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
traits.

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
damages?

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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Injuries at Your Home and on Your Property 1

 

Q. What if a salesperson, or another passerby, falls on an icy sidewalk in front
of my house?

A. In some places, ordinances say that landowners whose property is next to a
public sidewalk are responsible for keeping the sidewalk in repair and clear of ice and
snow. But elsewhere owners have no duty to remove natural accumulations of ice and
snow that have collected on adjacent public sidewalks. In fact, they may be liable for
negligence if they undertake such a job and do not make the sidewalks safe. If landowners
fail to take reasonable action to correct a dangerous condition on the sidewalk, other than
a natural accumulation of ice or snow, that they knew or should have known about,
however, they can be held liable.

Q. Would I be liable if a trespasser gets injured on my property?

A. You generally are not liable for any injury to a trespasser on your property.
Suppose, however, that you know certain people continually trespass on your property,
perhaps using it as a shortcut. Then a court might find that you should have notified these
regular trespassers about any hidden artificial conditions of which you were aware could
seriously injure them.

 

Q. A group of eight-year-old children has been playing in a vacant lot that I
own. Could I be liable if one of them gets injured?

A. Yes, the law generally places a greater burden on landowners when injuries
involve children. The reason is that children are too young to understand or appreciate
danger in certain situations. Under a legal theory known as the attractive nuisance
doctrine, owners who knew or should know about potentially dangerous artificial
conditions on their lot must warn children who are playing there, or must take reasonable
precautions to protect them. If, for example, there is machinery or other equipment on
your vacant lot that could present an unreasonable risk to children, you should remove it.
If you don’t, you could very well be liable to the children for any injuries they suffer, even
if they were trespassing. In some jurisdictions, the attractive nuisance doctrine is being
replaced by a duty of reasonable care under the circumstances.

 

Q. Our children’s friends often come to swim in our backyard pool, even
though we are not always able to be there. What if one of them gets hurt?

A. You are liable because you have a legal duty to protect children from possible
harm should they decide to play around a dangerous place on your property. You should
make sure an adult is present when children are swimming, though this will not
necessarily avoid liability. And warning the children that they should not swim without an
adult present may not be enough to avoid liability if one of them gets injured. Also check
with your state or city to find out its requirements for residential swimming pools. Under
them, you may have a legal duty to erect barriers or such other protective features as an
automatic pool cover, a tall fence with a good lock that you keep locked or an alarm on the
sliding glass door from your home to the pool.

 

Automobile Accidents-2

 

Q. I was in a car accident during my pregnancy and my baby was born with a
deformity as a result of injuries from the accident. Does my child have any legal
recourse?

A. Many states today will permit an action by a child for the consequences of such
prenatal (before birth) injuries. (In states with no-fault automobile insurance, your right to
sue often is limited.) Most courts also will allow a wrongful death action if the baby dies
from the injuries after birth.

 

Q. Someone recently stole my car and then wrecked it, injuring passengers in
another vehicle. Now one of those passengers is trying to sue me. Can they win? Am I
responsible?

A. Probably not, since the thief did not have your permission to use the car,
although a lot would depend on the law in your state. Suppose you left your car unlocked
with the keys in it, making it easy for the thief to steal. This could be negligence. Even
then, most courts generally will not hold you liable if the thief later injures someone by
negligent driving. That is because courts hold that you could not foresee that your actions
ultimately would result in such injuries. In a few cases, though, courts have looked at
whether your actions caused an unreasonable risk of harm to someone else. If you left
your car parked with the engine running, for example, you might be liable if the car thief
then injures children playing nearby. In a no-fault state, on the other hand, it might be
difficult–if not impossible–for the passenger to sue you.

 

 

Q. I was hit by a car driven by a drunk driver who was going home after a
night out. What can I do, in addition to suing the drunk driver?

A. If you live in a state that has a Dram Shop Act, you may be able to recover from
the tavern owner where the drunk driver was served the liquor. Such acts usually come
into play when intoxicated people served by the bar later injure somebody while driving.
Some of those laws also make tavern owners liable when drunk customers injure others on
or off the premises. But some courts say a tavern owner will not be liable unless the sale
of the liquor itself was illegal.

 

Q. My wife was injured when her car was hit by one being driven by some
kids who had been drinking at the home of our neighbor. May I take any action
against the neighbor, who supplied the liquor to the youths?

A. Possibly. Courts have imposed liability against such neighbors or parents when
they have served liquor to minors. Parents can be liable for negligent supervision of their
children. But as a general rule, courts have said that social hosts are not responsible for the
conduct of their guests, unless the hosts routinely allow guests to drink too much–or take
illegal drugs-and then put them into their cars and send them out on the highway.

 

Q. I was injured when my automobile collided with a truck driven by a
delivery person. Can I recover damages from the driver or the employer?

A. You may be able to recover from both. Under a form of strict liability, known
as vicarious liability, you probably can recover from the deliveryperson employer. Under
the law, employers may be held liable to third persons for acts committed by employees within the scope of their job. Although the employer was not negligent, it becomes
indirectly liable for the negligence of its employee. Was the employee making a delivery
when the accident occurred? If so, the employer is liable, since deliveries clearly is part of
the driver’s job. But if the employee first stopped at a restaurant for drinks and dinner with
friends, the employer may be able to escape liability.

 

Q. A car ran over my dog. Can I recover from the driver?

A. Yes, you might win a lawsuit. A dog is property, and you have suffered
property damage. You will have to show that the driver was negligent.

 

Settlement Offered in Airport Death

 
Phoenix has offered a $250,000 settlement to the family of a New York City woman who accidentally strangled herself while in police custody two years ago at Phoenix Sky Harbor International Airport.
In a statement Monday, the Phoenix Police Department maintained its officers acted properly and acknowledged that the offer is just a fraction of the original $8 million negligence claim sought by Carol Ann Gotbaum’s three young children.

Continue reading “Settlement Offered in Airport Death”

Bong Water Is an Illegal Drug

Bong water can count as a controlled substance, the Minnesota Supreme Court ruled Thursday in a decision that raises the threat of longer sentences for drug smokers who fail to dump the water out of their pipes.

In a 4-3 decision Thursday, the state”s highest court said a person can be prosecuted for a first-degree drug crime for 25 grams or more of bong water that tests positive for a controlled substance.

Continue reading “Bong Water Is an Illegal Drug”