Mr McPhillen was sitting at a bar. He noticed a man bother a woman. He kept yelling and screaming at her. The woman just kept her head down and ignored him. The man went up to her and grabbed her arm. Mr. McPhillen grabbed the man and twisted his arm back and made him sit down. When he asked the women if she was ok she said "yes that is my husband".
In this case summary this represents intentional torts. I will first start with the charges that Mr. McPhillen could have brought against him by the man in the bar and his defenses.
Leroy McPhillen could be charged with assault and battery because he used both on the man in the bar. Verbal threats and physical action both were used. Mr. McPhillen also can be charged with forced imprisonment as he threatened to harm the man if he got up from the chair he put him in. Although this may seem as if the man could get up there was still the threat that he would be hit if he did.
The defenses Mr. McPhillen have are the man grabbed the woman’s wrist Mr. McPhillen used the necessary force to prevent the attack on her. He thought the woman was going to be attacked by the man because he was shouting obscenities at the woman and started approaching her.
Defense of persons: A defense to the intentional torts of assault, battery, and false imprisonment. Its elements include the use of reasonable force to defend or protect a third party from injury when the third party is threatened by an attacking force. Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning (p. 229)
This case would have not gone far as there was a mistake in the fact that Mr. McPhillen did not know at the time, the woman was the man’s wife.
The man’s wife could have charges brought against her husband for assault, battery, infliction of emotional distress and possibly slander. I do not believe the wife’s husband would have any defense in this case. He was drunk and inflicting all these actions as a result.
…for reckless infliction of emotional distress, intent is not essential. The tortfeasor need only know (or reasonably should know) that his or her outlandish or outrageous actions will produce emotional injury. This knowledge element acts as a substitute for intent. Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning (p. 112)
I believe the only person in this case that could not bring any charges was Mr. McPhillen. He actually was only protecting the woman but mistakenly so as the man was married to the woman. My thoughts are he should have asked the woman if he was bothering her first and then called the police. Now Mr. McPhillen may be facing assault and battery and trying to defend his actions. Assault and battery in this case could very well end up with the same definition as Pon Lip Chew v. Gilliland.
The use of any unlawful violence upon the person of another, with intent to injure, whatever be the means or degree of violence used, is an assault and battery. When an injury is caused by violence to the person, then intent to injure is presumed and it rests with the person inflicting the injury to show the accident or innocent intention. Pon Lip Chew v. Gilliland, 398 S.W.2d 98, 100 (Tex. 1965)
Mr. McPhillen should not have got involved at all in this little incident but what would us women do without the heros of the world.
References
Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning (p. 112 & 229)
Pon Lip Chew v. Gilliland, 398 S.W.2d 98, 100 (Tex. 1965)
Showing posts with label Opinion. Show all posts
Showing posts with label Opinion. Show all posts
Thursday, January 15, 2009
Tuesday, January 13, 2009
Opinion Negligence Action vs Strict Liability
When comparing negligence actions and strict liability actions, there are similar actions that can be construed to be one but actually is the other.
Negligence actions have to be proven. The tortfeasor has a fifty-fifty chance of being found not guilty as the evidence has to prove at least 50% that the tortfeasor is guilty. In a strict liability action the victim does not have to prove negligence.
Negligence is defined as the failure to exercise reasonable care to avoid injuring others or the property belonging to others. Four elements can comprise a negligence cause of action: Duty, breach, causation and damages (Intro to Torts, Unit 4). It is our duty to protect someone from harm, when you breach that duty the cause has to be apparent, it was negligent on the part of the tortfeasor.
Strict liability in tort is the concept that in certain situations a defendant is liable for plaintiff's damages without any requirement that the plaintiff prove that the defendant was negligent,(Smith, 2009).
In this case of Strict Products Liability a woman sues a company that manufactures hip replacement devices;
This action was filed originally in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, on October 17, 2007. The complaint in this case alleges that Plaintiff Sharon Phillips suffered personal injuries as a result of a defective hip replacement device that was surgically implanted in her body in September 2003. Phillips asserts claims for breach of implied warranty, strict products liability, and negligence against Howmedica, the manufacturer of the hip replacement device. Additionally, Phillips asserts a claim in strict products liability against Defendant Anderson Hospital ("Anderson"), where Phillips underwent the operation in which the defective hip replacement device was implanted in her body in September 2003. … The court held that
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if(a) the seller is engaged in the business of selling such a product, and(b) it is expected to reach the user or consumer in the condition in which it is sold.(2) The rule stated in subsection (1) applies although(a) the seller has exercised all possible care in the preparation and sale of his product, and(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller, Phillips v. Howmedica Osteonics Corp.
Since the device was defective there was no defense Howmedica could apply except for statute of limitations which can happen in any tort case including negligence.
In the following case you will see that contributory negligence was abolished and comparative negligence used for a vehicle wreck. The differences in strict liability and negligence torts, is the fact that strict liability means you are totally responsible for the tort. As in the case below that is not true for negligence.
Appellant injured parties separately sought review of the appellate court and trial court's judgments, which dismissed appellants' complaint based on the doctrine of contributory negligence. On appeal, appellants contended that the court should abolish the doctrine of contributory negligence and adopt the doctrine of comparative negligence as the law of Illinois. Both lower court judgments were reversed and remanded. The court abolished the common law doctrine of contributory negligence and adopted in its place the doctrine of comparative negligence in its pure form. The court concluded that it was not fair for injured plaintiffs, because of some negligence on their part, to bear the entire burden of their injuries because contributorily negligence barred recovery by a plaintiff who was negligent. The court concluded that the pure form was the only system that truly apportioned damages according to the relative fault of the parties and, thus, achieved total justice. Further, the court held that contributory negligence was a judicially created doctrine, which could be altered or totally replaced by the court, which created it, Alvis v. Ribar.
In conclusion the difference in a negligence action and a strict liability action, I believe, is most strict liability cases are products or services that the tortfeasor manufacturers or delivers. Negligence is usually and action caused by a tortfeasor. Subsection (2)(a) of § 402A, Restatement (Second) of Torts, indicates that the seller is liable regardless of the degree of care used to safeguard the public from injury by the defective product. Subsection (2)(b) states that privity of contract is unnecessary for strict liability to apply, Buckley, W & Okrent, C (2004). In negligence cases, The plaintiff has the burden of proving that the defendant was negligent. This forces the plaintiff to prove by a preponderance of the evidence that all negligence elements existed (duty, breach, causation, and injury). The evidence must establish that the defendant’s actions were negligent and caused the plaintiff’s injuries. Burden of proof is sometimes referred to as burden of production, Buckley, W & Okrent, C (2004).
References
Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning (p. 49,296,321,331,335,338)
Kaplan University online Unit 4: Negligence. Retrieved January 28, 2009.
Smith, Craig A., 2009 by lawschoolhelp.com. Retrieved February 2, 2009.
Phillips v. Howmedica Osteonics Corp., 2007 U.S. Dist. LEXIS 92235 (S.D. Ill. Dec. 17, 2007)
Alvis v. Ribar, 85 Ill. 2d 1 (Ill. 1981)
Negligence actions have to be proven. The tortfeasor has a fifty-fifty chance of being found not guilty as the evidence has to prove at least 50% that the tortfeasor is guilty. In a strict liability action the victim does not have to prove negligence.
Negligence is defined as the failure to exercise reasonable care to avoid injuring others or the property belonging to others. Four elements can comprise a negligence cause of action: Duty, breach, causation and damages (Intro to Torts, Unit 4). It is our duty to protect someone from harm, when you breach that duty the cause has to be apparent, it was negligent on the part of the tortfeasor.
Strict liability in tort is the concept that in certain situations a defendant is liable for plaintiff's damages without any requirement that the plaintiff prove that the defendant was negligent,(Smith, 2009).
In this case of Strict Products Liability a woman sues a company that manufactures hip replacement devices;
This action was filed originally in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, on October 17, 2007. The complaint in this case alleges that Plaintiff Sharon Phillips suffered personal injuries as a result of a defective hip replacement device that was surgically implanted in her body in September 2003. Phillips asserts claims for breach of implied warranty, strict products liability, and negligence against Howmedica, the manufacturer of the hip replacement device. Additionally, Phillips asserts a claim in strict products liability against Defendant Anderson Hospital ("Anderson"), where Phillips underwent the operation in which the defective hip replacement device was implanted in her body in September 2003. … The court held that
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if(a) the seller is engaged in the business of selling such a product, and(b) it is expected to reach the user or consumer in the condition in which it is sold.(2) The rule stated in subsection (1) applies although(a) the seller has exercised all possible care in the preparation and sale of his product, and(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller, Phillips v. Howmedica Osteonics Corp.
Since the device was defective there was no defense Howmedica could apply except for statute of limitations which can happen in any tort case including negligence.
In the following case you will see that contributory negligence was abolished and comparative negligence used for a vehicle wreck. The differences in strict liability and negligence torts, is the fact that strict liability means you are totally responsible for the tort. As in the case below that is not true for negligence.
Appellant injured parties separately sought review of the appellate court and trial court's judgments, which dismissed appellants' complaint based on the doctrine of contributory negligence. On appeal, appellants contended that the court should abolish the doctrine of contributory negligence and adopt the doctrine of comparative negligence as the law of Illinois. Both lower court judgments were reversed and remanded. The court abolished the common law doctrine of contributory negligence and adopted in its place the doctrine of comparative negligence in its pure form. The court concluded that it was not fair for injured plaintiffs, because of some negligence on their part, to bear the entire burden of their injuries because contributorily negligence barred recovery by a plaintiff who was negligent. The court concluded that the pure form was the only system that truly apportioned damages according to the relative fault of the parties and, thus, achieved total justice. Further, the court held that contributory negligence was a judicially created doctrine, which could be altered or totally replaced by the court, which created it, Alvis v. Ribar.
In conclusion the difference in a negligence action and a strict liability action, I believe, is most strict liability cases are products or services that the tortfeasor manufacturers or delivers. Negligence is usually and action caused by a tortfeasor. Subsection (2)(a) of § 402A, Restatement (Second) of Torts, indicates that the seller is liable regardless of the degree of care used to safeguard the public from injury by the defective product. Subsection (2)(b) states that privity of contract is unnecessary for strict liability to apply, Buckley, W & Okrent, C (2004). In negligence cases, The plaintiff has the burden of proving that the defendant was negligent. This forces the plaintiff to prove by a preponderance of the evidence that all negligence elements existed (duty, breach, causation, and injury). The evidence must establish that the defendant’s actions were negligent and caused the plaintiff’s injuries. Burden of proof is sometimes referred to as burden of production, Buckley, W & Okrent, C (2004).
References
Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning (p. 49,296,321,331,335,338)
Kaplan University online Unit 4: Negligence. Retrieved January 28, 2009.
Smith, Craig A., 2009 by lawschoolhelp.com. Retrieved February 2, 2009.
Phillips v. Howmedica Osteonics Corp., 2007 U.S. Dist. LEXIS 92235 (S.D. Ill. Dec. 17, 2007)
Alvis v. Ribar, 85 Ill. 2d 1 (Ill. 1981)
Tuesday, January 6, 2009
Tort Law Opinion
Tort law contrasts with other areas of law in that they are governed by different procedures and the laws themselves are different. There is contract law, administrative law, property law, trust law, criminal law, and several others not mentioned here.
Tort law is governed by the Civil Rules of Procedure and is designed to
compensate victims. It also requires preponderance of the evidence and protects individual interests, Buckley, W & Okrent, C (2004). A tortfeasor commits a crime against an individual. Tort law also allows monetary gains but only with the strength of the evidence on the person being sued. In civil cases proof only has to be more than fifty percent clear and the burden of proof rests with the petitioner unless it is Res Ipsa Loquitur which means the evidence speaks for itself and the respondent must prove otherwise.
A criminal case which is governed by the Rules of Criminal Procedure and states that the proof would have to be clearly evident that the person arrested did the crime. A crime is an offense against the state and society and the state prosecutes these cases. Criminal law allows restitution if there are any costs associated with the criminal act.
One scenario that involves tort law and criminal law is the case of the in-ground pool and the duty to make the pool reasonably safe. If the property owner does not put a fence around his pool, some children that do not have the age to know better, could and possibly would take that as an invitation to swim in the pool. With this comes the responsibility of …”maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk,” Basso v. Miller. If by chance a child was hurt criminal negligence can result which could be a civil case or a criminal case. All elements for negligence are apparent. If a child were to drown this could result in criminal negligence this could lead to the arrest of the property owner, therefore tried by the state. This could also result in a civil case as the parents could sue the person for negligence.
To elaborate … a tort, and a crime; for example, the misappropriation of funds by a trustee is a breach of the contract of trust, the tort of conversion, and the crime of embezzlement (tort n.d.).
Terminology in tort law and criminal law are similar. Defense which is used in a civil case and self defense used in a criminal case are similar and both of these are used to clear a person of a crime. Tort terminology and criminal terminology are interchangeable because most of the time a criminal case can also become a civil case. This depends on if an individual(s) was involved in the criminal activity. As in the O.J. Simpson case he was tried for criminal charges and then brought to court in a civil suite.
References
Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning. Retrieved January 6, 2009 from Kaplan University Online database.
Criminal Law (n.d.). Retrieved January 6, 2009, from Funk & Wagnalls New World Encyclopedia database.
Basso v. Miller, 40 N.Y.2d 233, 241 (N.Y. 1976). Retrieved January 6, 2009 from LexisNexis database.
TORT. (n.d.). Retrieved January 6, 2009, from Funk & Wagnalls New World
Encyclopedia database
Tort law is governed by the Civil Rules of Procedure and is designed to
compensate victims. It also requires preponderance of the evidence and protects individual interests, Buckley, W & Okrent, C (2004). A tortfeasor commits a crime against an individual. Tort law also allows monetary gains but only with the strength of the evidence on the person being sued. In civil cases proof only has to be more than fifty percent clear and the burden of proof rests with the petitioner unless it is Res Ipsa Loquitur which means the evidence speaks for itself and the respondent must prove otherwise.
A criminal case which is governed by the Rules of Criminal Procedure and states that the proof would have to be clearly evident that the person arrested did the crime. A crime is an offense against the state and society and the state prosecutes these cases. Criminal law allows restitution if there are any costs associated with the criminal act.
One scenario that involves tort law and criminal law is the case of the in-ground pool and the duty to make the pool reasonably safe. If the property owner does not put a fence around his pool, some children that do not have the age to know better, could and possibly would take that as an invitation to swim in the pool. With this comes the responsibility of …”maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk,” Basso v. Miller. If by chance a child was hurt criminal negligence can result which could be a civil case or a criminal case. All elements for negligence are apparent. If a child were to drown this could result in criminal negligence this could lead to the arrest of the property owner, therefore tried by the state. This could also result in a civil case as the parents could sue the person for negligence.
To elaborate … a tort, and a crime; for example, the misappropriation of funds by a trustee is a breach of the contract of trust, the tort of conversion, and the crime of embezzlement (tort n.d.).
Terminology in tort law and criminal law are similar. Defense which is used in a civil case and self defense used in a criminal case are similar and both of these are used to clear a person of a crime. Tort terminology and criminal terminology are interchangeable because most of the time a criminal case can also become a civil case. This depends on if an individual(s) was involved in the criminal activity. As in the O.J. Simpson case he was tried for criminal charges and then brought to court in a civil suite.
References
Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning. Retrieved January 6, 2009 from Kaplan University Online database.
Criminal Law (n.d.). Retrieved January 6, 2009, from Funk & Wagnalls New World Encyclopedia database.
Basso v. Miller, 40 N.Y.2d 233, 241 (N.Y. 1976). Retrieved January 6, 2009 from LexisNexis database.
TORT. (n.d.). Retrieved January 6, 2009, from Funk & Wagnalls New World
Encyclopedia database
Subscribe to:
Posts (Atom)