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

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 consequences in any event.
 

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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 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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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 (135̊ to 140̊), but at 180̊ to 190̊ was able to cook through all layers of skin within seven seconds. McDonald’s admitted that its coffee was 40̊ to 50̊ 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. 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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Another area of the law that produces many tort claims is premises liability. A person who is lawfully on someone else’s premises and who is injured as a result of some negligence of that property owner may have a claim against the property owner. The duty or standard of care to which the property owner is held may depend on the status of the injured person.

The different statuses that may apply are that of invitee, licensee or trespasser. An invitee is typically someone who comes onto the property for some legitimate business purpose. A licensee may generally be thought of as a social guest. A trespasser is someone who is not allowed on the premises and who is there without the knowledge or consent of the property owner.

Exactly what duty is owed by the property owner to each of these different classes of persons may vary dramatically from state to state. The general rule of law, however, is that a property owner has a duty to exercise ordinary care to keep his or her premises in a reasonably safe condition. When an owner fails to exercise that ordinary care and someone who is lawfully on the premises is injured as a result, the property owner may be liable.

One thing that distinguishes premises liability claims from other types of tort claims is that the party who is injured (the plaintiff) must prove that the property owner had notice of the defective condition on the premises. For instance, if your daughter slips and falls on a banana peel that was on the floor in the school cafeteria, she does not necessarily have a basis for a claim against the school system or the company that runs the cafeteria. She must present some evidence of how long that banana peel had been on the floor in order to prevail on such a claim. If it turns out that the banana peel had only been there a short period of time and was there because of the actions of some other student in the school, the school may not have had a reasonable opportunity to see the banana peel and clean it up. Thus, there may not be any negligence on the part of that school.

A property owner can only exercise ordinary care toward defects or deficiencies that he or she has knowledge of.

The logic of this rule is that a property owner is not necessarily a guarantor of the safety of all persons on his or her premises but is simply required to exercise ordinary care. A property owner can only exercise ordinary care as to those defects or deficiencies that he or she has some knowledge of or that he or she should have known of.

In the case of your daughter, she must prove that the banana peel had been on the floor long enough that the school system or the manager of the cafeteria should have known that the banana peel was on the floor. The school system or cafeteria manager should therefore have cleaned it up or placed signs out to warn customers of the presence of the object on the floor.

If the banana peel was placed on the floor either intentionally or accidently by an employee of the entity that operates the school cafeteria or by an employee of the school system, then your daughter may not have to prove that that entity had notice of the presence of the banana peel on the floor. The negligence of the employee in placing it there would simply be imputed to the employer.

Take another example of a premises liability claim.

Example: Suppose you are the tenant in a large apartment building where there have been a series of crimes committed resulting in serious personal injuries to the occupants. The property owner is aware of those crimes, but takes no steps to warn other tenants of the crime wave in that building and likewise takes no steps to improve security in the building. If you are subsequently assaulted and injured as a result of a person coming onto the premises for the purpose of committing a crime, then you may have a claim against that landlord based upon a negligence theory. That is, the landlord knew or should have known that there was a danger to the tenants, yet the landlord took no steps to either warn the tenants or to decrease the security risk to the tenants.

Look at that claim from the point of view of how the four elements of a tort claim apply. The first element of a tort claim is the establishment of a duty owed by the defendant to the plaintiff. The duty in this case arises out of the relationship of the parties. That is, the property owner or the landlord owes a duty of reasonable care to persons who are lawfully on the premises.

Reasonable care is that degree of care that a prudent person would exercise in a given circumstance.

You may ask, what is reasonable care? Reasonable care is whatever a jury says it is. A textbook definition of reasonable care is that degree of care that a prudent person would exercise in that circumstance. If the landlord in this instance failed to take some steps to warn the tenants or persons lawfully on the premises of the criminal incidents occurring, then that may be evidence of a breach of the duty to exercise reasonable care and fulfill the second element. If the assault in question was perpetrated by some person who was unlawfully on the premises, then the third element of a tort claim has been met in that the breach of duty has been shown to be a cause of injury. The final element of a tort claim is simply that of injury or damage. In this case, the injury or damage consists of the personal injury to the plaintiff.
 

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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 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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