint your house that he needed to be paid by a certain date otherwise his landlord was going to evict him from his business location, putting him out of business. If that had been disclosed initially and it was within the contemplation of the parties that Joe would suffer significant consequences if payment was not made in a timely fashion, then those consequential damages—the damages flowing from the failure to pay—may likewise be recoverable in a contract claim as indirect damages.

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As mentioned, the typical contract involves an offer being made, the offer then being accepted by another party, and the exchange of some consideration. There are, however, other theories or means by which a contract may come into existence.

Sometimes a person who is not technically a party to a contract may have rights under the contract if he or she is a third-party beneficiary. In order for that beneficiary to enforce the contract with the other parties to the transaction, that beneficiary typically must have been intended by the other parties to benefit from the contract. A typical third party beneficiary arrangement would be a party who was injured by another person and who then sues that responsible party and makes a claim against their liability insurance policy. The injured person is an intended beneficiary of that responsible party’s policy and may sue to enforce payment under the policy.

In some instances, a quasi-contract may be recognized. A quasicontract is a contract implied even though there is no express promise to do anything. In order for a quasi-contract to be recognized, there must have been some benefit conveyed by one party to another. The purpose of recognizing quasi-contracts is to prevent the party receiving the benefit from being unjustly enriched.

In addition, the concept known as promissory estoppel may be recognized to enforce certain obligations. If certain promises are made and the other person reasonably relies on them and suffers some loss as a result, then under certain circumstances, that person may sue to enforce the promise made, even if no actual contract was formed.
 

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In determining whether one party has failed to comply with the terms of the contract to the point in which damages should be awarded, the court will ask whether the breach of the contract is material. A material breach of contract is one that goes to the very heart of the agreement. In the house painting example, the failure to pay the one hundred dollars obviously goes to the very heart of the agreement and that failure to pay clearly would be a material breach of contract. If, on the other hand, the painter was one day late in completing the job then, typically, that one day delay would not be a material breach of contract unless the contract contained a time is of the essence clause. If such a clause was in the contract, then that means that the parties have expressly agreed that every minute counts. If the party that is required to perform does not perform on time, then that will be considered a material breach that may bar any right to payment that the parties may have.

A material breach of contract goes to the very heart of the agreement.

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Contracts are the foundation of our commercial system. A contract is an agreement. If the agreement is violated then the person who is in violation is liable for the damages called for under the contract. If Joe agrees to paint your house for a hundred dollars by a certain date, and after completing the job satisfactorily you refuse to pay Joe, then you are in breach of the contract and he can sue you for one hundred dollars. If Joe has to hire an attorney to file that lawsuit, then he may be able to recover his attorney’s fees provided that the contract allows for that.

The general rule of law in the United States is that each party has to pay its own attorney fees regardless of who prevails. There has been a movement over the last several years to require that in civil litigation the losing party pay the attorney’s fees of the winning party. This is the law in some countries. But the United States has never adopted that rule because it has been felt that such a rule would deter worthy litigants from bringing claims that are justifiable if they thought that there was any chance of their losing and thereby having to pay the attorney’s fees of the opposing party.

Referring back to the house painting example, if Joe knew that you were going to hire the most expensive lawyer in town and knew that those attorney fees could be thousands of dollars, that certainly would be a significant deterrent for him to file suit. If he lost, he would have to pay more than what his own claim was for. In the American system of justice, a party should not be deterred from bringing a suit for fear that he or she may have to pay the legal fees of the other side if he or she loses.

The philosophy within the American judicial system is that the courts are accessible to any party who feels as though he or she has been wronged by some other person. In earlier times, when one person wronged another there might be a duel in the street to resolve that dispute. Our civilization has evolved to the point  where we wish to deter those types of confrontations and encourage parties to resolve their disputes in a civil fashion in front of a judge or jury instead. As such, the American Rule does not allow for the recovery of attorney’s fee unless stipulated in a written agreement. This is generally considered to be the more democratic rule in that the threat of attorney’s fees being awarded should not be a deterrent to a potentially worthy litigant bringing a law suit.
 

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Once a contract has been entered into, the parties are obviously interested in the performance of the contract. It is not unusual, however, that there are certain conditions imposed on one or both parties before performance is necessary. For example, in your typical homeowners insurance contract, a condition that you must satisfy before your insurance company is obliged to make any payments to you is to provide a sworn proof of loss statement itemizing the damage that you are claiming. The insurance company also has the right to examine you under oath as to that claim. Once those conditions have been satisfied, the insurance company has an obligation to pay you for the damages incurred that are covered by your policy.

Sometimes those conditions within the contract may be the subject of what is referred to as waiver or estoppel. A condition may be waived if the insurance company informs you that you do not have to comply with that condition. A waiver is a relinquishment of a known right. If the insurance company has a right to require that you file a written proof of loss and they expressly waive that or tell you that you do not have to file a written proof of loss, then that constitutes a waiver of that condition.

In some instances, a party may be estopped from requesting that the conditions be satisfied. For instance, again referring to the insurance claim, if the insurance adjuster handling the matter told you that he would complete the proof of loss form and then submit it to you for your signature within the time allowed by the contract and you relied upon that representation, then the insurance carrier may be estopped from denying coverage to you for failing to have filed the proof of loss form within the time allowed.

An estoppel arises when a party makes a representation and the other party relies upon that representation to his or her detriment. In the example, the insurance adjuster represented that he would complete the proof of loss form. You relied upon that, and as a result of that adjuster’s failure to do what he said he would do, your proof of loss form was not submitted in a timely fashion. In that circumstance, the insurance company would be estopped from denying your claim for failing to comply with the condition.
 

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Terms within the contract that are not expressly defined are typically given their dictionary definition by any court that may be called upon to interpret the contract. A rule of evidence that is important in regard to contract interpretation is the parol evidence rule. It declares that statements made by the parties prior to the signing of the contract will not be considered by a court in a contract dispute. The rule is well recognized and may be further strengthened by language within the contract itself that expressly says that the parties are only bound by the terms of the contract as set forth in the four corners of the document. The logic behind the parol evidence rule is that parties should not rely on precontract statements to define the intent of their agreement when, in fact, they have gone to the pains of putting their agreement in writing with the understanding that the writing constitutes the entire agreement.

The parol evidence rule may seem to be somewhat inconsistent with the example of how a party was fraudulently induced to enter into a contract for the sale of a home. The parol evidence rule, however, should not be confused with that instance of fraud. Fraudulent statements that are made to induce a party to enter into a contract are not deemed to be governed by the parol evidence rule. Fraudulent statements may be a basis for setting aside the contract because those fraudulent statements undermine the integrity and fairness of the agreement.

The meaning of a contract may also be garnered from looking at the prior course of dealing between the parties to this contract. That is, their prior course of dealing may give some clue as to what they intended the contract to mean.
 

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There are several other defenses that can conceivably be asserted to a claim to enforce a contract. For instance, if one of the parties was a minor or suffering from mental incompetency at the time, then those facts may be defenses to the validity of the contract. This defense is called lack of capacity to contract. Likewise, if there was a mutual mistake by the parties, then that could void a contract on the theory that there has been no meeting of the minds and therefore no agreement.

Example: A mutual mistake might arise in a circumstance in which the seller offers to sell his 1964 Cadillac that is parked in front of his home and the purchaser agrees to buy the 1964 Cadillac parked in front of the home. However, it turns out that there were in fact two 1964 Cadillacs parked in front of this home and the parties were referring to different vehicles when they entered into what they thought was their agreement. In that type of circumstance, there has been no meeting of the minds because the parties were mutually mistaken as to which vehicle was being sold.

It is not unheard of that in the course of defending a contract claim, the defendant may claim that he or she was induced to enter into the contract due to fraud on the part of the other party. Fraud can be loosely defined as a misrepresentation of a material fact.

Example: You want to buy a house. You ask the sellers whether they have ever had a wet basement. The sellers tell you that they have never had a wet basement even though they know full well that it is untrue. That misrepresentation may constitute fraud.

If you then proceed to buy the house, based upon the false representation and find out after the sale that in fact the basement does leak, then you may sue the sellers for the fraud. To make your claim, you must have been induced to enter into the contract and to have suffered certain damages. In this case, you bought a house that was faulty and therefore, worth less than what you paid.

Other conceivable defenses to a contract claim could come in the formof duress, undue influence, impossibility, and frustration. Duress is simply a threat or perceived threat to induce a party to enter into a contract. If someone puts a gun to your head and makes you sign a contract, that contract is not enforceable because you were operating under duress. Duress may also come in a number of other forms that may be considerably more subtle.

Undue influence arises when certain persons may have a great deal of control over a party and utilize that control in order to unduly influence a person to enter into a contract.

Example: Betty holds a power of attorney for her next door neighbor who is 94. The power of attorney authorizes Betty to conduct all of the financial affairs for her neighbor. If Betty encourages her next door neighbor to sign a contract selling his home for $100,000 under market value, that would be an example of undue influence. It would be a basis for setting aside that contract of sale.

Impossibility arises where it truly becomes impossible to perform a contract due to something that is unforeseen by the parties. For instance, the destruction of the World Trade Center made the performance of the leases for that building impossible. A related concept is that of frustration of purpose. For instance, during the inauguration of a new president, there may be certain contracts entered into. If the inauguration, however, is canceled, then the purpose of those contracts has been frustrated. If you were one of the suppliers who agreed to provide the grandstands for the inauguration, the U. S. Government may be able to void the contract with you since the inauguration is not going forward.

Most contracts can and should be brief and straightforward.

If you have ever read a multi-page contract drafted by an attorney, you probably found it to be a nightmarish experience. Although complicated business transactions call for contracts that are precise and complex, most contracts can and should be brief and straightforward. To the extent that there is any ambiguity in a contract, typically that ambiguity is interpreted against the party that drafted the contract.
 

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Contracts may either be in writing or oral. Whether the contract is oral or in writing, it is equally valid, although there may be problems enforcing certain types of contracts that are not in writing. Most states have adopted, in some form or another, a law know as the Statute of Frauds. The Statute of Frauds is a law that is designed to minimize the possibility of fraudulent behavior in certain types of transactions. For instance, a person buying or selling land cannot enforce a contract of sale for land unless that contract is in writing. The logic behind that requirement is that over the years, there has been so much litigation relating to oral contracts for the sale of land and allegations of fraudulent behavior that those types of contracts must be in writing and be signed by the person against whom the agreement is being enforced. That type of requirement is designed to minimize the likelihood of there being any fraud perpetrated against the buyer. If the seller signs the agreement and agrees to sell the land for a certain price and all of that is confirmed in writing, then the chance of that transaction being fraudulent is considerably reduced.

The Statute of Frauds is designed to minimize the possibility of fraudulent behavior.

Other types of transactions that typically need to be in writing to be enforcable are transactions that involve pledging the credit of another for a transaction, agreements to marry, agreements to pay real estate brokerage commissions, agreements that cannot be performed within one year, and agreements to lend money or extend credit for a significant amount, such as $25,000 or more. All of those types of transactions are ones that over the years have been found to be the subject of frequent litigation with allegations being made of fraud. Because of that, many states have found it best to require those types of transactions be put in writing and signed by the party against whom enforcement of the contract is being sought.
 

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