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Understanding an Apportionment of Damages

Understanding an Apportionment of Damages

In distributing the allotment of damages connected to a case involving joint-tortfeasors, it is important to know exactly what constitutes such an important process. 
In attempts to figure out exactly how apportionment should occur, it would be wise to determine exactly what the level of negligence is depending upon each party involved. Use of an “apportionment form” may serve appropriate to this cause. Upon review of such a form, you will find that a percentage will be attached to whatever number you believe is most representative of a party’s fault or liability in connection to the tort committed. 
If you find and believe that any party listed on this form was not negligent in reference to the case at hand, you’d enter a zero and proceed as so with the rest of the defendants to follow.
According to one tortfeasor act, the qualifications for apportionment of damages, are as follows: When a tort is committed against a plaintiff by a pair or more of defendants, the aforementioned may seek damages from each who is responsible. This accountability must be decided by the court presiding as well. 
This apportionment will not occur, however, if not all joint-tortfeasors are present at the time in court. Since, what often occurs is that one defendant shoulders the majority if not all of the damages to the plaintiff, they will also be entitled to compensation since that amount will have surpassed the previous statement of apportionment. 
The aforementioned joint-tortfeasor is obligated to receive the lesser of the following: the overabundance in the quantity they paid to the plaintiff or the amount that would be paid as falling short of the actual apportionment.
These specifications will not, however, affect in any way the general damages that were already issued and awarded to the plaintiff in the case. Additional considerations would be that of contributions that would occur between joint-tortfeasors. 
Following the judgment for the plaintiff this apportionment may take place to ensure that all joint-tortfeasors involved be equally liable to the case in which they are joint-defendants of. The court possesses the ultimate power in deciding whether or not such apportionment is required, however. 
It is advisable that you are aware of the rules set forth by the judge as well as by the state that you reside within. This is due to the fact that certain states may have distinct legislature as to the apportionment of compensation following a civil case concerning joint-tortfeasors.

Concerted Action in Joint Tortfeasors

Concerted Action in Joint Tortfeasors

In pursuit of a concerted action, more than one individual must be involved. These parties, together, then map out, acquire a general consensus amongst themselves, and finally put into action the scheme of plan they set out to accomplish. They possess combined intent to carry out whatever action it is they wish to achieve. 
When a pair or individuals, in addition to this grouping, decide to commit such a concerted action, which involves the execution and perpetration of a “common tort” or shared civil wrong, they embody the role of “tortfeasors” or more specifically, “joint tort feasors 
The situations that are included under the umbrella of such concerted actions can be put into 3 categories: “substantial assistance and knowing tortious conduct,” “substantial assistance and separate tortious conduct,” and “problem: concerted action.” Each is self-explanatory, with the last being a situation in which both individuals proceed equally in an act, with full knowledge of the consequences that may arise from it. 
It is wise to know such specifics attached to concerted action prior to deciding to become a party or even an accessory to any scheme. You may have not known that you possess just as much liability as the original person involved.

Understanding Mental Disturbance

Understanding Mental Disturbance

Mental disturbance, though most often associated with the medical field as a categorized and classified area of concern directed towards patients possessing such a condition, is distinct within the field of tort law as well. As far back as damages were legally provided for circumstantial consequences of “mental distress,” the stipulation existed where this was only viable if it arose on the coattails of a bodily affliction. 
This became known as a “pain and suffering,” what we’ve come to be familiar with when hearing civil law rulings. In cases such as these, the plaintiff must have been able to prove that the defendant’s own negligence had lead to some physical affliction against them and, therefore, causing the mental distress that fell upon them. This is depicted by the “risk of impact rule,” where these same qualifications exist along with a “zone of danger” condition needed to enable the victim to receive recovery as concerning their deficient mental state.
Presently injury to ones mental not expressly due to any adverse physical condition is accepted as requiring recovery of some sort. They need only acquire some physical contact, in some cases. The “impact rule” calls for such a requirement while not having it necessary to actually attain a physical injury in order to claim damages for mental disturbance as an aftereffect. This, however, has been altered by many regions over the years due to the belief that it lead to more dramatic pleadings as well as drawn-out proceedings, which did nothing more that waste the time and money of the judicial system. 
Most other states go further when expressing that they require that the mental affliction be serious enough to be the root cause or origin of physical manifestations of it. In addition, many states specify that a plaintiff need be only in the vicinity of harm to pursue such a complaint. This is usually articulated as residing within a “zone of impact.” Such an instance may be further described in connection to the identification of “bystander recovery” by other locales. 
According to such a recognized statute, bystanders who were in the area of “the zone of physical risk” were then eligible to recover from the negligence contributing to their own “mental distress.” Exceptions also exist for bystanders who are deemed not in direct risk of harm. These include: physical proximity to the incident, possessing real-time “sensory perception” of the occurrence, and close relation to the victim or directly afflicted.
There do, however, exist situations in which physicality is not the sole reasoning. In such instances as the mishandling of a family member’s deceased body or the equally mishandled notification of their death, judges may modify their qualifications and rule in favor of recovery for such mental distress these negligent situations may have caused regardless of the absence of any physical harm to the plaintiff in question. 
In general, it is quite a trying process for a plaintiff to acquire damages or compensation for any mental disturbance or suffering. This is due to the equal or greater difficulty of attaining proof by the court as to the “emotional damage.” The advent of fraud and other such dishonest claims has made judges both more skeptical and increasingly vigilant in these cases.

What are Prenatal Injuries?

What are Prenatal Injuries?

During suits filed for wrongful birth, plaintiffs must exhibit that medical representatives did not demonstrate the required standard of care during their time with them. This would, of course, be in direct connection to "diagnosis" or "disclosure" concerning the risk of the plaintiff birthing an infant with "genetic" or "congenital" abnormalities. 
 
 
Such a case would be if the doctor, the defendant, was aware that their patient, the plaintiff, had the utmost potential of passing such conditions to their unborn child. Expert witnesses are usually required in such a proceeding dependent on the understanding of both specific and complicated medical processes and terms. 
 
 
Though physicians are obligated to disclose risks to their patients such as abnormalities, they are not required to convey all of them in their entirety, such as in cases where the consequences rendered were a fluke, and represented one of the rare occurrences in comparison to other afflictions that affect people every year. 
 
 
Aside from the contesting of whether or not this is a cause for liability, pursuit of damages is also poses a significant debate. Though many states permit the recovery of compensation due to cases of wrongful birth, still some courts employ an additional ruling, that of the "benefit rule." This entails that the judge orders the jury to decrease restitution due to the assumed "emotional benefits" attached to the acquirement of a child and its effect on the plaintiff's life. This is dependent, however, on the shape in which the infant is born.
 
 
Two other addition cases constituting the pursuit of claims for prenatal injuries include, "wrongful pregnancy" and "wrongful breech of warranty." In reference to wrongful pregnancy, the plaintiff claims that they became pregnant without any desire for it whatsoever. This could be due to a failed detection or "sterilization procedure." As a consequence, as well, the child may be inadvertently harming its mother. 
 
 
As for the wrongful breech of warranty, the plaintiff claims that they were implanted with a "bad embryo." In most cases where the court does award damages to the plaintiff, they me only be in direct correlation to the expenses that accompany the raising of a child with such birth abnormalities in terms of the medical care required due to their condition(s). In some cases of exception, however, the plaintiff may seek additional compensation due to proved "emotional distress" or "physical pain" acquired during the delivery.

Basis of Responsibility in Misrepresentation and Disclosure Cases

Basis of Responsibility in Misrepresentation and Disclosure Cases

The basis of responsibility in cases of misrepresentation, and nondisclosure is based on a comprehensive nexus between disclosure and liability, both of which combine to determine the extent one party has over the services or product they represent in a tort law situation. What the basis of responsibility seeks to ascertain is the level to which an individual can be held accountable in a given a situation, the restitution that must be made if they are found to have committed an act of misrepresentation or nondisclosure, or the level to which their responsibility can be mitigated, up to and including exoneration.
 
 
 
Taken one at a time, disclosure measures the extent to which one party reveals elements or issues that pertain to a transaction or act of representation, the extent to which gauges their legal responsibility. Generally, as a rule, the greater one’s level of disclosure, the more diminished one’s level of responsibilities and liabilities are. Disclosure entails a measure of revealed information, and it is in the interest to a representing party to reveal information, especially when asked.
 
 
 
Liability refers to the level of financial responsibility one can be held to in a particular representation. Usually, the more legally responsible one is for a product under tort law, the higher their respective liability is. Liability can take many forms, all of which are mitigated by the standard or duty of care (in essence, the measure of negligence or responsibility) the forms the basis of tort law, where lack of responsibility could be found to cause culpable negligence. 
 
 
Personal liability directly pertains to the financial responsibility one has due to their own personal actions, such as a case where one intentionally misrepresents the quality of a product so that it causes loss to another party. However, in some cases a more common form of liability entails is what is called vicarious liability, when a representative or someone under the legal auspices of a responsible party make that party liable. 
 
 
This most commonly occurs in the case of family members (such as dependents like children), employees, or other representatives, whose own individual bases of responsibility can be imposed upon the party they represent. For example, if an employee of a company avoids providing full disclosure or commits misrepresentation that causes a loss to the other party, the employee’s company can be held liable and responsible for the misrepresentations of the employee.
 
 
 
Three factors that can mitigate or absolve a responsibly party, and can be appropriated as defensible arguments against charges of liability, are consent, illegality of practice, or contributory negligence. Consent naturally applies to the willingness of a party to enter into a situation that will willfully place them in a losing (or loss accruing position), which would mitigate or even absolve a party from liability. Illegality represents an instance where responsibility is mitigated despite misrepresentation because the service or product was used while the other party was pursuant to a crime. 
 
 
Contributory negligence occurs in situations where both sides misrepresent or commit nondisclosure, leading to legal responsibility and liability shared on both sides. All of these issues can effect liability, which can in term balance the extent to which the basis of responsibility can be ascertained to hold a party at fault or culpable for an act of misrepresentation or nondisclosure.

The Contribution of Joint Tortfeasors

The Contribution of Joint Tortfeasors

In legal terms, contribution is described as the right of an individual pursuing liability from another to receive reparations proportionate to the persons being filed against. Following judgment in which most if not all of the damages were obtained from one party or tortfeasor, there is an option that exists where they may request contribution from the remaining parties as to the share of the quantity. 
 
 
Though, one may assume that discharge from claims to the plaintiff have, thus, freed the remaining tortfeasors from obligation, they are mistaken in this case. The legality of contribution varies depending on your state, however, as some deny it, while still others maintain that it is only permitted if contribution is sought after from those joint-tortfeasors whom the plaintiff had attained the judgment. 
 
 
In cases such as these, those not part of the suit would not be obligated by law to "contribute." Another stipulation that a state may include concerns the distinction between "intentional" and "negligent" joint-tortfeasors as the former may not attain contribution of any kind.
 
 
In the case that contribution is allowed by law, it is usually divided according to the number of joint-tortfeasors, which is known as "pro rata shares." For instance, two tortfeasors would be required to contribute 50% each and so on. Various other states, however, may call into account the amount of fault attributed to each individual, which then split the amounts required accordingly. 
 
 
Determination of fault can be done by taking into consideration the essence of their behavior as was performed as well as the relation between them in connection to the injuries that had resulted. The tortfeasor in question must also prove liability of the rest of his or her constituents in order to justify contribution. A whole separate action may be pursued for these means as long as the statute of limitations 
 
 
Other specifications exist, such as in the state of Illinois, which states additional qualifications for consideration. When a tortfeasor request contribution from the plaintiff's employer, their portion or reparation contribution will not be more than their liability to their employee as stated in the "Workers' Compensation Act" or the "Workers' Occupational Diseases Act." 
 
 
This amount does not go to that specific tortfeasor, however, and will instead be used as a part of their liability compensation to the plaintiff. A release may also be instituted, which would work to discharge all liability attached to future contribution assessed the tortfeasor who it is issued to. Contribution, then, serves the express purpose of ensuring that all individuals involved, and not already exonerate of all liability be equally obligate to contribute to the final judgment. 
 
 
It is only fair that equal trial garner similar restitution for all tortfeasors. This allows for the appropriate dealing of such persons so as to remind them of the consequences of such actions.

Indemnity

Indemnity

Indemnity, which can be found most often in areas concerning financial matters, is an agreement of some type that is composed to ensure that compensation or restitution exists in the event of any loss or damages concerning a particular occurrence. In this way, it stems from the exact same position that insurance companies take as they agree to cover their clients based on several stipulations. Indemnity is meant to serve as protection in the case of issues arising from subsequent claims.
An example would be if you were the owner of a vehicle manufacturer. Following the failure of the breaks of one of the models your plant had produced, a lawsuit was filed against you due to the fact that your initial insurance coverage was not deemed sufficient for the damages the plaintiff incurred. How you are insured according to indemnity, however, may serve you well as it can potentially keep your company from being harmed by too substantial of a loss financially-speaking. 
One of the main uses of indemnity is to maintain the financial structure of a person or company as prior to any unfortunate occurrence leading to a serious claim against them. Often, there exist “indemnity clauses,” which protect one party over the other. This could be found on an agreement when attempting to rent property, for instance.  

The Purpose of Liability Insurance

The Purpose of Liability Insurance

Compensation and Other Judgments 

For example, class actions lawsuits, which are often brought against big business, are meant to provide compensation for victims, as well as reinforce the idea that the safety of people is more important that any business practice. Recently, there was a class action lawsuit involving illegal dumping by a major car company in New Jersey. That illegal dumping resulted in harm to the environment and to the people that lived there, in the form of cancer and other health ailments. Although the companies liability insurance covered much of the compensation settlement, the prosecutors sought to reiterate the value of people over the profit of a company.
The purpose of tort cases is to show that people, and businesses are liable when they behave in a manner that can cause harm to others. Liability insurance is not meant to provide the accused an easy way out of their responsibility for the negative outcome. Tort cases make examples out of the guilty parties, in the hopes that similar negative outcomes can be prevented in the future.

Acts & Omissions in Tort Law

Acts & Omissions in Tort Law

“Good Samaritan Laws” also pose an interesting aspect to the laws governing acts and omissions. According to these types of laws, individuals are accountable in terms of assisting others during an emergency despite the lack of any relation whatsoever. Failure to act means guilt on the part of that individual, however. In addition, failure to act due to emotional difficulty or an injury as a result of provided assistance may lead to a guilty judgment upon the defendant. 
In terms of federal legislature concerning such situations, the United States iterates that, while seeking damages or compensation, the individual or plaintiff must exhibit the injury was a direct result of the negligence of another, where the defendant would be “liable” to the plaintiff according to the law of the location where the “act” or “omission” took place. Prior to any claim being filed under the “Federal Tort Claims Act,” however, the claim must be shown to the entity in which the plaintiff is claiming the act or omission stemmed from.

Understanding Duty in Tort Law

Understanding Duty in Tort Law

The term duty serves two functions, the first would be to supply a basic structure for the various conditions in which liability may come into play, which provide a “general principle” for cases to follow. The next function would be that of “limitation.” 
This entails setting “limits” or “boundaries” for where individuals may be liable to someone else due to consequential irresponsibility and reckless conduct. Duty as a concept is, then, also eventually employed in two ways: duty at the “abstract level,” and “duty in fact or problem.” An example of duty in the abstract would be that concerning whether or not a driver must “owe a duty of care to other road users.” 
In terms of the problem or fact, it would be stated as the other “road user [being] owed a duty” by the driver. A more specific example of duty in the abstract is as follows: Does an owner of a car possess a duty of care to lock their vehicle so as to counteract a thief’s attempts to acquire it, thus preventing them from hitting a bystander with it?
This form of “primary liability” must, however, not be confused with “vicarious liability,” which specifies that someone other than the “defendant is liable for a tort committed by someone else.” In terms of primary liability, the defendants are held accountable “for their own tort failing to control others.” Another duty is to that of an attorney as they have a duty of care which they must bestow upon the individuals they represent in legal proceedings.
Now that we have familiarized ourselves with the concept of duty, we must come to the realization that such a duty may also be breached. This can be examine both subjectively and objectively. A subjective view would be that of the defendant bringing the plaintiff toward harm with full knowledge of it.
In contrast, an objective aspect would be a defendant who was ignorant of the potential harm, which any other person with adequate common sense and reasoning would be aware of. In order for such a breach of duty to be pursued against, the plaintiff’s lawyer must demonstrate to the court that the actions were directly responsible for the harm that fell upon them.