Monday, December 15, 2008

Liability Wins! Courts and Torts 101

Liability is a hard topic to generalize about. Each state has their own codes of laws and their own case law. This is one of the major reasons each state has its own licensed lawyers. I never expect my readers to be here for 500 word or less feel good blurbs, but this topic is going to take some time and you need to understand the basics to get to the stuff you think is important. This could take weeks. If your time is that valuable, you an afford lawyers so you don’t need to figure things out for yourself. Clearly I am already anticipating boring you, but I figure of you want fast and funny there are 2,000,000,000 much better websites out there for you to read. When I am done, you will be an educated consumer of legal services. When the funny websites are done with you then you will have just had a really good time and be healthier and happier. O. Crap.

So anyway, liability for most lawsuits is what we call Torts. That’s where the big money is. That’s the litigation everyone fears and argues about. Unlike contracts law, torts law is designed to make you whole again and even to punish the wrong doer so they don’t do it to someone else. This means apportioning the blame and responsibility can be tricky and each state has ala carte menu to chose from that can make up several different combination of law. I am going to have to break this up over several posts because even the most fascinated and loyal reader is going to get bored unless I do. If you really wanted to know all this you would go to law school, but since you didn’t here is the free version of the $100,000K education.

Torts have elements. They are duty, breach, causation and damages. First you must have a duty—either a common law implied duty or a statutory duty. That means it is your responsibility to make sure someone else suffers no damages due to your action or inaction. You have no duty to strangers. You have no duty to be a good, helpful kind person. You can ignore a person bleeding in the street. You walking away from said bleeding person may actually be the reason they die, but its not your duty to help. You do have a duty to anyone who you invite onto your property or take money from for good or services or even some trespassers. You have a duty to not act in reckless and outrageously cruel ways. There is sort of an implied duty to do no harm, but no duty to help.

So when you walk a dog or board a horse or teach a lesson or let your friend ride at your farm you have assumed a duty. The duty is that you will act in the same way a reasonable person would and live up to your local and state standards of being careful and responsible. It means you will take reasonable precautions for safety, disclose what risks are known and not allow dangerous situations that may harm people to exist after you know about them. If you do not live up to your duties you have breached. Now you are halfway to getting sued.

Next is causation. Did your breach of your duty actually cause the damage? That’s a tricky one and that is ruled by past events in your courts' rulings. The scope of the causation can be limited and it has to be proven. There has to be a good story how your breach caused some injury, but like any good story the winning can be in the telling. Some cases rely on science and expert witnesses to make the connection. With most animal cases the causation in based on less objective standards. Had you not been doing X, would Y have occurred? 10 people take the stand and say ‘no’ and five people take the stand and say “yes”. Then someone decides which people seem more credible. That could be based on looks, fashion, tone of voice or any other non-scientific characteristic that makes them sound smarter then other witnesses. A white middle class male with an advanced degree can trump 3 women with the same degree. Causation is where most cases are won or lost.

Lastly, there are damages. Almost is not good enough. He could have X is not damages. You need actual damages that in most cases caused you some kind of economic harm. Even bodily injuries are translated into dollar amounts. Psychological damages do exist, but they have to be substantial and caused you to lose some money as in you can’t work or sleep or leave your house because of X’s actions. Lack on income or enjoyment are damages. So is lack of sex. If someone breaks your spouse's fun machine and you don’t get any that is damages. Sex is worth money, we all know that, but its only legal to charge for it in court.

That’s all for today. Just spend the day thinking of when you might be taking on a duty and when you might not be. Do you have a duty to tell that man in the 7-11 his shoe is untied? Do you have a duty to tell a boarder that the horse she is going to buy has reared and hurt people before? How might your actions today to people you do have a duty to have been breached even if nothing went wrong? Did a dog slip its collar but come right back? Did you accidentally leave a gate open? Did you put off fixing that broken fence for one ore day? Then fret for a few hours over all the ways your breach of a duty may have caused harm and how much $$ that harm could have been worth. What fun!

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