Tortfeasor/Multiple Tortfeasors

Tortfeasor:  Person being sued for tort, can be different reasons for multiple tortfeasors in one case (joint tortfeasors):

Example: Plaintiff-victim can file a case against multiple defendants.

Example: Plaintiff-victim files a case against one defendant, and then that defendant joins/sues other defendants, claiming they contributed to the problem.

MULTIPLE VICTIMS IN A TORT CASE

CLASS ACTIONS  

Large groups of injured persons, who are similarly situated, can obtain redress in a single lawsuit, rather than filing hundreds or even thousands of separate suits.

-Many small problems (long distance companies that round up cell phone minutes, resulting in maybe a 50 dollar loss per person, not worth investing in time and attorney fees).

TORTS BY INTENTIONAL CONDUCT

Deliberate conduct by one person, that injures another person, is an intentional tort.  This differs from either negligence or strict liability torts.  The people being sued did something on purpose, no accidents involved.

-Assault

-Theft

-False Imprisonment / Wrongful Arrest

-Intentional Infliction of mental Distress

-Defamation

-Invasion of privacy

-FRAUD

-BAD FAITH

TORTS BY NEGLIGENCE

TORTS BY NEGLIGENCE (majority of torts)

1. Violation of a statute / criminal or civil / is proof of negligence.

Example: Car accidents, tickets, and a judicial finding of liability.

Only question is damages.

2. What happens when there’s no statute…

THE ELEMENTS OF A LAWSUIT BASED UPON NEGLIGENCE:

The Plaintiff must prove, by a preponderance of evidence:

1. That the Defendant owed a duty of care to the person injured (plaintiff).

2. That the Defendant breached the duty of care through his or her unreasonable conduct, e.g., an act or omission.

3. That the Defendant's breach of duty of care was both the ACTUAL AND PROXIMATE CAUSE of the victim’s injury.

4. That the injury justifies an award of damages (in other words, the victim has demonstrated some real economic loss, or damage, that might include pain and suffering),  and that there is no social policy that should result in the defendant not being liable.

THE DUTY OF CARE

(Can not go around doing this a reasonable person would not do)

1. Every person must operate as a “reasonable person”, and use ordinary care in how we interact with others.

FORESEEABILITY

Limit on the Duty of Care.

Without foreseeability, there is no duty of care, and thus no tort

DID THE DEFENDANT BREACH THE DUTY OF CARE?

Test: Did the defendant either 

(1) do the act that was unreasonable,

under the circumstances; or

(2) not do an act which a reasonable

person should have done under the circumstances.

CAUSATION

The defendant's conduct must be both the actual and proximate cause of the victim's injuries.

Actual Cause Test: 

Would the injury have occurred “BUT FOR” the defendant’s conduct. 

Proximate Cause Test: 

Did the act actually cause the injury?

Proximate cause = the true cause which, in a natural and continuous sequence, caused the injuries.  Proximate cause will be found if there is the ability to see or know, in advance, that the harm or injury is a likely result of the acts or omissions.

THE INJURY REQUIREMENT: 

No injury = no tort = no recovery.

To recover damages, the person injured must have suffered some loss, harm, or invasion of a protected interest. 

DEFENSES TO NEGLIGENCE

ASSUMPTION OF RISK.

If you voluntarily put yourself in a dangerous situation, and are injured, you can’t sue to recover damages.  

Example: 

A boxer who is injured.

A fan is hit by a Barry Bonds, steroid-fueled home run.

But conduct that it outside ordinary play, especially if intentional, may

Give rise to liability.  Ask Mike Tyson. 

COMPARATIVE AND CONTRIBUTORY NEGLIGENCE

This rule provides that a plaintiff, who was himself negligent, may nonetheless collect damages from the defendant, in proportion to the damage inflicted by the defendant.  This rule requires that the defendant be MORE negligent than the plaintiff.  $100,000 worth of damages, jury determines plaintiff 51% fault, defendant 49%, no money is awarded.  OR, Jury determines defendant 51%, plaintiff is awarded $51,000 or whatever % of fault is applied.

EXAMPLES OF SPECIFIC TORTS BASED UPON NEGLIGENCE.

PROFESSIONAL LIABILITY.

“The failure to use that degree of care, learning, and skill ordinarily possessed and applied by the average prudent member of the profession in the same locality.”

2. PREMISES LIABILITY

STRICT LIABILITY TORTS

In some circumstances, as a matter of public policy, certain people and businesses MUST compensate persons who are injured by their products, services or activities.  The victim need not prove an intentional tort, or even a tort based upon negligence.

THE CALIFORNIA RULE

DAMAGES:

COMPENSATORY DAMAGES are also called ACTUAL DAMAGES because they consist of money damages awarded to the plaintiff for real (actual) loss or injury.  They may be broken down to:

SPECIAL DAMAGES = Out of pocket damages that can be specified: Lost wages, medical bills, lost income, cost of repairing a car.  Cost of future lost wages  (w/discount rate).

GENERAL DAMAGES = Other than out-of-pocket expenses.  These include PAIN AND SUFFERING, MENTAL DISTRESS, LOSS OF CONSORTIUM (not available unless married).

PUNITIVE DAMAGES 

This is the case where the civil law PUNISHES the tortfeasor by allowing extra damages where the tortfeasor is particularly blameworthy. The purpose is not to enrich the plaintiff, but punish the defendant.  Can’t get punitive damages w/out first getting some general damages. 

SURVIVOR STATUTE

allow the decedent’s claim to flow to his estate, and

the estate to sue, then distribute the money to the heirs. 

BARRIERS TO THE COLLECTION OF DAMAGES:

Statute of limitations.

Judgment Proof Creditors.

Bankrupcy.

THE US CONSTITUTION AND FAMILY LAW

The U.S. Constitution, via the “Right to Privacy” and other implied rights, seems to give people/family the right to

Marry (Supreme Court had to strike down state laws…)

B. Birth Control: Griswald v. Connecticut.

Full Faith and Credit Rule (From US Constitution)

EX. Art. IV, section 1 “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every state”. 

Intent: If a contract is legally created in State A, pursuant to State A’s law, then State B must also recognize the same contract even if the contract could not have been legally created in State B.

Washington Legislature has passed the Defense of Marriage Act, outlawing same sex marriages in this state

US Congress has passed “Defense of Marriage Legislation”, saying that no State need recognize a same sex marriage created in another State.

Some people argue that because the Full Faith and Credit Clause is a Constitutional Rule, which trumps both State laws, as well as State Constitutions, the Supreme Court will require other states to recognize same-sex marriages lawfully created in (currently) Massachusetts

WHAT IS A MARRIAGE

A “status”, the legal union of husband and wife entered into by means of a contract, which is enforceable by a court

COMMON LAW MARRIAGE 

14 States allow common law marriage: when man and woman must be legally qualified to be married, must cohabitate, + create impression of marriage, and must intend that it exist.

DOMESTIC PARTNERSHIPS

Several cities, including Seattle, give domestic partners the same benefits that are available to married couples. This is done by ordinance.

LEGAL CONSEQUENCES OF BEING MARRIED

Obligation of support.

Continuing and mutual support is required;

A crime to abandon children

PROPERTY RIGHTS IN MARRIAGES

COMMUNITY PROPERTY STATES (WASHINGTON)

All property acquired during marriage, other than by GIFT of inheritance, is community property, owned equally when received.

EX.LOTTER WINNER

Upon dissolution, accumulated earnings are divided equally;

EX. STOCK OPTIONS

Separate property retains its separate character, even if acquired during marriage (gifts, inheritances)

Commingling: this occurs if separate property cannot be reasonably traced back to its origin.

EX: Craig McCaw Divorce Suit

Gifts of Community Property: Not allowed

CREDITORS OF THE FAMILY

Unpaid creditors can reach all community property.

Example:Husband punches mailman: community property at stake.

Either spouse’s earning during marriage may be taken to satisfy

Pre-marriage debts.

DIVORCE

-What it means/doesn't mean

-What is required

Divorce ends the marriage BUT it does not necessarily terminate spousal responsibilities that arose during the marriage, including (1) spousal maintenance and (2) child support.

Washington is a NO FAULT divorce state: the only things that need to be established in court are:

a breakdown of the marriage  (established by testimony) and

the objective fact of physical separation (for a period of time)

ALIMONY

Spousal Maintenance, or Spousal Support)

Intended to get the “other” party of his/her feet:

1. (Rarely) May be indefinite and permanent;

2. Normally, rehabilitative alimony ends at specific term; (EDUCATION)

3. It always ends w/death of either party, or remarriage of party receiving the benefits;

Amount depends upon (States have formulas and tables for this)

Financial condition of spouse needing support;

Length of marriage;

Age, job, education of the parties

Tax consequences

DIVISION OF COMMUNITY PROPERTY

(WASHINGTON RULE)

All property acquired during the marriage, other than by gift or inheritance,

must be distributed equally to both parties, since each “owns” half. If the 

Property cannot be divided, it can be sold and the assets divided.

Court may divide the property in ANY manner that is “just and equitable”, 

Even though it is not split 50-50. (The difference may act as a substitute 

For alimony.)

Professional Degrees: May be community property.

1. Wishes of parents and child (depending upon age, etc.)

2. Child’s adjustment to home, school, community

3. Mental and physical health of all individuals

Guardian ad litem

CHILD SUPPORT

Court has power to order this distribution, enforce it:

Statutory Guidelines Used:

1. Child’s necessities

2. Parent’s standard of living

3. Financial status of parents

4. Earning capacity of parents **** (stop lawyering/teach)

5. Future educational plans of child (up to 18, once over 18 parents have no obligation to contribute towards your higher education whether they are married or not)

6. Duty of each parent to support people (new spouse).

COLLECTION OF CHILD SUPPORT

May be enforced by the courts – even in other states.

Non-paying spouse may be ordered to jail for contempt.

Prosecutor can get involved (WE DO) Uniform Interstate

Family Support Act

WHAT IS Domestic Violence:

It’s not just assault, it can be any number of crimes WHEN COMMITTED by people having a specific relationship: spouses, former spouses, people who previously dated or are dating; relatives by blood or marriage; adults who previously or presently reside together (college roommates qualify).

-Dont get convicted of domestic violence, rather it is a postscript that is added to charges of other crimes such as assault

MORE RESOURCES TO VICTIMS POLICE AND PROSECUTORS INVESTIGATING DOMESTIC VIOLENCE

1. POLICE: MANDATORY ARREST RULE (4 hours)

To de-escalate the situation. (Adopted in 22 states and D.C.)

2. VICTIMS: ORDERS FOR PROTECTION

RESTRAINING ORDERS

ANTI-HARASSMENT ORDERS (Non DV

3. PROSECUTORS:   NO CONTACT ORDERS (PRE / POST TRIAL)

Vigorous pros. of VNCO’s – Standard range.

The guy doing 3,200 days.

Find them together, arrest them.

PROSECUTION W/OUT VICTIMS

CONTRACTS

An agreement that can be enforced by a court, the breach of which gives may give rise to money damages.  Private law, people agree that this will be the law that governs their relationship 

THE UCC

The Uniform Commercial Code.  Adopted, in all or part, by all 50 states.

The idea behind the UCC is to make things more consistent among the 50 states. Where people are engaged in INTERSTATE COMMERCE, you don’t want 50 different sets of rules.  Consider how difficult it would be for Boeing, which may buy parts from 30-40 states, to have to be familiar w/30-40 different state laws concerning contracts.  Boeing would pay huge sums just to employ lawyers in these state to make sure it was acting within the law, thus making it less competitive.  Uniformity gives rise to greater certainty among contracting parties, for far less money. 

The UCC covers a variety of topics.

The UCC covers SALES (the transfer of ownership of goods in exchange for $)

Leases

Commercial Paper

Securities

certain contracts must always be in writing pursuant to the Statute of Frauds: Examples include: employment contracts that cannot be completed within a year; the sales or real property (land).)

from conduct, tradition, and customs: Ex. The delivery of grains, eastern Washington apple production, etc

 How a check must be filled out, pursuant to law. Other areas that fall within the ambit of “formal contracts” include letters of credit (an agreement to pay a sum of $ upon the receipt of a bill of lading).

Contracts Implied in Law). This is an equitable doctrine whereby a court may award monetary damages to a plaintiff for providing work or services to a defendant even though no actual contract existed.  The doctrine is intended to avoid “unjust enrichment” or “unjust detriment”.  

Parties to a contract

Every contract involves at least two parties: the offeror and the offeree.

OFFEROR (The person making the offer: “I’ll pay you $1,000 to paint my garage”.)

2. OFFEREE (The person receiving the offer).

BILATERAL CONTRACT: Both parties exchange legally binding promises to the other.

EX. I agree to help you find your dog for 4 hours, in exchange for $20.  If we 

agree to this, and I help you look for the dog, you owe me the money. Note that no act of performance is necessary to create a bilateral contract.

UNILATERAL CONTRACT: A contract is unilateral if the offeror’s offer can be accepted only by the performance of an act by the offeree.  There is no contact until the offeree performs the requested act.  It is, in essence, a “promise for an act”.  .  EX. “Ill give $20 to whoever finds my dog in the next 4 hours.”  I only have to pay if somebody finds my dog in the next 4 hours. (Unilateral contracts cannot be revoked once the offeree has undertaken “substantial performance” of the contract.  Ex:  If I promise you $1,000 if you “complete” the Boston marathon, I cannot revoke the offer when you are halfway through the race.)

Competent parties

Mutual Agreement

Genuine Assent

Reciprocal consideration

In form prescribed by law

Legal formation and execution

 One of six requirements for valid contract

-Each party must have the legal capacity to enter a contract.  

If an incompetent person enters into a contract, the contract is VOIDABLE at the discretion of that person, or that person’s guardian

-Minors, Mentally incompetent, Drunk/High

Mutual Agreement

-One of six requirements for valid contract

The parties must come to a mutual agreement by OFFER and ACCEPTANCE (they must

Agree to THE SAME THING – and come to a MEETING OF THE MINDS

-Consists of definite or reasonably certain offer, communicated to offeree, accepted by a positive of a mirror image of the offer

TIME.  Offers are generally open for a reasonable amount of time, but the offeror may indicate that the offer terminates at a set time.

EX. OPTION CONTRACTS

A separate “contract” to keep the “option” to buy, open for a set period

of time.  The death of either offeror or offeree will not terminate the

subject of the option during the time period.

OFFER MAY BE REVOKED ANY TIME PRIOR TO ACCEPTANCE. This is true even if the offeror initially promised to keep the offer open for a set period of time, and decides to revoke it prior to the time running.  Revocation may be accomplished by either telling the other party “the offer is revoked.”

REJECTION of the offer terminates the offer.  Ex.  If I offer you my car for $5,000, and you decline it, then change your mind a week later, and call me to say you will accept the deal, it’s too late.  There is no offer on the table at this point.

COUNTEROFFERS  terminate the initial offer.

DESTRUCTION of the item, through no fault of the offeror, terminates the offer. Ex. If the building, which is the subject of the sales contract, burns down, the offer to sell it ends.

DEATH of either offeror or offeree terminates the offer.

SUPERVENING ILLEGALITY will also terminate offer. Ex. If legislature bars interest rates of more than 18% (called “usury”) any outstanding “offers” to loan money for 21% would be terminated.

-Both parties have to voluntarily enter into the contract

-No undue influence (taking advantage of relationships), duress, fraud, mutual mistake (both parties wrong about a central assumption)

-One of six requirements for valid contract

that which induces both parties to contract.

Each party gives something, and each party receives something / or / 

OR

a contract is considered supported by legal value if 

(1) the promisee suffers a legal detriment, or 

(2) the promisor receives a legal benefit.

-One of six requirements for valid contract

-The contract must be LEGAL in its form and proposed execution.

Illegally formed contracts WILL NOT BE ENFORCED BY COURTS.

-Not contrary to a statute or public policy

-Exceptions include non-compete clauses and goodwill sales

IN FORM PRESCRIBED BY LAW

One of 6 requirements for valid contract

-Not all contracts need to be in writing, but Certain statues and laws require that certain types of contracts be in a specific form.  Unless the contract is in this form, the contract is not valid.  The major rule is the

STATUTE OF FRAUDS – Requires that contracts for SALE OF LAND; LEASE OF MORE THAN ONE YEAR; SALE OF TANGIBLE GOODS WORTH $500; CONTRACT THAT CANNOT BE PERFORMED W/IN ONE YEAR

(or a “valid contract”). This is a contract that meets all of the essential elements to establish a contract. 

A failed attempt to make a contract. A void agreement has no legal effect.  It is as if no contract had ever been created.  For example, a “contract” to commit a crime is void; neither party is obligated to perform.

VOIDABLE AGREEMENT

A voidable contract is one where at least one party has the option to avoid his or her contractual obligations.  If the contract is avoided, both sides are released from their obligations under the contract. 

Ex.  A minor, under 18, may void a contract even if the contract is otherwise valid, because minors are not allowed to contract. However, if the minor voids the contract, then the other side is also released from it, but the minor will have to pay restitution.

UNENFORCEABLE AGREEMENT

UNENFORCEABLE AGREEMENT – Occurs where there is some legal defense to the enforcement of the contract.  Ex. The statute of limitations may forbid enforcement: Most states allow merchants to sue to enforce a credit agreement only w/in 4 years.  If I don’t pay my credit card bill for 5 years, and VISA hasn’t sued me yet, they may not be able to, because too much time has passed.

refers to the relationship of those parties within a contract.

There may be “third party” beneficiaries to contracts – life insurance proceeds, for instance.

HOW DO YOU CLASSIFY OR DEFINE WHETHER A CONTRACT HAS BEEN PERFORMED

EXECUTED – After a contract has been performed, it is said to have been EXECUTED.

EXECUTORY CONTRACT – If something remains to be done by one of the parties, the

Contract is said to be an executory contract. 

DISCHARGING A CONTRACT

A contract is discharged when it is PERFORMED.  The rights and duties of each party to the

Contract are terminated upon discharge.

 discharged by ACCORD AND SATISFACTION

If a contract isn’t fulfilled as originally promised, the details may be changed and the

Contract still discharged by ACCORD AND SATISFACTION.  This means that there

Is another agreement between the parties, which satisfies both.

OTHER MEANS OF ENDING A CONTRACT INCLUDE

Subsequent illegality

Bankruptcy

Impossibility (personal service contract where one party dies)

Commercial impracticability: Finding solid granite where you need to pour the foundation for your new home

BREACH OF CONTRACT 

occurs when one party cannot/does not perform, in which case a 

LAWSUIT may be filed; the victim may then CANCEL the contract w/no liability.

Breach of contract is not a crime, and USUALLY not a tort.

COMPENSATION 

Defaulting party usually required to pay COMPENSATORY DAMAGES to

Put the other party in THE SAME POSITION THAT HE WOULD HAVE BEEN IN HAD THE CONTRACT BEEN PERFORMED.

2. Punitive damages if a TORT corrupted the contract..

ATTORNEY FEES generally not awarded for breach of contract, but the 

Contract itself may make provision for these to be paid.

4. LIQUIDATED DAMAGE CLAUSE.  Some contracts will contain a clause

that sets for the damages.  If I promise to build your home by Dec. 1, fine; if I go 

beyond that date, I owe you $75/day (for hotel expenses.)

EQUITABLE RELIEF. 

The Court may order a party to fulfill a contract, or

Deliver something unique that was the subject of a bargain (Picasso painting).

ADHESION CONTRACTS

“UNCONSCIONABLE CONTRACTS

Clauses which SHOCK THE CONSCIENCE WILL NOT BE ENFORCED.

EX.  Contract which requires 50% down, plus monthly payments at the highest interest rate

Allowed by law AND states that any single payment received 1 day past due allows the 

Seller to seize the property back, and the buyer to get nothing… UNCONSCIENABLE.

DURING SALE LAWS

These laws regulation TRUTH IN ADVERTISING, EXTENSION OF CREDIT & CONTRACT TERMS.

FEDERAL TRADE COMMISSION – Regulates Advertising

 3 broad ways to characterize employment

1. Principal – Agent

2. Employer – Employee

3. Contractor – Contractee

Why is it important to know what the relationship is between an employer/employee?

1. Liability (in case the “employee” does something wrong).

2. Employment Security.

3. Benefits.

Ordinary employees are AT WILL, meaning that they can quit, or be fired, at any time, for any legal reason.  (Employers cannot, for instance, fire an employee because of race or sex, but the employer may fire the employee if she/he doesn’t shower, or come to work too tired to do the job.)

THE PRINCIPAL – AGENT RELATIONSHIP

The principal hires the agent to work on his/her behalf.

The relationship is often contractual.

The agent must always work in the best interest of the principal; this is often referred to  as the “fiduciary obligation”.  The agent must place the principal’s interest above his own.

Example: Real Estate sales. 

Agents may bind the principal, provided that the agent is acting within his authority.

If an agent acts outside his authority, he is said to be acting “untra vires”, and cannot bind the principal (though 3^rd parties can sue the agent, not the principal).

The principal is liable for the actions (torts) of the agent if the agent was acting within the scope of employment AND in the course of employment.  This important doctrine is known as RESPONDEAT SUPERIOR.

 RESPONDEAT SUPERIOR

The principal is liable for the actions (torts) of the agent if the agent was acting within the scope of employment AND in the course of employment.  This important doctrine is known as RESPONDEAT SUPERIOR.

CONTRACTING EMPLOYER – INDEPENDENT CONTRACTOR

Independent contractors are not ordinary employees; they are engaged to accomplish a task/job.  The party who contracts for their services usually has little control over how the job is performed. (You hire somebody to do a specific job for you, e.g., paint your house, etc.  This is an independent contractor).

A person who employs an independent contractor is relieved from having to:

1. Keep time records;

2. Withhold taxes, and remit taxes to government.

3. Pay workers compensation insurance.

4. Fringe benefits, including medical, vacation, stock options.

Respondeat superior does not apply.

QUESTION: INDEPENDENT CONTRACTOR OR EMPLOYEE?

1. What control does employer have over details of work?

2. Does the employed person work in a distinct business?

3. Is the work usually supervised, or independent?

4. Does the employer supply tools or equipment?

5. How long is the period of employment?

6. What is the method of payment: hourly / by the job?

7. What degree of skill is required?

BASIC DUTIES OF EMPLOYEES

Must do work that is reasonable and customary for the job.

If under an employment contract, don’t have to do work outside the contract.

Must use reasonable skill in performing job…(can’t loaf or spend all your time Facebooking your girlfriend/boyfriend).

Can quit at any time (AT WILL), except if quitting breaches an employment contract.  Can be fired at any time, for any reason which is not illegal.

S.Ct.: Workers may refuse to do jobs that appear “unreasonably dangerous”.