Issues Concerning Tort Cases GenerallyBurden of ProofAs discussed in the Process of a Lawsuit chapter, a plaintiff has to prove his or her case "by a preponderance of the evidence." In other words, a plaintiff must show that a majority of the evidence establishes that the defendant committed a tort (under whichever theory of liability). 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 are frequently contradictory. Because the criminal burden of proof is higher, a defendant may be found innocent of committing a crime, but liable for tort damages.
Affirmative DefensesA defendant who makes an affirmative defense does not deny the evidence against him or her, but argues that the plaintiff is also culpable and, for that reason, any judgment against the defendant should be reduced or dismissed entirely. In the tort context, two examples of an affirmative defense are comparative negligence (see above) and assumption of risk. The doctrine of assumption of risk states simply that in situations where the plaintiff was aware of the potential for injury and proceeded nonetheless, the defendant's liability should be reduced, if not erased altogether.
Vicarious LiabilityVicarious liability describes those instances wherein one person is held liable for the tortious acts of another, even though the first person was not involved in the act, did nothing to encourage the act, and may even have attempted to prevent it. For example, under Florida law, a person who consents to the use of his or her car by another is liable for any negligent damage the second person may do with the car.
The most common form of vicarious liability occurs in the area of employment. An employer is liable for any tortious acts committed by an employee acting within the scope of employment. But exactly what actions are "within the scope of employment" is a tricky issue. If an employee is driving his or her own automobile to work and hits a pedestrian, is that within the scope of employment? Probably not. What if the employee is driving a company car he or she routinely takes home? This is a better case for establishing vicarious liability. What if a telephone repair person making a house call during working hours causes an accident while driving a company van? A court will almost certainly find the employee to be acting within the scope of employment.
Another area in which vicarious liability is applied is in the case of bar owners or anyone providing alcohol. Under Florida law, anyone serving alcohol to a minor or to a known addicted drinker may be liable for intoxication-related damages caused by that person.
Joint and Several LiabilityIn cases where two or more defendants (whether acting in concert or not) are responsible for a plaintiff's injury, and it is unclear which defendant is responsible for which portion of the injury, the defendants can be found jointly and severally liable for damages. In other words, a plaintiff has the right to collect the damage award from the defendants as a whole or individually, depending on the plaintiff's preference. An example might be a situation in which two cars collide with a third, causing the plaintiff multiple injuries, and it is not known which collision caused which injury. Where it is clear which defendant caused which portion of the plaintiff's injury, each defendant will be liable only for that portion of the injury he or she caused.
Wrongful Death LawsuitsIf a person dies from a defendant's tortious action, the decedent's survivors and estate may bring a lawsuit for wrongful death. Survivors include the decedent's spouse, children, and parents. Each survivor may recover for loss of the decedent's support or services. Additionally, the surviving spouse, minor children, and all children if there is no surviving spouse, may recover for loss of the decedent's companionship and protection. They may also recover for pain and suffering. The estate can recover for lost earning from the date of injury until the date of death, and funeral and medical expenses if paid by the estate.
Government ImmunityThere was a time when citizens could not sue the government for torts committed by government employees. This immunity has been largely waived by the federal and state governments, including Florida. The Florida state government is now liable for the torts of its employers to the same extent as private employers. However, there are limits. For example, there is no duty of care concerning how the state exercises its discretionary power to enforce the law. A person cannot sue the fire department for failing to put out a fire in his or her house, nor the police department for failing to stop the theft of his or her car. Only if a plaintiff can show that the government owed him or her a special duty, above that owed to the public at large, will he or she prevail in a tort suit against the government.
Statute of LimitationsRemember that there are limits to the time period in which a lawsuit can be filed. For example, a lawsuit based on negligence must be filed within four years from the time the cause of action arose. 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.
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