Personal injury law is based in the law of "torts".
A tort is a harmful act or failure to act for which the law
provides a remedy.
There are many different kinds of torts. Physically injuring
someone is a tort; so is damaging a person's property or character,
or wrongly denying someone his or her liberty.
The basic principle of tort law is that injured persons should
be compensated by those responsible for their injuries. Thus,
a victim of a tort has the right to sue the "tortfeasor"
(the person committing the tort) for damages.
It is important to understand the difference between torts
and crimes. A tort is a civil wrong against an individual
that exposes the tortfeasor to liability to an individual (or
individuals). A crime is a wrong against society or the
state and is punishable by incarceration or a fine.
Some acts, however, can be both a tort and a crime. For example,
someone who uses force to cause bodily injury commits a tort
known as battery and is liability to the victim for damages.
Battery also is a misdemeanor crime under California law, punishable
by up to six months in prison and/or a fine of up to $2000.
Thus, a person committing a battery could be prosecuted and
convicted of the crime of battery, and also face a civil lawsuit
brought by the victim.
Thre are three types of torts:
- intentional torts,
- negligent torts, and
- torts based on strict liability.
Each of these torts is unique and has its own requirements
for recovery, but may overlap in application. For example, if
a person is injured by a product, he or she may sue the manufacturer
under a theory of negligence or strict liability.
Intentional Torts: An intentional tort is
a wrong based on an intentional action, as contrasted with carelessness
or negligence. Battery is an example of an intention tort--the
defendant intended to hit the plaintiff. Other examples of intentional
torts include assault (threatening someone with physical violence),
false imprisonment, invasion of privacy, and trespass. Defamation
also is usually considered an intentional tort, because the
defendant intentionally prints or speaks the defamatory statement.
To proceed in a lawsuit for damages caused by an intentional
tort, a plaintiff must show that the defendant acted willfully.
To act willfully means to deliberately, intentionally, or wantonly
perform an act with actual or constructive knowledge that injury
is a likely result, coupled with conscious failure to act to
avoid the injury. The defendant's willful act must be the cause
of the plaintiff's injury.
Negligent Torts: Negligence has to do with
how careful a person was when he or she caused an injury, and
how careful, according to the law, he or she should have been.
There are four requirements to proving negligence. A plaintiff
must show (1) the defendant had a duty to conform to a certain
standard of conduct to protect the plaintiff from unreasonable
risk, (2) the defendant breached that duty, (3) the defendant's
breach was the proximate cause of the plaintiff's injury, and
(4) the plaintiff suffered damages
In some personal injury cases, it turns out the plaintiff was
partly at fault in causing his or her injury. In 1975, California
adopted the doctrine of "comparative negligence",
which allows a jury to apportion liability in a lawsuit. Comparative
negligence permits a jury to compare the negligence of the plaintiff
with the negligence of the defendant and decide damages accordingly.
If the jury finds the plaintiff ten percent negligent in a car
accident, and the defendant 90 percent negligent, the defendant
has to pay only 90 percent of the damage award. Likewise, if
the jury finds the plaintiff 90 percent negligent in the accident,
and the defendant ten percent negligent, the defendant has to
pay only ten percent of any damage award.
Strict Liability: Under the theory of strict
liability, the plaintiff contends that the defendant is liable
regardless of fault. The issue of how careful a defendant was
or should have been is irrelevant. Even if a defendant's actions
were entirely reasonable, strict liability imposes liability
on the defendant if he or she caused the plaintiff's injury.
Historically, strict liability was only used in cases in which
a wild animal or an ultrahazardous activity caused an injury.
For example, people who demolished buildings, dusted crops,
or manufactured explosives were automatically liable for injuries
caused by their activities. In 1963, strict liability was first
applied in a defective product context. Since then, it has become
the principal theory of recovery in products liability cases.
One reason for applying strict liability to defective product
cases is that manufacturers (often large corporations) are in
a better position to incur the costs of the injuries caused
by their products than the individuals who are injured. Moreover,
by requiring manufacturers to pay damages for injuries caused
by their products, regardless of fault, the law encourages manufacturers
to produce safe and dependable products.
The principal purpose of products liability litigation is to
compensate persons injured by defective products. But products
liability litigation also serves an important public policy
interest. It serves as a means for society to collectively decide
how safe manufacturers ought to make products that consumers
use every day. The application of strict liability in products
liability cases demonstrates society's changing attitudes toward
To prove a case based on strict liability, three basic elements
must be established. A plaintiff must show (1) the product was
defective, (2) the defect was the proximate cause of the plaintiff's
injury, and (3) the plaintiff suffered damages.
Burden Of Proof: A plaintiff in a civil lawsuit
has to prove his or her case "by a preponderance of the
evidence." In other words, the plaintiff must show that
a majority of the evidence establishes that the defendant is
liable. This is different from the burden of proof in a criminal
case. In a criminal case, the prosecution must prove the defendant's
guilt "beyond a reasonable doubt"--a much higher standard.
When a tort is also a crime, the results from the civil and
criminal cases do not have to be consistent; in fact, the outcomes
frequently are contradictory. Because the criminal burden of
proof is higher, a defendant may be acquitted of committing
a crime, but liable in a tort action.
Affirmative Defenses: A defendant who asserts
an affirmative defense does not deny the evidence against him
or her, but argues that there is some other reason that he or
she should not be liable. In the tort context, an example of
an affirmative defense is comparative negligence. Assumption
of risk also is an affirmative defense. The doctrine of assumption
of risk states that, because the plaintiff was aware of the
potential for injury and proceeded nonetheless, the defendant's
liability should be reduced, if not erased altogether. Because
California follows the doctrine of "pure comparative negligence",
which allows a plaintiff to recover damages even if his or her
share of fault is greater than 50 percent, the defense of assumption
of risk has very limited application.
Vicarious Liability: Vicarious liability is
a legal principle under which one person is held liable for
the tortious act of another, even though the first person was
not involved in the act, did nothing to encourage the act, and
even may have attempted to prevent it.
The most common form of vicarious liability occurs in the area
of employment. An employer is liable for any tortious act committed
by an employee acting within the scope of employment. Another
application of vicarious liability is to bar owners or others
who provide alcohol to a person who then commits a tort. Under
California law, anyone who sells, furnishes, or gives alcohol
(other than in a social setting) to an obviously intoxicated
minor may be liable for damages caused by that minor as a result
Joint And Several Liability: In cases in which
two or more defendants were found responsible for a plaintiff's
injury, the law traditionally made the defendants jointly and
severally liable for damages. In other words, a plaintiff had
the right to collect the damage award from any defendant individually
or from the defendants as a whole, depending on the plaintiff's
The California legislature has decided that the doctrine of
joint and several liability resulted in inequity and injustice
to defendants who bore only slight responsibility for an injury
but had to pay the entire damage award. (These defendants sometimes
are referred to as having "deep pockets.") Thus, liability
for noneconomic damages is several only in California, and not
joint. That is, while defendants may be jointly and severally
liable for economic damages, each defendant is only liable for
the amount of noneconomic damages directly in proportion to
that defendant's percentage of fault. Noneconomic damages compensate
for subjective, non-monetary losses such as pain, suffering,
inconvenience, emotional distress, loss of consortium, and injury
Statute Of Limitations: There are limits on
the time period in which a lawsuit can be filed. If a person
fails to file a lawsuit within the time period prescribed by
the statute of limitations, the person loses the right to file
that lawsuit. As of January 1, 2003, the statute of limitations
for most personal injury claims was extended from 1 to 2 years.
It is unknown whether claims existing before the new law came
into effect have their periods extended. To be cautious, assume
any personal claim arising before January 1, 2003, has a 1-year
statute, and any claim arising as of January 1, 2003, has a
Every case begins with the filing and service of a Summons and
Complaint. The Complaint will contain one or more "causes
of action" such as "Breach of Contract" or "Fraud".
Service Of Complaint
After the Summons and Complaint have been filed with the court,
they must be properly served on the defendant(s). If the defendant(s)
will accept service, he/she may sign an Acknowledgment of Service."
Otherwise the documents will have to be formally served.
Response To Complaint
The Defendant(s) have 30 days from the date of service of the
Summons and Complaint to serve on the Plaintiff(s) either an
Answer to the Complaint or a pleading challenging the sufficiency
of the the Complaint. Responses challenging the sufficiency
of the Complaint include a motion called a "Demurrer"
and a "Motion To Strike"
Hearing Of Challenges To Sufficiency
Of Complaint (If Applicable)
If the defendant(s) decide to file a demurrer or motion to strike,
these motions must be heard and ruled upon before the matter
may proceed. This can take up to 2 months. If such motion is
sustained and the court grants leave to amend the Complaint,
a new complaint must be drafted and served and the process starts
over. Sometimes a second demurrer or motion will be filed causing
Once the Complaint and Answer have been filed both parties commence
"discovery" procedures by which the evidence necessary
to prosecute both sides of the case. Depending on the nature
and complexity of the case, one or more of the following discovery
devices may be used by the parties:
- Interrogatories: Written questions which must be answered under oath.
- Request For Production Of
Documents: Demands for production of documents
by the parties involved.
- Requests For Admission: Requiring the parties to say which allegations they affirm
and which they deny.
- Deposition: The
parties may be required to appear in the opposing attorney's
office to answer questions under oath in front of a court
reporter. Depositions can also be taken from 3rd parties.
- Subpoena Documents From
Third Party: Documents may be subpoenad from 3rd
parties such as banks and employers.
Discovery Motions (If
If a party fails or refuses to comply with discovery requests,
it may be necessary for the party propounding the discovery
to make a motion in court to compel responses. If the court
grants the motion, further responses will be made. If those
responses are still inadequate, another motion may be made and
the court can sanction (fine) the resisting party. In extreme
cases the court can even terminate the action in favor of the
Throughout the case the court will set a series of Case Management
Conferences to be attended by attorneys for all parties. These
hearings are designed to determine whether the case is ready
for trial. When the court feels that a case is ready for trial,
it will set the date for trial and make orders concerning completion
of discovery and final preparation for trial.
Settlement negotiations may proceed throughout the trial. Often
the court will require the parties to try a mediation of the
issues or will set a "Mandatory Settlement Conference"
(MSC) before the trial date. Settlement negotiations general
become more intense as the trial date approaches.
The vast majority of cases settle before trial. However if the
parties cannot settle the case, the only way to resolve the
issues is by way of trial.