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Know Your Facts About Tort Reform

Know Your Facts About Tort Reform

What is Tort Reform?

Tort reform refers to the proposed changes made in the civil justice system that directly reduces tort litigation or damages. The tort system was created to outline compensation methods and amounts for wrongs and harms committed by one party to another person’s property or protected interests. In addition to tangible damages such as property and physical harm to a party, the tort system also includes damages inflicted on an individual’s reputation (under libel reform and slander laws). 
Tort reform, in the United States is a heated political issue as a result of the avocation of procedural limits on the ability to file claims and placing a ceiling on the awards of damages. In contrast, in Commonwealth countries,  any party who initiates liability lawsuits must pay court fees as well as a variety of legal expenses should they lose their claim. This procedural mandate effectively reduces the number of tort cases. Furthermore, there are numerous proposals to replace the system of tort compensation with a social security framework to serve victims without respect to causation. 
The fundamentals of the tort system requires that those responsible (meaning those at fault) for causing harm to other parties must compensate the victims with a financial package. In a general sense, typical harms include any action that precipitates a loss of income (medical costs associated with treatment and lost wages while the victimized party recovers payment for pains accrued by the victimized party and any future payments that are threatened by the aggressor’s actions). 
The primary purpose of tort law is to award a full compensation for the actions that are proven and the harm that is affirmed through the aggressor’s actions. Tort law, in essence, aims to offer the damaged party a chance to restore their financial state back to its point of origin; in other words, the point of tort law is to place a financial obligation on an individual who causes harm to another party. 
In a general sense, tort reform advocates believe that an excess of the 15+ million lawsuits filed annually in the United States of America are “frivolous” and superfluous. This notion places blame on the foundation of the court system in America and the ability for any citizen to file a personal injury or tort claim in the hopes of seeking a monetary award. The problem, however, with tort reform lies within the true purpose of tort law; tort law serves to compensate victims for their losses and secondly the threat of liability or court action serves to deter future incidents of harm from occurring. 
The term “frivolous lawsuits” includes not only the over-saturation of filed claims, but also those suits that are used without merit or claims that seek high damage awards relative to the actual damages absorbed. 

Tort Reform: The Corporate Agenda

Tort Reform: The Corporate Agenda

Tort Reform: The Corporate Agenda
In 2003, the state of Texas capped settlements in tort claims to $250,000 for non-economic damages in medical malpractice suits. This limit was ushered in on a wave of tort-reform advocacy by independent and medical groups, as well as Governor Rick Perry. Proponents of the cap claimed increasing medical costs were related to frivolous malpractice suits.
The majority of Texans were convinced that pain and suffering–that was not accounted on a hospital bill–was exaggerated in trials and that juries were easily manipulated into awarding large sums to harmed individuals. Governor Perry championed the bill by equating a yes vote to a “vote for doctors and for affordable health care.” However, earlier this month, non-profit consumer groups found that health care spending did not drop in Texas since the institution of the cap—it has actually risen.
Premiums for private insurance in the state have risen faster than the national average. The number of uninsured Texans has also risen, while the number of care physicians per capita has plateaued.

Federal Tort Claims Act

Federal Tort Claims Act




What is the Federal Tort Claims Act?
The Federal Tort Claims Act (FTCA) is a limited waiver of “sovereign immunity” that allows individuals to sue the federal government for actions committed by individuals acting on behalf of the federal government.  This legislation was enacted in the aftermath of a B-25 bomber crash into the Empire State Building in 1945 that killed eleven people.  That crash was not the inspiration for this bill but families of the victims from that accident could sue retroactively under that law.

What is sovereign immunity?
In the United States, both the Federal Government and State governments have sovereign immunity.  Sovereign immunity exempts these governments from lawsuits unless they waive sovereign immunity and agree to be sued.  The Tucker Act also provides for individuals to sue the government for breach of contract.  The right of state sovereign immunity was first described in the Eleventh Amendment and further clarified in the case of Hans v. Louisiana.  The federal government may not abrogate the sovereign immunity of the states.  Tribal governments also enjoy sovereign immunity, but the federal government may abrogate that immunity as they see fit.


What are limits on the Federal Tort Claims Act?


Feres Doctrine
As members of the armed forces are government employees, they could have been potentially able to file suit against the government for negligent behavior that caused harm while these members were on active duty.  This right is limited by the Feres Doctrine, established in the case of Feres v United States, where a soldier that perished in a barracks fire.  The case against the government was dismissed after being heard by the Supreme.  Similarly, medical malpractice cases brought against the government by military members are also subject to the Feres doctrine, much to the dismay of military family members.  Courts have found that soldiers do not constitute “private citizens” by nature of their relationship to the government.  The Veteran’s Benefit Act also establishes generous “no fault” compensation to injured service member, without applying negligence to the government.  By this alone, the government is allowed to prevent suits from being brought against it.  These two factors, the federal nature of the relationship between the service member and the government as well as an alternative compensation scheme preclude just about every suit that could be brought by a member of the military against the government.
The Feres Doctrine also coverers military victims of atomic tests as well as their spouses and children born to them with birth defects.  Like other veterans, they are compensated by a veterans benefits and their relation with the federal government precludes them from filing suit.  However, if the government fails to monitor the effect of radiation on the health of the veteran as he ages, then that is failing to uphold federal policy and the duty of care promised to the veteran.  This breach is subject to suits against the government.

Discretionary Function Exception
A claim cannot be made on the failure of the government to perform a discretionary function.  This exception was used to prevent claims from being made against the Federal Aviation Administration by survivors of a plane crash that claimed that the FAA has not performed adequate maintenance on the aircraft that could have prevented the accident.  The federal government and a private employer are held to different standards in this exception.
A discretionary function includes conduct that involves “an element of judgment or choice” and therefore, employees and representative of the federal government that are following federal statutes and laws cannot be liable as they had no choice but to follow established courses of action, without regards to that individual’s opinion or motives.  The element of judgment is critical to avoiding a discretionary function exception.  Even after the element of judgment is proven, there are considerations for if the individual acted with regard to an official government economic or political policy.  The government can only be found liable for negligence in a duty that would have been done by a private citizen such as essential maintenance or hazard clearing.

Miscellaneous
No federal agency can settle for more than $25,000 without the written approval of the Attorney General with an upper limit to $1 million that can be recouped in damages.  Settlements of less than $2,500 are paid out of appropriations while settlements exceeding $2,500 is paid from general revenues.  Attorney fees can only be paid if the court finds the United States to have acted in “bad faith.”  Attorneys may not charge fees exceeding 25% of an award or settlement made by the Attorney General or 20% of a case settled without the aid of the Attorney General.

Remedies for Tort Liability You Must Know

Remedies for Tort Liability You Must Know

Remedies for tort liability 
In most states, individuals that drive a vehicle are required to have liability insurance. That insurance will cover any claims that result from accidents involving that driver or vehicle. In some states, accidents are automatically considered no fault, so that neither party may be sued. Remedies for tort liability include preventing unnecessary lawsuits.
In extreme cases, in which severe bodily injury or death result from the accident, tort liability is a factor. Remedies for tort liability include an auto insurance policy that adequately covers drivers should they have an accident. For those that have businesses or work at high risk jobs, it is also vital to have adequate insurance which can be used as on of the remedies for tort liability.
The American legal system 
 
Remedies for tort liability include cooperation from both the accused and the victim. Those that find themselves in situations that may cause harm to others, such as Doctors, should be sure that the have adequate liability insurance to protects themselves and their patients.
In addition, those that are injured, or suffer a negative outcome because of the actions of another, should be sure that they do not treat the tort cases as a forum for making money that they do not deserve.

What You Should Know About Damages in Tort Law

What You Should Know About Damages in Tort Law

When suits or legal conflicts over issues of misrepresentation and nondisclosure occur that fall under the auspices of tort law, the forms of compensation and damages to which complainants and plaintiffs are entitled are actually intended to be fairly strict. Tort law has three defining elements: which include the gauging of standard of care (in basic terms, the determination of negligence against responsibility), the basis on deciding non-contractual situations, and the restriction of damages to losses incurred.
In other words, a plaintiff’s quest for compensation is usually limited to recouping what is, in theory, represented as existing losses (though, it should be mentioned, losses can also be speculated, namely in situations where losses can be expected to accrue into the future). This becomes significantly restricted as to the extent one can gain restitution in tort cases of misrepresentation and nondisclosure. However, depending on the extent of the damages extended in one of these particular cases, that extent of compensation could be considerable.
In any legal civil action, of which all tort cases are, full disclosure on those acting on the behalf of the plaintiff and the defendant is policy.  Tort cases are centrally designed toward finding a legal basis of responsibility and consensus of opinion upon which determinations of negligence and responsibility are then based.
Loss, as mentioned, is something that can be quantified based precisely on a preexisting, concrete expenditures, but it is much more common that a determination of damages needs to be ascertained, meaning that loss has to be calculated and thus extrapolated through long term projections.
This is fairly common when determining compensation for medical conditions that have altered a plaintiff’s quality of life, which typically means that loss has to be determined against future variables such as medical expenses and lost income. A major part of the reasoning behind the restrictions on tort law is because it is not generally based upon contractual agreements and on the finding of a uniformity of opinion based upon a burden of proof, but despite this, damages are still handed out in extremely high quantities, especially in situations where jury discretion plays a significant role in the determination of compensation.
This has led to widespread calls for tort reform in many circles, feeling that these exorbitant awards have not only placed a burden on the insurance market, but have also compromised the intentions of tort law’s implicit standards of compensation.

A Quick Explanation of Torts

A Quick Explanation of Torts

When an individual purchases insurance, particularly motor vehicle insurance, he/she can often choose whether to obtain limited tort insurance or full tort insurance. Full tort insurance is more expensive to acquire, however, in the event that torts occur, full tort insurance will allow an individual to recover more damages.
When covered by full tort insurance, an individual can initiate a lawsuit to obtain money for the injuries that he/she has attained and any damage that has occurred to his/her motor vehicle. There are some fundamental differences that exist between full tort and limited tort auto insurance.
As a result, the paperwork that an individual must complete to obtain each of these types of insurance differs. When an individual wishes to change from limited tort insurance to full tort insurance, he/she will likely be required to complete paperwork. However, the exact process will vary from one insurance agency to another.

The Proclamation of Neutrality

The Proclamation of Neutrality

The proclamation of neutrality was a formal announcement which was issued by George Washington on April 22, 1793. The announcement officially declared the United States of America as a neutral party to the conflict between Great Britain and France. In addition to simply stating neutral stance, the announcement placed legal proceedings against any American who providing assistance for the feuding sides.
The Proclamation of Neutrality was seen as a landmark announcement for it officially rendered the United State’s role in a global conflict as neutral. To this day, similar announcements are made which state that a land or country is not involved in a particular conflict and they will not be held liable for any consequences that arise from the feud.
In addition the neutral stance places a responsibility on the individual within the country declaring the proclamation of neutrality that if they show a bias or participate in the feud they will be convicted and held accountable for their actions.

Negligence Tort at a Glance

Negligence Tort at a Glance

Negligent torts are the most prevalent type of tort. Negligent torts are not deliberate actions, but instead present when an individual or entity fails to act as a reasonable person to someone whom he or she owes a duty to. The negligent action found in this particular tort leads to a personal injury or monetary damages.

The elements which constitute a negligent tort are the following: a person must owe a duty or service to the victim in question; the individual who owes the duty must violate the promise or obligation; an injury then must arise because of that specific violation; and the injury causes must have been reasonably foreseeable as a result of the person’s negligent actions. Contact a negligence lawyer to acquire legal advice and assistance.

To succeed in a negligent action, the party who sustained the injury must prove the aforementioned elements in a negligent tort claim or hearing. A negligent tort can be summed up as an individual’s failure to reasonably exercise logical or caring actions. Examples of a negligent tort claim can include: slips or falls, the majority of medical malpractice cases, and car accidents.

 

A Brief Overview of Tort Law

A Brief Overview of Tort Law

Introduction To Tort

A tort is a civil breach committed against another in which the injured party can sue for damages. In personal injury cases, the injured party will attempt to receive compensation with the representation of a personal injury lawyer in order to recover from damages incurred. Tort law decides whether a person should be held legally responsible for injury against another, and what type of compensation the injured party is entitled to.

There are four elements to tort law: duty, breach of duty, causation, and injury. In order to claim damages, there must be a breach in the duty of the defendant towards the plaintiff, which results in an injury. The three main types of torts are negligence, strict liability (product liability), and intentional torts.

Intentional Interference with a Person

All tortious charges of intentional interference with person/property involve intent, which provides for a civil wrong, knowingly committed by the offender.  This contrasts with torts of negligence, which results from a lack of concern or responsibility on behalf of the offender. These damages are dealt with through civil litigation.

Defenses to Intentional Interference with Persons

When a plaintiff accuses a defendant of an intentional tort, it is the defendant’s responsibility to identify any justifications for his actions that may excuse him from liability. In tort law, there are several privileges that a defendant may apprehend, in order to avoid liability.

It is up to the courts to determine whether the defendant’s privilege excuses him from liability. They need to conclude on whether the defendant had consent, permission by the plaintiff, or whether the plaintiff was defending himself, his property, or another person. If the defendant is able to establish privilege, then it is said that he has not committed a tortious act and will not be held liable.

Negligence: Standard of Conduct

There are certain elements that are required to prove that a defendant acted negligently. There is a specific code of conduct that all people are expected to follow and there is a duty of the public to act in a certain way, which reduces the risk of harm to others.

Negligence can only be claimed by an injured plaintiff, whose interests have actually been interfered with. This portrays that a plaintiff must prove his injuries, and prove that they were caused by the defendant. This proximate cause is the link between the defendant’s actions and the plaintiff’s injuries.

There is a statute of limitations in negligence cases, however, there are several rules, such as discovery and continuing negligence, which may excuse a plaintiff from the statute of limitations.

Negligence Proof

The necessity for a negligence case to be tried in a court of law is essential and evident. Tort law, like any other law, is tough to decide upon when an enforcement or violation issue arises and is furthermore tedious.

In negligence cases, a court appoints a jury to make a decision upon a case based on the direct or circumstantial evidence that is available to them.

The burden of proof a plaintiff faces in a case relates to four elements of proof that must exist in order for them to be able to prove that a negligent act not only existed but the fact that the act by a defendant, led to the injury sustained by the plaintiff.

Proximate Cause

The name given to the direct cause of an accident, or incident leading to injury, is referred to as ‘proximate’. The term proximate has long been known to mean near or in the vicinity of, not actual. This gives a misconception to the name as if the cause was nearly opposed to the actual one.

Other issues arise deeper within proximate cause, and that is with the scope of liability and its extent. Controversy exists as to where liability should be extended to a defendant, based on their responsibility or duty.

Joint Tortfeasors

Joint tortfeasors, seen as equally liable for the committing of a tort, usually can be combined under one complaint. This is known as a “joinder of defendants”. In a case similar to this, one significant reasoning behind its institution besides the commonality that the defendants share in their joint action is that of the “judicial economy.”

In reference to this term, the court is making the decision that placing all defendants under one sole complaint will be the most appropriate option in terms of efficiency and, ultimately, cost-effectiveness for the judicial system itself.

Due to the mounting quantities of cases arising daily, this practice is employed as a worthwhile alternative, especially when an occasion such as that of joint tortfeasors comes about.

Limited Duty

In legal terms, duty is seen as an individual’s obligation to act in a manner conducive to the well being of everyone around them, such as the prevention of any “foreseeable injury to a victim.” Such a term that best represents this obligation is that of a “duty of care”, or even “good Samaritan” to an extent.

Duty, itself, serves two other important functions for societal concerns attached to tort law. These include a “general principle” and a “limitation.” A general principle provides precedence for future cases, while limitation sets forth the “boundaries” for which liability may exist for individuals involved in an incident. The actual application of this term comes in the form of its existence at the “abstract level” and “in fact or problem”.

Owners & Occupiers

The concerns for areas outside of the premises of a given property deal with the condition of such property. This is in direct regard to certain factors and attributes such as structural or fixtures on the property that could have an effect on the immediate areas surrounding it.

The term trespassing adults refers to any person who has been found to be entering, occupying, or traveling through a property that is owned by someone else, without their permission or consent. Licensees are persons that are given a license, as a form of permission, to enter a property lawfully.

Such persons are to enter the property for a reason that does not have to be in the best interest or benefit of the owner. By being granted the license to enter and occupy such property, this individual is exempt from trespassing status and is completely abiding by the law.

Negligence- Defenses

Contributory negligence is one of the most commonly used negligence defenses. The defendant attempts to deny the plaintiff the right to action, by claiming that the plaintiff’s own negligence played a large role in his injuries. In contributory negligence, both parties are guilty of negligence, but the plaintiff is not awarded any damages.

The last clear chance rule is an exception to the contributory negligence defense which permits the plaintiff more freedom in taking action against a defendant when the plaintiff is also guilty of negligence. The last clear chance refers to an instance where the defendant had the last clear chance to avoid injuring the plaintiff but did not take the opportunity. In cases where both the plaintiff and the defendant are both guilty of some degree of negligence, contributory negligence places liability solely on the plaintiff.

Imputed Negligence

Vicarious liability represents a venue in which individuals may be “vicariously” held accountable for the actions of individuals other than themselves. In these cases, the ones held liable are those who have some type of legal claim to the actual individuals at fault. Two such persons may be parents to mischievous children or employers to careless employees, as well as a guardian.

In each circumstance, the liable individuals are taking the place of others. A joint enterprise is described as an action, which involves two or more individuals, usually with monetary considerations involved. Additional elements that comprise it include a common goal as well as concurrent rights to take the lead of the operation.

Strict Liability

The basic structure that encompasses that of strict liability is the fact that liability is maintained despite any intent otherwise. In this way, it matters only that the action was performed to its fruition and an eventual injury of another. Certain areas in which safety laws have had to come to the forefront concerning liability include incidents involving product defects.

In cases such as these, consumers must only prove that their injuries stemmed directly from the product in question in order to garner an appropriate judgment from the court. The purpose behind such a seemingly rigid form of the legislature is to prevent future occurrences from happening by providing precedence to fall in line with.

Compensation Systems

In tort cases, victims often receive compensation, including monetary judgments. However, some judgments include other factors such as the accused, publicly admitting guilt. In most jurisdictions, the courts have placed limits, or judgment ranges, which depend on specific factors found in the case.

In most cases, victims that sustain injuries receive a judgment that maxes out, regardless of how painful and permanent the injury may be. However, the courts can award other judgments, in addition to the one made for specific bodily injury.

Nuisance

In modern tort law, there are different types of nuisances: public, private, and absolute. A private nuisance affects one individual’s enjoyment of his land, while a public nuisance affects a larger amount of citizens or the public in general.

Absolute nuisances are nuisances for which the defendant is strictly liable. The simple form of nuisance is described as an act that takes away from rights to the use, and enjoyment of land that every owner has.

Products Liability

Products Liability is a field of tort law which concerns the responsibility of the manufacturer or vendor of a product to ensure that products are safe and do not cause injury. Products subjected to liability include all consumer goods, medical devices, commercial/personal vehicles, aircraft, and consumable goods such as food and prescription drugs.

As it is the duty of a product vendor or manufacturer to produce/supply a product which will not cause harm during normal use, manufacturer/vendors of unsafe products are subject to recovery for damages.

Misrepresentation & Nondisclosure

Misrepresentation and nondisclosure form two fundamental bases for many actions represented under tort law. Any case where false or hidden information plays a significant part essentially implies a standard of care that reflects the negligence addressed by tort.

To phrase it more simply, the fact that information has been withheld or misrepresented directly implies a negligent situation. This means that among the various subsections of tort law, cases of misrepresentation and nondisclosure can prove to be the easiest to form a legal consensus of opinion on whether negligence has happened, due to the very idea that the act itself is a negligent action.

Misrepresentation and nondisclosure can take many forms, but generally, they refer to an act or service. they are usually rendered for compensation that does not fulfill their terms of promise, either because they misrepresent their ability to perform or fail to disclose elements that prevent adequate performance (like an unknown side effect for a product, or a conflict of interest in a case of service).

There are many remedies one may seek when a case of misrepresentation can be seen to have occurred, though the extent to which they fall under tort law or other forms of legal action is highly dependent on the specific legal system, as well as the nature of the misrepresentation.  In nearly all cases, there is an obligation on the provider of a product or service to provide information either by law or by request, so as to adhere to all legal standards of accurate representation.

Defamation

The term defamation refers to an abusive attack on a person’s character or to make false claims against someone in order to damage their good name. There are two forms of defamation that can be used: libel and slander. An unreasonable person may abuse the right of privilege in order to commit defamation against another person.

The right of privilege (or “qualified privilege”)  being that a person has a right to make statements during the trial process. This privilege often protects against an unreasonable person who wishes to make defamation statements.

Misuse of Legal Procedure

Misuse of Legal Procedure is a series of torts that involve the corrupt or undue filing of litigation for unlawful reasons. Public right of access to courts is granted on good faith that claimants will act with probable cause and honesty.

Conversely, when a plaintiff in a lawsuit is found to have initiated legal action for purposes of deliberate harassment or inconvenience of the defendant, or when the court terminates the suit in favor of the defense, the defense may seek damage compensation for losses incurred in the legal process. These losses may be qualified under charges of Malicious Prosecution, Wrongful Civil Proceedings, or Abuse of Process.

Domestic Relations

Domestic Relations is an evolving area of Tort Law which deals with a family’s inner workings. The evolution of Domestic Relations Tort has not only shaped the way that families may collect for damages or interference to the family unit itself resulting from tortious conduct; it has shaped the way husbands, wives, children, and legal guardians are viewed as legal entities.

Originally, under common law, children and wives were treated as chattels and functioned under a man’s proprietary rights. In the 1900s, several advances in Family Law provided for the legal rights of women and children to act as distinct legal entities from their husbands/fathers.

Survival & Wrongful Death

Survival and Wrongful Death are tort claims made after the death of an individual in an at-fault situation. This means that the deceased must be a victim of a tort, before death or at the time of death.

Survival actions are raised by the executives of the victim’s estate and are continuations of tort actions that the victim would have been entitled to raise in life. Wrongful death claims are made by surviving dependent’s for the loss of the decedent’s contributions to their lives.

Economic Relations

Torts of Economic Relations are allegations of direct interference with business relationships, agreements, or prospects, which result in quantifiable losses. When suing for Torts of Economic Relations, it is important that the plaintiff be able to prove that the defendant acted intentionally with knowledge of his or her own actions and that the subsequent actions were injurious to the claimant in the form of economic losses. Torts of Economic Relations normally fall under classifications of Interference with Contractual Relations, Interference with Prospective Advantage, or claims of Injurious Falsehood.

Immunities

In tort cases, there are certain intervening factors that allow individuals immunity, from their actions. Immunity implies either, that the person could not understand the risks associated with their actions or that they can not be held liable because they were acting on behalf of the government or other entities. Cases in which individuals are not likely to understand the possible outcomes of their actions include infant immunity or insanity immunity.

Infant immunity applies to minors that are too young to grasp the consequences of their actions. In addition, the minor must not have any intent to cause harm to a person or property. It can not be claimed that the minor did not understand the consequences of their actions if they intended the negative consequences that resulted from their actions.

Intent can not be present without an understanding of possible outcomes. In cases that involve infant immunity, the parents or guardians of the minor could be held liable for their actions, regardless of the minor’s understanding of the possible outcomes of those actions.

Insanity immunity can be utilized as a defense in cases where a person is deemed insane, or mentally incapable of understanding the possible outcomes of an action. In cases where insanity immunity is a factor, the caregiver of the person that acted in a manner that caused a negative outcome could be held liable in the same manner that a parent or guardian could be liable for a minor. In either case, the actor and those responsible for the care of the actor, could both be held liable for the action.

What Can a Tort Lawyer Help You With?

What Can a Tort Lawyer Help You With?

A Tort Lawyer is a legal practitioner who specializes in the practice, litigation, and handling of tort law; a tort, which is defined as a ‘wrong’, is a grievance or injury that is suffered, which can result in injury and/or damage. Amongst the most common issues of tort law are those of personally injury, general injury, and accidents. 

The following terms comprise what is traditionally considered to be handled by a tort lawyer:

Intentional Tort

An intentional tort refers to an action performed by an individual onto another individual – or entity – with the intent to cause purposeful harm or damage; an example of this nature of tort is a physical attack.

Negligent Tort

A negligent tort is defined as unforeseen damage or injury sustained by an individual – or entity – as a result of negligence on the part of an individual or entity; and example of this nature of tort is an injury sustained as a result of a faulty product.

Strict Liability Tort

In tort law, when there is no clear delineation between both the party who is at fault, as well as the party considered to be the victim with regard to harm or injury sustained, a strict liability tort determines the nature of fault; this usually occurs as a result of a court case and subsequent judicial review of circumstantial details.