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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. 

The Guide to Owners & Occupiers

The Guide to Owners & Occupiers

Outside of the Premises
The concerns for areas outside of the premises of a given property deal with the condition of such a property. This is in direct regards to certain factors and attributes such as structural or fixtures on the property that could have an effect on the immediate areas surrounding it. Any disturbance to the area outside of the premises is a public nuisance and can present itself in many different ways. 
This can deal with things such as noise, and odor, as well as unseen damages by emissions on a commercial property. There are regulations that prevent property owners from disrupting people in such proximity to their property to prevent issues that negatively affect the public. Also, there are matters that protect the livestock on a property from noise nuisance in some cases, so these would be in respect to animals and not just the people around the premises. 
Trespassing Adults
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 that owner’s permission or consent.  Because the person is an adult by the age standards set, they are subject to facing trespassing charges as an adult for their actions. These people do not hold licenses or “invitations” to make use of such property and in addition may be in direct violation to postings that warn people of prosecution due to their trespass.  
The trespassing committed can vary in nature and description, which are the determining factors for punishment. The punishment for adults is more grave than that for minors, dependant on the details of the act committed. A trespass can also relate to a person violating a person’s personal space if they choose to attack them physically in some instances. 
Trespassing Minors

Trespassing minors deals with unlawful occupancy over a property by a person who is deemed a minor by the age statutes set. In most cases there are individuals who occupy a property without permission or consent for their own mischievous purpose, commonly among teenagers.  Most trespassing charges with such youths deal with loitering on abandoned property, or sometimes causing damage to property due to peer pressure.  
An example of trespassing minors would be a group of minors entering a commercial property such as a factory to throw rocks at windows of the building. The crossing of the fence alone is considered trespassing, unless there was no fence and the individuals entered through an implied license or invitation such as that of being in a mall parking lot and committing the same action. Regardless, the damage to the structure is still a crime on its own, the question of trespass would be dismissed. 


Licensees
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 with the law.  Licensees are typically regarded with less respect and/or benefits than an invitee. An example of a licensee would be a person entering a field to watch a game on the bleachers of that field, that is owned by the town, county, or other organization. This person is free to enter and leave the property as posted, but the owners of the field are not responsible for that person while on their property. 
Invitees
Invitees, like licensees, have the lawful right to enter, occupy, and travel through a property with the permission and consent of the owner. Invitees are typically patrons of restaurants, bars, etc.. and customers of retail stores, and other types of stores. These individuals have the right to enter the premises and occupy the space for the purpose of eating or shopping, so that the owner of that property conducts business.  
The difference between an invitee and a licensee, is that they benefit in case any harm is caused to them while occupying such a property. The owner is liable to keep an invitee safe while on the property, and avoiding any harm or danger that may present themselves to the person. This includes informing the customers and patrons of any impending danger they may endure while visiting the property.  If they are subject to any injury, then the owner if the property is liable for the damages caused. 

Abolition of Categories
The abolition of categories such as licensees and invitees was made in certain jurisdictions to avoid favoring one lawful entrant over another. It started in England and made its way over to the United States shortly after. A few cases presented themselves of personal injury in properties where the owner was believed to be liable, even though the person injured was a licensee. Court battles were won by these individuals, which in turn abolished the categorization of an invitee and a licensee. 
This gave both parties equal rights to be treated the same in case of an injury while occupying the property. After the first case, others occurred in varying states which caused these jurisdictions to join in. Although most states joined, some did not and still keep a distinct separation of licensee and invitee. 
Lessor & Lessee

Lessor is a person who chooses to transfer ownership over their land to a new person, assuming the responsibilities over that land. The lessee is the occupant that takes ‘ownership’ of that land for a specified period of time and fee, as stated in a lease agreement. This occurs mainly with an owner renting out a piece of property for a given term. 
Once the lessee takes possession of such property, they are responsible for maintaining it, the things that occur on the property and around it. The owner is not liable for any harm caused to people on the land unless he had prior knowledge and did not notify the new occupant prior to transfer. In the lease agreement, the lessee does not receive the title of the property, simply a ‘temporary ownership’ of it. 
A vendor and vendee are established when property is sold from by its current owner, to a new owner. The buyer of such property is recognized as the vendee, while the seller is known as the vendor. Once the property has been purchased, the title of that property is conveyed to the vendee, and full ownership of that property is acquired. Along with ownership, the vendee assumes all the rights and responsibilities that an owner of that property must endure. 
The former owner (vendor) is relieved of all duties of ownership that prior belonged to him. Any injuries that occur on the property or harm to others, are now held liable to its current owner. The only way such liability would belong to the prior owner, is if he did not notify prior to or at the time of purchase, to the buyer, that such dangers existed on the property or could exist at a given point in time. In this case, the failure of information could result in the liability being turned over to the vendor, rather than the vendee.

What Does Outside of the Premises Mean?

What Does Outside of the Premises Mean?

The reference of outside of the premises as it relates to owners and occupierspropertyowner
Regulatory measures are taken to improve the quality of life of both people on a given premise, and the people outside of the premises around them. This is not limited to the people but also to their pets, animals, or other property that is subject to any influence of a given property or person. While taking into account the area outside of premises, more positive things can be achieved for people altogether.

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
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