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Abolition of Category Laws

Abolition of Category Laws

Following a statute in England, the United States joined in the abolition of laws that classify those that lawfully enter a propertyowners
 
 
Once certain laws were passed as the primary steps toward such a change, individual states began to abolish the categorization on their own. Following by example, more and more jurisdictions gathered and universally agreed to do the same. Specifically, the case of Rowland vs. Christian in California extinguished the separation of invitees and licensees in regards to entitlements. 
 
 
There was also a case in Massachusetts in 1973 recorded as Mounsey vs Ellard. This case dealt with a person who happened to be a police officer was delivering a summons to another person at their home. During his course of work, the officer fell on ice that had accumulated on the premises of the person and injured. 
 
 
The officer under the set circumstances at the time, would be known as a licensee on that property and the owner of the home would not be held liable for the injury of that person. This case helped change that by imposing negligence on the home owner and doing away with the classification of a licensee and invitee.
 
 
In Nebraska the Heins vs. Webster County case brought upon the similar issue of liability with premises. This case dealt with a father visiting a daughter who was an employee at a county hospital, making him a licensee on the property. On his way out of the hospital, he slipped near the entrance and caused a great deal of harm to his back upon landing. 
 
 
The man did not receive recovery under the current Nebraska law labeling him a licensee. The state's Supreme court later argued the categorization of licensees and invitees was wrong, and abolished its existence. The court ruled that there must be a certain standard care for people lawfully entering a premise, under reasonable terms. These cases and many others such as Basso vs. Miller in New York State, helped raise awareness for such changes to be made on a national level. 
 
 
Soon after, jurisdictions nationwide began to make these changes prior to finding themselves in the position of being forced to do so, due to a similar case. It was clear that there needed to be a change made to avoid lawsuits, and to grant people that were lawfully entering a property the equal rights and protection regardless of their reason for entry. This of course does not deal with trespassers in any way shape or form, strictly the lawful occupants on premises. 
 
 
Although a great number of jurisdictions followed the example and abolished the categorization of licensees and invitees, certain ones have held their stance on maintaining a distinguished division between licensees and invitees. 

Employers Liability

Employers Liability

Employers’ liability is a form of strict in that it holds the employer responsible for any harmful actions committed by their employee(s). In this way, the individual who is in charge must absorb the consequences as long as their employee(s) remain within the scope of practice that the employer set forth. “Respondent superior” is another way of describing such an aspect of strict liability as it is literally translated as “let the master answer.”
One of the earliest forms of employer liability legislature came in the form of the “Federal Employers Liability Act (FELA) of 1908. This particular act served to protect the labor rights of railroad workers at the time who were constantly at risk for injury. Under this statute, workers were able to attain compensation due to comparative negligence 
In addition to the lengthy process that must accompany pursuit of employers’ liability as opposed to what we now know as workers’ compensations, we must be aware of the fact that according to such a statute, the employer is only accountable for harm caused by the formers “breach of a duty” afforded to the plaintiff. An example of this would be the employer’s own negligence in the incident in question. In such a case, negligence by fellow workers will have no effect on the judgment.

Opinion and Intention in Tort Law

Opinion and Intention in Tort Law

Where the conditions that are used to determine situations of misrepresentation and nondisclosure become somewhat murky lies in the role that is played by the somewhat abstract roles opinion and intention play in tort law and product representation. 
 
Determining intent can play an important role when determining with issues of misrepresentation, because it remains integral to determining whether misrepresentation would have occurred.  To put things very simply, intent, on both sides of representation issue, is the dictation of what on expected to receive from a transaction.  
If the individual entered into a deal, forgetting a key piece of information that either would have proved vital to the injured party’s decision to undertake an agreement, or otherwise simply failed to realize its importance, he could be found less culpable in the situation because the individual entered the transaction with intentions of acting in good faith.
 
Opinion also plays a key role in all elements of tort law, because determination of neglect or responsibility, under the core standard of care on which tort law is based, is centered on finding a unity of opinion in the eyes of the law (or legal body, such as the court). 
 When applied to arguments over misrepresentation or nondisclosure, determinations over whether each occurred in a given situation, are again, formed by achieving a legal unity of opinion, which becomes more tenuous when the conflicts over whether something has been withheld or misrepresented is formed over a difference of opinion.  For example, if one advertised a baseball product that said it would help someone hit a home run, but the complainant argues that because it failed to help him hit a home run, it does not work. 
 
In both instances, intention and opinion can be very difficult to prove and establish under tort law, as their subjective nature can be difficult to quantify, causing situations where issues of plausible denial may prevent the formation of the unity of opinion that lies at the heart of nearly ever tort action.

The Best Remedies for Misrepresentation

The Best Remedies for Misrepresentation

Misrepresentation represents a unique facet under tort law, especially when under the auspices of  In tort law, misrepresentation, in most of its forms, represents a core violation to the standard of care, which is used in the determination of culpable negligence. 
Under tort law, when misrepresentation can be found to have caused the victim of it to have incurred some form of appreciable loss, then the victim has the opportunity to pursue legal remedies for their loss from the party who misrepresented the original product or service.
While tortious misrepresentation usually stops short of contracted agreements (which themselves fall under the auspices of contract law), under British Common Law, due to the UK’s Misrepresentation Act of 1967, remedies from contractual misrepresentation can be acquired under tort law. and are thus covered under tort law as opposed to contract law.  
Interestingly, a party accused of misrepresentation under common law can be accused of misrepresentation even if they entered into a contract within good faith, as the standard of the contract implies that it is the responsibility of the misrepresenting party to determine that they are able to enter into the agreement.  
In the case of an unintended misrepresentation, which entails specific negligence, it is often more common to pursue remedy under the auspices of statute law, as it shifts the burden of proof to the individual making the misrepresentation, while in tort it falls on the plaintiff to establish that misrepresentation occurred.
The primary and most desired remedies in a case of misrepresentation is typically rescission of the agreement, which, effectively, is an effort by the complainant to remove themselves from a binding agreement that was made due to the misrepresentation.  
There are instances where rescission is not possible, mainly in situations where it is impossible to restore a situation to how it was before entering a contract (which can then be used to ascertain if losses have occurred

Representation & Nondisclosure

Representation & Nondisclosure

Generally, when one enters into an agreement with a party, there are entitled to specific levels of disclosure on the part of the other party by law. This is done either at the request of the first party, under the guidelines covered by the standard of care, or else the party runs the risk of committing tortious negligence or fraud. 
If these conditions are not met, and a party has been found to be maintaining a policy of nondisclosure, this can lead to charges of misrepresentation, and they can be used as the basis of a tortious action. Usually elements categorized as representing nondisclosure include terms that would directly effect the nature of the agreement, up to and including fraud.
 
In the case of legally binding agreement of representation (ones usually not covered by a contract, like accounting services), issues of nondisclosure can also include elements that would have directly effected the terms in which representation would be enacted, such as in cases where there could be found to be a conflict of interest, or a misrepresentation of abilities or inabilities (such as particular forms of certification, for example when someone claiming to be a certified accountant actually is not). 
In many of these cases, certain non-disclosures are found to be able grounds to void an existing contract, and may entitle the wronged party to damages under tort law in the instances that losses have been incurred.
 
Often, cases of representation and nondisclosure enter into situations that specifically entail the transfer of property, products, or services, which are not covered
 
However, it remains that in many aspects in representation and nondisclosure, there is still a significant onus upon a buyer or client to request information themselves. In which case, the vendor of the product or service is required to provide full disclosure when asked, and must discuss, truthfully, elements that directly pertain to the representation of the product.
 
When willful nondisclosure occurs in the instance where a product or service is sold or transferred in the interest of exploiting the other party, it would typically represent a form of fraud, which could be susceptible to not only tortious complaint, but criminal as well.

A Look at the Misuse of Legal Procedure

A Look at the 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.

Malicious Prosecution:

Malicious Prosecution is a tort much like Abuse of Process, which involves the initiation of a legal action without probable cause. The litigation filed, may either be criminal, or civil, and must be dismissed in favor of the defense. This is the key point of difference between Abuse of Process and Wrongful Civil proceedings. 

While Abuse of Process relates to the filing of claims or serving of documents without cause, it may not affect the outcome of the litigation at hand.  Abuse of Process may still be found even if the court finds in favor of the plaintiff's original claim, whereas Malicious Prosecution charges may only be pressed if the court or plaintiff terminates the lawsuit in favor of the defense.

Wrongful Civil Proceedings:

Wrongful Civil Proceedings are civil lawsuits filed without cause of action and merit, by the court. A person is guilty of Wrongful Civil Proceedings, if he or she acts negligently without cause of action to file a civil lawsuit.  Proper cause of action includes the use of court to find facts and render judgment for claims; anything outside of this purpose is considered violation of tort and a Wrongful Use of Civil Proceedings. Importantly, if civil proceedings are terminated in favor of the defendant, the defense may file a misuse of legal process claim to recover damages in a frivolous lawsuit.

Abuse of Process:

Abuse of Process is an intentional tort of Misuse of Legal Procedure. Abuse of Process involves the knowing misuse of public access to courts. Tort law defines Abuse of Process as a misuse or perversion of the court procedure and due process without grounds for legal action. Process refers to the summons or subpoena from the court. 

This is a distinct allegation, as it specifically refers to the reports issued by the court and their proper use – it does not necessarily indicate frivolous litigation, though it may be part of a similar series of Misuses of Legal Procedure.

Wrongful Civil Proceeding

Wrongful Civil Proceeding

 

The actions of the plaintiff in the trial itself are of particular importance to these allegations of wrongful civil proceedings. The court must determine if the plaintiff acted with ulterior motive, or intent to bring about any other effect than the finding of facts within the court. If it was found that the plaintiff merely sought to harass the defendant, or that the plaintiff was "gambling" on an unfounded claim for a potential award, he or she may be found in violation of tort, and ordered to compensate the defendant for expenses incurred in a wrongful civil proceeding.

Recently, case law has stipulated that a plaintiff may be subject to wrongful civil proceeding charges even if he or she terminates the suit on his or her own accord. If the charges are dropped mid-trial, the defense may still request that the court review the plaintiff's cause of action for ulterior motive or insufficient merit, and may seek compensation if the court finds any Misuse of Legal Procedure. If you need legal advice and assistance, contact wrongful death lawyers.

The Best Defenses for Negligence

The Best Defenses for Negligence

Contributory Negligence: 


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. 
It is said that the plaintiff intervened in the defendant’s actions and made it more likely for the defendant to cause him injury. Just as the defendant has the duty to reduce the amount of undue risk to others, the plaintiff has the duty to protect himself from possible harm. Contributory negligence includes the plaintiff’s knowledge that the situations he was in, posed an unnecessary risk to himself and he should have taken precaution. If even a slight amount of contributory negligence is found on the plaintiff’s part, then it bars him from taking any action against the defendant. 
“Last Clear Chance”: 


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. 
It is often found that, the later action, or lack of action, by the defendant, caused the most harm in a situation; this points to a greater amount of fault on the part of the defendant. The last chance rule is generally upheld in cases where the plaintiff is in a helpless situation or the defendant is more aware of the perilous situation than is the plaintiff.


Comparative negligence:

   
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. This is often considered unfair and is the reason that a system of comparative negligence has emerged which weighs the amount of fault in both parties, to determine who is responsible for the plaintiff’s injuries. The apportionment of damages, where each party pays a portion of the injuries, has been divided into three systems: pure, modified, and slight-gross.
In a pure system, contributory negligence does not bar the plaintiff from taking action, but awards him only a portion of the damages for which the defendant was responsible. In a modified system, a plaintiff is awarded damages only if his negligence is less than or equal to that of the defendant’s. A slight-gross system awards damages only if the plaintiff’s negligence is considered to be slight and the defendant’s is gross negligence. Comparative negligence has basically overridden the doctrine of last clear chance.

Assumption of Risk: 
Assumption of risk implies a certain level of consent on the part of the plaintiff to engage in risky actions, without any duty of the defendant to protect the plaintiff. The aspect of duty in assumption of risk means that the plaintiff has entered into some kind of relationship with the defendant with full knowledge that it is not the defendant’s duty to protect the plaintiff from harm. When a plaintiff assumes risk, he must voluntarily chose to engage in this conduct; this can be seen through either express agreement or implied agreement.
 In express agreement, the parties have a contract which excuses the defendant from all responsibility for injuries incurred by the plaintiff. This normally bars the plaintiff from taking any action against the defendant. Implied agreement is assumed through the plaintiff’s words or actions. The defense of assumption of risk is only applicable if the plaintiff engages in this assumption freely. The emergence of comparative negligence into negligence law has altered the way assumption of risk is looked at by the courts.

The Use of Proof in Negligence

The Use of Proof in Negligence

Functions of Court & Jury
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 issues 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 jury must decide whether the misconduct of one party under their responsibility of a given duty, directly caused harm or injury to another party. If the jury finds that the party is negligent, then that person or persons, will be held liable for all damages caused to the victim. 
Negligence cases are highly common and usually deal with injury related to accidents in stores, restaurants, public places, motor vehicle accidents, etc.. These cases require clear indisputable evidence that highlights the misconduct of the responsible party, as proof that a negligent act lead to such accident or injury.

Burden of Proof & Presumptions
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 that the act by a defendant led to the injury sustained by the plaintiff. 
These four elements relate to the following: that the defendant was under responsibility of a legal duty (to protect),  that there was a failure in proper conduct by that party, to show that this failure led directly to the injury caused to the plaintiff, and finally that an injury actually occurred and is evident.  
All these details must be presented to a court in the form of evidence, which can be direct or circumstantial. Provided that this proof is given clearly to the court, and the proof confirms the negligent act, the defendant would be held liable for his or her actions and the damages endured by the plaintiff.
Circumstantial Evidence-Res Ipsa Loquitur
Circumstantial evidence pertains to a type of evidence that exists to indirectly prove a case, and is not as evident or clear as direct evidence. Since direct evidence for a case would be a witness account, or perhaps a video containing the act, it can incriminate the defendant to the negligent act.  Such evidence can be the physical remnants of an accident or injury, and can be proven through a series of scientific tests and theories. 
Forensic science is one of the key components used to provide circumstantial evidence in a case, and has been successful in doing so. There is an type of circumstantial evidence, which is also referred to as a doctrine in the field, that serves to prove negligence known as res ipsa loquitur. Res ipsa loquitur requires that four elements be provided in order for the evidence to be valid and existent. The term itself is derived from the Latin phrase “ the thing speaks for itself”, referring to the accident. 
Res Ipsa Loquitur-Procedural Effect
A case that provides a res ipsa loquitur evidence must meet four demanding factors of such a type of circumstantial evidence. These four elements are:  that the accident existed solely due to the misconduct of the defendant, and could not have happened otherwise, that the accident happened under the responsibility and/or attention of the defendant, that the plaintiff did not take part in any actions that would contribute to the accident’s occurrence, and finally that the detailed evidence and description of the accident be made highly available to the defendant.  The elements provided give a clear account as to the failure in responsibility by the defendant as well as it’s direct correlation to the injury sustained by the plaintiff, and make such evidence accessible to the defendant. 

Definition of Burden of Proof for Negligence

Definition of Burden of Proof for Negligence

Burden of proof negligence
Since the plaintiff has these as a burden of proof over the the defendant, let’s begin by looking at an example to gain a better understanding of the matter. Say a person has purchased  a coffee machine from a well known brand. This person happens to burn their hand severely by touching an area of the coffee machine which was severely hot, and had no written warning on the machine itself or the user’s guide/manual. 
This could be in the form of a cautionary sentence stating that the machine may become overly warm in a certain area, and for user to be careful not to place hands or other body parts near that area while in use. It could also just be as simple as a ‘do not touch-hot’ warning on the area of the machine itself. 
The person sustains injuries which require medical attention, and are recorded on medical records and/or photos (in some cases, a person could call the police to fill out an accident report as further proof). It is the presumption that the manufacturer is responsible for the safety of its consumers, which is implied by selling a product
Once the plaintiff has dealt with his or her burden of proof, and if all the details are correct, the ruling will be in their favor. The defendant will be held negligent in an act that has caused injury to a person, in this case a consumer, and will be held liable for damages.