Intentional Wrongs-2


Q. We got behind on our bills and a bill collector has been stopping by and
calling us day and night. The bill collector intimidates us, calls us names and
threatens to destroy our credit record. We are nervous wrecks. What may we do?

A. You may be able to make a case that the collector’s conduct is a tort, the
intentional infliction of mental distress. Courts recently have begun to recognize such
actions as extreme and outrageous conduct that someone else intentionally inflicts on you.
For you to recover damages, you must show more than hurt feelings. Without aggravating
(intensifying) circumstances, most courts have not allowed recovery if the collector was
merely profane, obscene, abusive, threatening or insulting. The collector would need to
have used outrageous and extreme high-pressure methods for a period of time. If the
collector touched you offensively without your consent, you might even want to consider
adding claims for two other intentional torts-assault and battery. You also might want to
consider a case against the collector’s employer. Just as employers are vicariously
(indirectly) liable for the negligent acts of an employee, employers can be liable for the
intentional acts of an employee. (See the “Consumer Credit” chapter for other
legal protection against debt collectors.) A court would need to determine whether the
collector’s particular conduct fell within the scope of his or her job.
Forms of Defamation
Defamation involves your reputation. If something is said or shown to a third person and
is understood by that person to lower your reputation, or keep others from associating with
you, you may have a defamation claim. Libel and slander are two types of defamation. To
recover for defamation, you have to prove that the information is false–truth is a defense.
Plaintiff’s consent to the publication of defamatory matter concerning him is a complete
defense as well.
Defamation generally is easier to prove if you are a private person. Courts treat public
officials and figures differently from private persons in deciding whether someone has
defamed them. Public figures must show that the speaker or publisher either knew the
words were false or was negligent in saying them. Courts have established certain
constitutional protections for statements about public officials. That is why they must
show that the speaker or publisher made the statement knowing it was false–or seriously
doubting its truth.


Q. What is the difference between slander and libel?

A. A defamation action for slander rests on an oral communication made to
another that is understood to lower your reputation or keep others from associating with
you. Libel generally is considered written or printed defamation that does the same thing.
Radio and television broadcasts of defamatory material today are nearly universally
considered libel.

Q. My late grandfather, who owned a textile factory, was called “unfair to
labor” in a recent book about the industry. Is that libelous?

A. While it can be libelous to write that someone is unfair to labor–or is a crook, a
drunk, or an anarchist–no defamation action can be brought for someone who is dead. If
your family still owns the factory and the same accusation made against your grandfather
was made against one of you, a defamatory action could be brought.

Q. I have a tax-return preparation business, and a neighbor recently told a
potential client that I did not know a thing about tax law. Isn’t that slander?

A. You might have a case. If someone says something that affects you in your
business, trade, or profession, you can recover in a slander action even without showing
actual harm to your reputation or other damages. You can do the same in three other
situations–if someone says that you committed a crime, that you have a loathsome
disease, or that a specific female is unchaste (impure).
Of course, you can recover in other slander cases, but in those you must show that
you were actually damaged.


Q. Are there defenses to defamation?

A. There are several defenses that will defeat a defamation claim. As mentioned
above, consent is one; truth is another. And certain persons and proceedings (such as a
judge in his or her courtroom, witnesses testifying about a relevant issue in a case, and
certain communications by legislators) are said to be privileged. They are protected from
defamation claims.

Intentional Wrongs-1


Q. What is the tort of assault?

A. An assault is a reasonable apprehension (expectation) of some harm that may
come to you. Unlike a battery, you must know that an assault is occurring at the time it
takes place. A court will look at what happened. A great deal will depend on the
reasonableness of your own feelings when threatened. The court will consider whether the
closeness of the physical threat should have subjectively upset, frightened, or humiliated
you. Words alone usually are not enough to bring a case for assault.


Q. My neighbor fired his shotgun to scare a solicitor whom he did not want
coming to his door. The bullet grazed a passerby. Will my neighbor be liable?

A. Under a legal doctrine known as transferred intent, your neighbor could be
liable for a battery to the passerby. This is true even though the passerby was an
unexpected victim whom your neighbor did not intend to harm. The solicitor also is likely
to win an assault case against your neighbor. The firing of the gun placed the solicitor in
reasonable apprehension of a battery, which is the legal definition of an assault.


Q. A security guard in a store suspected me of shoplifting and detained me. I
have heard about something called false imprisonment. Do I have an action for that?

A. If the security guard was acting in good faith, most courts will allow the guard
to detain you briefly on the store premises. A number of states by law have given
shopkeepers a limited privilege to stop suspected shoplifters for a reasonable amount of
time to investigate. Nonetheless, you may be able to recover damages for false
imprisonment. Suppose the security guard genuinely restrained you against your will,
intending to confine you. Damages for such an action generally include compensation for
loss of time and any inconvenience, physical discomfort or injuries. If the guard acted
maliciously, you also may be able to receive punitive damages.


Q. Someone broke into my house in the middle of the night and attacked me.
It was dark and I could not see the intruder well. I chased and knocked down a
teenager running down the street because I thought he was the culprit, but I was
wrong. Will I be liable to him?

A. If you reasonably believe someone broke into your house and attacked you, you
have the right to defend yourself by injuring him, even though it turns out that the one you
injured is not the same person who broke into your house. If you believe someone is about
to inflict bodily harm, you may use non-deadly force to defend yourself. In this particular
case, if the teenager already was running down the street, courts may say that there no
longer was danger to you or your property. Then, outrageous as it sounds, you might well
be liable. In situations where you believe an intruder is about to inflict death or serious
bodily harm, courts allow you to use deadly force. The question then becomes whether the
force you used was reasonable under the circumstances.


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Product Liability-2

Breast Implant Litigation

There have been literally thousands of lawsuits filed by women who have undergone
breast implantation and now allege that the implants contributed to a wide range of health
problems, ranging from cancer and autoimmune diseases to joint pains and interference
with cancer detection. In addition to saying that both silicone breast implants and other
artificial implants were responsible for adverse-health effects in them, women have
alleged that the implants also caused miscarriage and harmful effects in their children,
some of them because they were breastfed. The suits generally say that the manufacturers
were negligent and that they knew the product was defective. Because this is a new area of
tort law, it is important to contact a personal injury lawyer if you think you may have a


Q. I was injured because of a brake defect in a used car I bought. May I
recover from the dealer?

A. At least one used car dealer has been subject to a negligence action slots online for failing to
inspect or discover such defects. But courts are split on whether dealers in used goods
should be subject to strict liability. Holding them strictly liable appears to be a minority


What You Should Do If You Are Injured By a Product

Keep the evidence. If a heating fixture ruptures and injures someone in your family, keep
as may pieces of the equipment as you can find and disturb the site as little as you can.
Make note of the name of the manufacturer, model and serial number. Keep any
packaging or instructions. Keep any receipts showing when and where the product was
purchased. Take pictures of the site and of the injury. Make a record of exactly when the
incident occurred and under what circumstances. Be sure you have accurate names and
addresses for all doctors and hospitals treating the injured victim.

Product Liability-1

Q. I suffered a severe allergic reaction from some cosmetics I used and needed
medical treatment. May I recover from the manufacturer?

A. Perhaps. Did the manufacturer warn you that the cosmetic could cause such a
reaction? Some courts normally will not hold the manufacturer liable for failing to warn
you of the risk of an adverse reaction unless you can prove that an ingredient in the
product would give a number of people an adverse reaction. You also must prove that the
manufacturer knew or should have known this and that your reaction was because you
were in that group of sensitive people, and not because you are hypersensitive. In addition,
courts will determine whether you used the product according to the directions provided
with it. Misuse is a defense recognized in strict liability. If the court does not find strict
liability, you still might recover on a negligence claim.


Q. My little boy contracted Reye’s Syndrome after I gave him children’s
aspirin for a respiratory ailment. Can we recover?

A. Because of the known danger of contracting Reye’s Syndrome when a child
takes aspirin, children’s aspirin bottles contain warnings. But in one California case, an
appellate court said a jury should decide whether a manufacturer was negligent in failing
to supply a Spanish-language warning of the hazards associated with aspirins. The child’s
mother could only speak Spanish and was unable to read the warning in English on the
aspirin bottle. The case is now before the California Supreme Court.


Q. I got hepatitis from a blood transfusion. Is someone liable?

A. In many states, laws protect suppliers against strict liability when people who
receive blood transfusions contract an illness from contaminated blood. However, you
may recover if you can show negligence by the supplier.



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Product Liability

Product Liability

Strict product liability, now the law in nearly every state, allows an action against a
manufacturer that sells any defective product resulting in injury to a buyer or anyone who
uses it. If you are injured by a defective product, you do not need to prove that a
manufacturer was negligent, but only that the product was defective. A strict liability
action can be brought against the parties that designed, manufactured, sold or furnished
the product. It is possible for plaintiffs to recover punitive damages in strict product
liability actions, though such cases are relatively rare and usually deal with outrageous
conduct. Punitive damages are money awards, which go beyond an award for other
damages. Punitive damages are intended to set an example and punish wrongdoers for
intentional and outrageous conduct with evil intent. Liability actions against manufacturers for products that injure consumers also may be based on negligence, a contractual breach of warranty or, sometimes, a manufacturer’s intentional wrongful conduct.


Q. Our brand-new power mower backfired and injured me. From whom may
I recover damages?

A. This is a typical product liability case. You may be able to prove that the
manufacturer of the lawn mower made a defective product. Most courts today hold
companies responsible for a defective product strictly liable to consumers and users for
injuries caused by the defect. The product may have had a design flaw or a manufacturing
defect. Another possibility may be that the producer or assembler failed to provide
adequate warning of a risk or hazard or failed to provide adequate directions for a
product’s use.


Q. A disclaimer that came with the lawn mower said the manufacturer did
not warrant it in any way. Will that defeat our claim?

A. While limited warranties are sometimes enforced by courts, full disclaimers
often are not. Courts find such warranties invalid because you, as the consumer, are not in
an equal bargaining position. They also rule that such clauses are unconscionable (grossly
unfair) and contrary to public policy. (See the discussion of “contracts of adhesion” and
unconscionability in the chapter “Contracts and Consumer Law.”) Most
courts limit the effect of limited warranties to repairs. A limited warranty is not a waiver
of liability for injuries.


Q. A toy my grandson was playing with came apart, and he put one of the
pieces in his mouth and started choking. Do we have any redress against the toy

A. The manufacturers of toys are closely monitored by the federal Consumer
Product Safety Commission (CPSC), but lawsuits against them are abundant as well. Like
others that put products into commerce, toy manufacturers have a duty to consider any
foreseeable misuse of their products. As in any strict liability action, several questions
would need to be answered to determine the manufacturer’s culpability. Did it have a duty
to warn of the danger of the toy falling apart? If so, what was the likelihood that it would
break into small parts that could be dangerous to a small child? Did it make a difference
how the child was playing with the toy? Because toy manufacturers outside of the U.S.
can be difficult to sue, you also might want to consider suing other parties in the toy’s
chain of distribution–the toy store, for example, or perhaps a fast-food chain that
distributed the toy as part of a promotion. Such retailers also can be liable for injuries.


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Strict Liability-1

Visiting a Zoo

Zoos go to great extremes to protect visitors from the risks posed by their animals.
Generally they restrain or confine the animals. For that reason, courts usually do not
impose strict liability when a visitor to a zoo gets injured. Instead, the visitor must show
that the zoo was somehow negligent in how it kept the animal.


Q. What if one of my animals escapes from our fenced-in yard and goes onto
our neighbor”s property?

A. In most jurisdictions, keepers of all animals, including domesticated ones, are
strictly liable for damages resulting from the trespass of their animals on another person”s
property. But courts make exceptions for the owners of dogs and cats, saying they are not
strictly liable for trespasses, absent negligence, except where strict liability is imposed by
statute or ordinance.


Q. Am I automatically liable if my dog, normally a friendly and playful pet,
turns on my neighbor and bites her?

A. It may depend on casino poland where you live. A number of jurisdictions have enacted dog
bite statutes, which hold owners strictly liable for injuries inflicted by their animals. If
there is no such law in your town, you still can be found liable under a common law
negligence claim if you knew the animal was likely to cause that kind of injury and failed
to exercise due care in controlling the pet. If, on the other hand, you did not know or have
any reason to suspect that your dog had such a dangerous trait, courts have said owners
generally are not liable. It is important that you contact your local animal control
department to find out about any regulations in your area.


Q. Our neighbors have a vicious watchdog. We are scared to death that the
dog will bite one of our children, who often wander into the neighbor”s yard. What
can we do?

A. The situation you pose is a common one and, as in the example above, is
precisely the reason a number of municipalities regulate dog ownership, especially of
vicious dogs, through ordinances. A great deal would depend on the ordinance where you
live. Unless your neighbor posts adequate warnings, he may be strictly liable for injuries
caused by a vicious watchdog. (And there is a question of whether written warnings are
sufficient if a child is injured.) Even if the dog never bit before, such liability is imposed
because of the mere fact that the dog is known to be vicious–or has certain dangerous

Medical Malpractice-2

Should You Stop and Help Someone in an Emergency?

Generally you do not have a duty to stop and help someone in an emergency. The law says
that if you did not cause the problem and if you and the victim have no special relationship
you need not try to rescue a person. But states have passed so-called Good Samaritan laws
that excuse doctors–and sometimes other helpers–from liability for negligence for
coming to the aid of someone in an emergency. In some states, if you injure someone
while driving, you must help that injured person, regardless of who was at fault. Some
courts look at the circumstances of the rescue. They say that if you know someone is in
extreme danger that could be avoided with little inconvenience on your part, you must
provide reasonable care to the victim. Of course, you always are free to go voluntarily to
the aid of someone in trouble. But if you abandon your rescue efforts after starting them,
you may be liable if you leave a victim in worse condition than you found him or her.


Q. I signed a consent form before my doctor performed surgery. What did it
really mean?

A. It is common practice in hospitals for patients to sign a form giving the doctor
their consent, or approval, to perform surgery. In the form, the patient usually consents to
the specific surgery as well as to any other procedures that might become necessary.
Before you sign it, your doctor should give you a full description of the surgery and the
risks involved, and the ramifications of not getting such treatment. If you can prove that
your physician misrepresented or failed to adequately inform you of the risks and benefits
before surgery, your consent may be invalid. The only time the law excuses doctors from
providing such information is in emergencies or when it would be harmful to a patient.
But even if your doctor should have secured your consent and did not, you still may not
automatically recover. You may still have to prove that, if adequately informed, a
reasonable person would not have consented to the surgery.


Q. If the consent form is considered valid, can I recover any damages in a
malpractice action against my doctor?

A. Yes, you still may be able to recover damages. A consent form does not release
from liability a physician who did not perform the operation following established
procedures or who was otherwise negligent. You may also have a claim that the surgery
the physician performed went beyond the consent you gave. Then the doctor might even
be liable for battery.


Q. What if I’m just not satisfied with the results of my surgery? Do I have a
malpractice case?

A. In general, there are no guarantees of medical results. You would have to show
an injury or damages that resulted from the doctor’s deviation from the appropriate
standard of care for your condition.


Q. I got pregnant even though my husband had a vasectomy. Can we recover

A. Yes, you may be able to win a case. A number of negligence cases have been
permitted against physicians for performing unsuccessful vasectomies or other methods of
sterilization that resulted in unwanted children. Courts increasingly allow a suit to be filed
by the parents of a child born as a result of wrongful conception or wrongful pregnancy.
Damages generally are limited to those associated with the pregnancy and birth and do not
extend to support of the child.


Q. I don’t think it was necessary for me to have a cesarean section when Idelivered my daughter. Is there anything I can do about it?

A. Although most malpractice cases involving cesarean sections are brought
against doctors who did not perform them when they should have, with resulting injuries
to the mother or child, it is possible for a woman to win damages against her doctors for
unnecessarily delivering her child by cesarean section. An expert would still be necessary
to state that in doing the cesarean section, the delivering doctor deviated from the
appropriate standard of care.


Q. My doctor prescribed a drug for treatment but failed to tell me it was part
of an experimental program. What can I do?

A. This is quite a rare circumstance, but your physician had a duty to tell you that
the drug was part of an experimental program. You had the right to refuse to participate in
it. You now may have grounds for an action against your doctor.


Q. May I recover medical and hospital bills from someone who caused an
injury to me even though my insurance company has paid the bill?

A. Yes. However, if you do recover payment from the person who injured you for
those bills, some states require you to reimburse your insurance company. In those states,
the law does not allow you to get a double recovery. Often the insurance policy contains a
subrogation clause that does not permit double recovery.


Q. My aunt discovered that a sponge left in her during an operation years ago
was the source of stomach trouble. May she still sue?

A. Like other personal injury cases, medical malpractice lawsuits are subject to
specific statutes of limitations (discussed earlier in this chapter). Until
recently, your aunt’s suit may have been thrown out of court. In many statutes, time limits
on filing began when the injury occurred–on the day of the operation. To alleviate such a
harsh–and final–result, many states today have altered their laws, and the clock for filing
a case does not begin to toll until people discover that they have suffered an injury, or
should have discovered it. Even with the discovery rule, there are time limits, known as
statutes of repose, which limit the time within which to file suit before or after discovery
of the injury.


Q. My father’s job exposed him to asbestos. Now he has lung disease. Is it too
late to file a claim?

A. It may not be too late. Many people who suffered injuries from toxic substances
such as asbestos did not know at the time of exposure that the compounds were harmful.
As a result, some states have enacted laws allowing people to file lawsuits for a certain
amount of time from the date when the lung impairment or cancer begins, rather than from
the date of exposure. A lawyer can tell you whether your father still has time within the
statutes of limitations applicable in your state. In general, the area of workplace illnesses
is covered by workers’ compensation (discussed earlier in this chapter and in
the “Law and the Workplace” chapter).


Q. What about malpractice actions against professionals such as lawyers? I
recently hired a lawyer seemed inexperienced and was unhappy with the outcome of
the case.

A. Like doctors, lawyers and other professionals must possess and apply the
knowledge and the skills of other reasonably well qualified professionals. Not only must
they exercise reasonable care in handling your case, they also must possess a minimum
degree of special knowledge and ability. That means that they will be liable to you if their
skills do not meet the accepted standard of practice. You must also prove that the case
your lawyer mishandled was likely to succeed. Lawyer malpractice usually results in
property damage only. You cannot recover for the emotional distress of hiring a negligent
lawyer. In your case, you may have a malpractice action against the attorney if he or she
was negligent in representing you. You’ll have to show more than dissatisfaction with the
outcome of the case. Did he or she fail to meet a deadline for filing for a court proceeding?
Were all the crucial legal elements of the case fully explored? If you are unsure about a
basis for a malpractice case, check with the state agency that regulates lawyers in your
state. Your state bar association will be able to tell you the name of the agency is.

Injuries on Others’ Property-4

If You Get Injured at Work

Workers’ compensation laws, currently in place in all fifty states and the District of
Columbia, cover most workers injured on the job. Under these laws, employers
compensate you for your injuries, including medical expenses, lost wages (temporary
disability) and permanent or temporary disability, regardless of who was at fault. All you
have to do is file notice with your employer and a claim with the state’s worker’s
compensation commission, or board. (See the “Law and the Workplace”
chapter for more details.)
Legislatures created the laws because they thought that liability for workplace accidents
should be placed on the one most able to bear the loss–the employer. The statutes fall
under strict liability principles, discussed below, so no employer or employee negligence
or fault need be shown. In fact, the statutes prohibit employees from filing tort claims
against their employers for conditions covered by the law. Instead, an employee gets paid
according to a fixed schedule of benefits, regardless of who was at fault.
It is extremely rare that an employee is not covered by such a law, but if you are not, you
may be able to recover from your employer on a negligence claim. To do so, you must
show that your employer failed to exercise reasonable care in providing you with safe
working conditions or that your employer failed to warn you of unsafe conditions that you
were unlikely to discover. Other possible suits against your employer might include an
action alleging an intentional injury or an intentional disregard of your safety. Or your
spouse might sue for loss of consortium. (See the “Family Law” chapter for
more details.)


Q. I think my colleagues’ smoking at work is making me sick. Since I’m a
non-smoker, do I have any recourse?

A. In a growing area of interest, a recent Environmental Protection Agency reporthas linked “passive” tobacco smoke to lung cancer and other ailments. Some non-smokers
have filed workers’ compensation claims saying they became ill in a smoke-filled
workplace. Damage suits also have been filed against the employers, for allowing
smoking, and directly against tobacco companies. The non-smoker would have to show
that the presence of smoke caused his or her illness.

Injuries on Others’ Property-3

Liability at Sporting Events

Suppose you went to a baseball game, and a ball that a player hit into the stands injured
you. What can you do? Spectators at a baseball game know they may be injured by a
flying ball. That is why courts generally say that spectators assume the risk of being hurt
by a ball. The same usually holds true if a golf ball hits you while you are watching a golf
match. Likewise, if a wheel from a car in an automobile race flies into the stands, you
assume the risk of getting hurt. The legal term for this doctrine is assumption of the risk. It
means that you agreed to face a known danger. But if there is a hole in a screen intended
to protect spectators at the baseball park, you then probably could argue that it was
negligence not to have it repaired.


Q. My daughter, who plays on the local park’s basketball team, brought home
a note asking us to sign a form saying we won’t hold the park district responsible for
injuries. What is that?

A. You are talking about a so-called waiver of liability that is intended to
contractually release the organization of any liability should an injury occur. Your
signature doesn’t necessarily mean that you’ve signed away all of your rights. If you must
either sign such a form or deprive your child of the chance to participate in the activity, a
court may hold that your waiver is not really voluntary and thus not valid. And even in
those states that recognize waivers, the waiver might not mean that you are giving up your
right to sue entirely. If an injury results because of intentional or reckless behavior, you
probably will be able to seek damages.


Q. I was staying at a motel when there was a fire, but there was no water
sprinkler system and no escape route posted in the room. Doesn’t the hotel have to
have those safety precautions?

A. The motel management probably should have exercised reasonable care about
the fire alarms and fire escapes. And they should have helped you escape. As in the case
of the common carrier above, the law generally says that innkeepers, who have a special
relationship with their guests, have a higher duty of care.


Q. Someone attacked my daughter on the campus of the college she attends.
May she hold the school responsible for this attack?

A. Your daughter might have a negligence action against the college. In a
developing area of law known as premises liability, courts have found such entities as
universities, motels, convenience stores and shopping malls liable for attacks because they
did not exercise reasonable care in preventing victims from being harmed by a third
person. In a case that drew headlines in the 1970s, for example, a court awarded $2.5
million to singer Connie Francis for an attack at a Howard Johnson’s Motor Lodge. The
court found that the motel did not take proper and reasonable steps to prevent the attack.
In general, a hotel must provide adequate security and not permit people to loiter. In your
daughter’s case, a court would look at the facts and ask whether similar attacks had
occurred previously in the same area. If so, the court would ask what security precautions
the college had taken.


Q. I was attacked after withdrawing money from an automated teller machine
(ATM). What can I do?

A. Under the tort theory of premise liability, discussed above, customers have sued
banks for failing to protect them from assault at ATMs. While there used to be no
common law duty to provide security against such crimes, a duty has been recognized in
recent years. In such a case, a judge or jury would determine if there were past
occurrences and if a likelihood of a crime was foreseeable. If so, they may hold that the
bank had a duty to protect people using that machine and that the bank was liable.


Q. Is there anything else victims may do?

A. Yes. Most states have laws compensating victims of violent crimes for lost
wages, counseling, and medical expenses. There also are several victim assistance
programs. Check with your local prosecutor’s office (possibly called the office of the
state’s attorney or district attorney).


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Injuries on Others’ Property-2

Landlord Liability

In recent years many states have required landlords to maintain residential property in
“habitable” condition by imposing a warranty of habitability. A violation of that warranty
could result in your suing the landlord for failing to maintain the property and thus
violating the warranty. But negligence claims are also possible. If guests are injured when
a back porch that is part of a unit collapses during a party, the landlord probably would be
held liable, especially if he or she had been warned that the porch was sagging or was
infested with termites but had not repaired it. Of course, the landlord may be able to argue
that the porch collapsed because there were too many people on it.
Landlords also must maintain any “common area” of the building–including stairs,
corridors and walkways–for both tenants and guests of the building. If a guest is injured
when she trips over some loose carpeting in a corridor, for example, the landlord generally
would be liable.

If you are a landlord, there are ways to reduce your chances of liability. Consider having
your insurance company inspect the premises and then promptly repair any safety
problems the inspector uncovers. If you inspect the premises yourself, look for unsafe
wiring, loose railings, poor lighting or similar flaws. You might also write tenants a letter
each year asking them to point out hazards or needed repairs they may have noticed. If a
tenant who lives in the building every day fails to notice a hazard, it is hard to argue that
the landlord should know about it. But that still may not protect you in a suit by someone
who is injured while visiting.


Q. My son received an injury during basic training in the U.S. Army. May he
recover damages from the federal government?

A. No. People in the armed services who receive injuries during the course of their
duties are not permitted to recover for their injuries. But the Federal Tort Claims Act of
1946 waives U.S. immunity for a “negligent or wrongful act or omission.” So it would
permit, under certain conditions, recovery in personal injury lawsuits against the United
States government for torts committed by its employees. These actions are brought in the
U.S. Claims Court (see the “How the Legal System Works” chapter). Some
states have their own courts of claim. In other states, claims actions can be brought
through other courts.


Q. My son and his friends went snow-mobiling on a nearby farm. When the
vehicle ran into a fence, one of them got hurt. The farmer now says he is not liable. Is
that true?

A. If landowners know that others are using their land for snowmobiling, most
states say they must warn snowmobiles about hidden dangerous conditions or remove
them. Was the fence visible? Did the farmer recently build it? A few states, such as
Michigan, have laws specifically dealing with liability when someone uses property for
recreational purposes without permission. In those states, the farmer probably would not
be liable if he did not authorize the boys to be on his land and did not act recklessly. You
might want to ask a lawyer about your state’s law.


Q. I got injured on a ski lift. May I recover against the ski resort?

A. Possibly. Can you prove that the resort was negligent? Remember that some
states have laws limiting the liability of resorts, saying there are certain risks that a person
assumes when skiing. However, some states hold that ski lifts are common carriers, like
buses. They have higher duties than others, so in one of these states you might have an
excellent case.


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