Insurance Law FAQs

If a dog bites someone, can the owner be held legally responsible?

In many states, the answer to this question is yes. An owner of a dog, or any animal for that matter, may be held liable for the injuries that the animal causes to others. Originally, at common law, an injured party could bring suit against an owner claiming that they had "guilty knowledge" of the animal's propensity for violence or viciousness. In other words, the plaintiff had to show that the owner of the dog knew, or should have known, that the dog was inclined to attack or bite.

In some states, a plaintiff may still bring a claim on this basis. Additionally, in certain jurisdictions, a plaintiff may bring a claim based on principles of negligence or based on the theory of absolute liability. Some states have "dog-bite" statutes designed to address these very matters. Additionally, some municipalities may also have their own ordinances that also address the responsibility of pet owners to answer for the actions of their pets.

In some situations, a pet owner may be able successfully to defend a lawsuit by arguing that the animal was provoked by the injured party. Where the plaintiff has been given clear warning that an animal should not be approached, petted or talked to, and still proceeds with that action, the owner may be able to avoid responsibility if the animal attacks the plaintiff.

Owners of animals that are known to be violent or prone to vicious acts should be cautious in allowing those animals to run free. However, if an owner takes reasonable measures to ensure that an animal is contained when necessary, and does not order an animal to attack when unnecessary; it may be possible to avoid liability for the consequences of the animal's attack or bite. Avoiding liability will depend greatly on the particular circumstances and the laws of controlling jurisdiction.

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What is the difference between assault and battery?

The terms assault and battery are often erroneously used interchangeably. An assault can be defined as the threat of the use of unlawful force to inflict bodily injury on another. The threat, which must be believed to be imminent, must cause reasonable apprehension in the plaintiff. Therefore, where the defendant has threatened some use of force, but the apprehensive reaction of the plaintiff is not reasonable, an assault has not occurred. The focus, for determining whether a particular act is an assault, must be on the reasonableness of the plaintiff's reaction.

In order to have a valid assault claim, the plaintiff must be able to show that the defendant threatened to use unlawful force to exact bodily harm which was imminent and which the defendant was actually capable of carrying out, which created a reasonable reaction of apprehension in the plaintiff.

In comparison to assault, a battery is the intentional and unpermitted contact with another. A battery, for practical purposes, is the end product of an assault. A battery does not actually require a physical injury, although it may in many cases. For example, a battery may also occur when the defendant jabs a finger in the air at the plaintiff or where the defendant grabs onto the plaintiff's coat. A battery need not result in actual injury, but only need be an unlawful and unpermitted contact with another, or with the property of another. In addition, it is not necessary for the contact to be with an object in the possession of the plaintiff or the plaintiff's body. An unpermitted contact with property of the plaintiff, located within the plaintiff's proximity, may also constitute a battery.

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Can a party be legally liable for slandering someone?

A party may be legally liable for slandering another. Slander is one type of defamation, and libel is another type of defamation. Generally, slander occurs when the reputation or good name of someone is damaged as a result of false statements that are orally made. Libel, on the other hand, occurs when false statements regarding another are put in writing.

Whether a particular statement, oral or written, constitutes defamation in the nature of slander or libel will depend on the particular circumstances and the identity of the parties. The basic elements require that the defendant have made a false and defamatory statement, about the plaintiff, which is communicated to a third party, either intentionally or at least negligently.

The most powerful defense to a defamation action is that of truth. No matter how damaging, insensitive, rude, or inappropriate a statement may be, the defendant will not be liable where the statement is true. In addition, the elements of a defamation action require that the statement be received by a third party or parties. Therefore, where the defendant approaches the plaintiff, and only the plaintiff, and says without truth, "you are a cheat and a thief and a no-good fraud," no claim for slander will lie where no one else heard the statement. In other words, although the plaintiff's feelings may have been hurt, the defendant cannot be legally liable for being mean. However, if the defendant made the same statement in front of a room crowded with the plaintiff's business colleagues, a much stronger case for defamation exists.

Another potential limitation on the success of a defamation claim is the manner in which the third parties interpret the statement. A statement can only be defamatory if it is interpreted by third parties as vilifying. For example, if the defendant is seated at his weekly poker game and, as he is about to lose a hand, laughingly yells out, without merit, that the plaintiff is a "cheater and a stinky player," and all of the other players laugh as well, it is highly unlikely that the plaintiff could support a claim for defamation.

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Does the average member of the public have any privacy rights?

Yes. The average member of the public is entitled to privacy protections, although the strength of those protections will vary depending on the particular factual circumstances.

Generally, there are four different actions that may constitute an unlawful invasion of another's privacy. The first concerns the unlawful appropriation of another's image. For example, when an owner of a car dealership uses a picture of a famous movie star in a commercial or advertisement without permission is illegal. This unlawful appropriation of the movie star's image can result in liability.

The second type of wrongful invasion of privacy is in the nature of intrusion. If an intrusion into another's solitude, seclusion, or private life is done in a manner that would be considered highly offensive to a reasonable person, then the defendant may be liable. What actions are considered to be highly offensive depends greatly on the factual circumstances under examination.

The third type of a privacy claim is the public disclosure of private facts. This cause of action requires that facts, which have no link to a legitimate public concern, be disseminated by the defendant and result in embarrassment, humiliation, or offense to the plaintiff. Whether the public has a legitimate concern in otherwise private facts about an individual is always dependent on the particular circumstances. For example, the public may have a legitimate interest in knowing that a local surgeon has the AIDS virus, which is an otherwise private matter, due to the potential health risks involved with that condition. In comparison, however, the public may not have a valid interest in knowing the HIV status of the local cabdriver, as there is no threat to the public health or safety in that situation.

A fourth type of privacy right is the right to be free from being placed in a false light in the public eye. This cause of action is very similar to a defamation action. In short, the defendant places another in false light in the public eye if an untrue communication about the plaintiff is made to the public. If the communication is true, no liability will attach.

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What does it mean to say that a state has a "no-fault" system for motor vehicle accidents?

Many states have enacted "no-fault" automobile insurance systems that seek to provide compensation to individuals injured in automobile accidents without regard to fault. Many of these systems are considered to be first-party insurance systems. This means that individuals who are injured in automobile accidents make a claim for recovery against their own insurance carrier, rather than the insurance carrier of one of the other party involved in the accident.

Many no-fault automobile systems require that every driver obtain a minimum level of insurance before being allowed to operate a motor vehicle. This requirement seeks to limit situations in which an individual is injured in an automobile accident and does not have insurance that would assist in compensating for the injuries. Under many systems, the purchaser of the insurance is given the option to obtain additional insurance providing greater coverage.

Numerous types of benefits are available under most no-fault systems including coverage of medical and hospital expenses for treating the injuries sustained in the accident, payment of lost wages, and payment of funeral expenses. These types of losses are generally considered to be economic in nature. In some states, individuals who purchase higher levels of insurance coverage may be able to purchase additional types of coverage, such as coverage for non-economic losses like pain and suffering.

The total amount of benefits that may be recovered will vary by jurisdiction. Some states have no-fault systems capping the damages that may be recovered. Some systems also have a threshold of no-fault benefits that must be met before tort damages may be sought. No-fault plans can be complex and confusing, and it is therefore a good idea to examine carefully the particular requirements and limitations of any plan that may apply, and to seek the counsel of an experienced lawyer, if involved in an automobile accident or dispute over no-fault benefits.

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Does an owner of property have any duty to the public to protect them from injury?

An owner of property does have a duty to protect members of the public from injury that may occur on the property. However, the nature and extent of that duty will vary depending on the jurisdiction in question.

Some states focus solely on the status of the injured visitor to the property. These states divide the potential status into three separate categories: invitee, licensee, and trespasser. As the term implies, an invitee is someone who has been invited onto the land. An owner of property must exercise reasonable care for the safety of invitees. A licensee is someone who enters the land for his own purpose, and is present with the consent, but not at the invitation, of the owner. For example, a door-to-door salesperson who enters the property and stays to chat with the owner about the product he is selling is a licensee. Finally, a trespasser is an individual who enters the property without the knowledge or consent of the owner and who remains there without any right or permission. In states that focus solely on the status of the visitor, the owner of property is not required to exercise reasonable care for the safety and benefit of either a licensee or a trespasser.

Other states focus upon the condition of the property and the activities of both the visitor and owner, rather than considering only the status of the visitor. In these states, a uniform standard is generally applied to both invitees and licensees. The standard requires that the property owner exercise reasonable care to ensure the safety of these individuals. In determining whether the requirement of reasonable care has been met, consideration will be given to the circumstances surrounding why the visitor entered the property, the use to which the property is put, the foreseeability of the harm, and the reasonableness of either giving a warning or repairing the condition.

The duty of a landowner to warn trespassers of dangerous conditions is extremely limited. An owner need only warn trespassers of potentially dangerous artificial conditions maintained or created by the owner that are unlikely to be discovered by the trespasser and which could cause serious injury or death. With respect to children, the duty is greater. The greater duty contemplates that, generally, children have a lesser appreciation for danger than adults do.

An owner of property is entitled to assume, with respect to any type of visitor, that visitors will exercise reasonable care for their own safety. Therefore, an owner may defend a premises liability claim by arguing that the injured party was negligent in causing his or her own injury.

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May an owner of property use deadly force to defend their property?

Generally speaking, an owner of property may not use deadly force to defend the property. Society views the value of human life and bodily integrity to be much higher than the value of property. Therefore, the life, health, and safety of an individual, even an intruder, is considered to be more valuable than the china or stereo that the individual is trying to steal.

An owner is not prohibited, however, from invoking self-help methods in defending his or her property. A property owner may use reasonable force to prevent someone, from entering onto the property or to assist in removing something or someone from the property. What, under normal circumstances, may constitute a battery, assault, or other intentional tort, will not be considered unlawful in situations where it is performed as a reasonable use of self-help in defense of property.

When attempting to force another to exit property, the general first step, before resort to any physical contact or threat of physical contact, should be a polite oral request to leave. Of course, the circumstances may prohibit this action. For example, a property owner who comes face to face with an armed intruder need not generally ask for the intruder to please leave the premises and shut the door on the way out. However, a property owner may be required to verbally ask a door-to-door salesman to please leave the yard, before threatening to push him through the gate.

Once a request has been made, and the intruder refuses to comply with the request, the owner may use such force as is appropriate to that specific situation. Once force is invoked, if the intruder persists, the use of force may be justifiably increased. The use of force calculated to do great bodily harm, or cause death, is not permitted.

The use of deadly force is authorized, however, where an intruder threatens personal safety, or where the intruder is committing a forcible felony. For example, if a robber enters a home and, while stealing items, attempts to rape the homeowner, the owner may be justified in shooting the robber. However, an owner who witnesses a neighborhood child stealing a bicycle from his garage, without any threat of bodily harm, is not justified in shooting that child.

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What remedies does a railroad worker, who is injured while working, have?

A railroad employee who is injured while working may bring a claim for benefits under the Federal Employer's Liability Act (FELA). FELA is similar to many state workers' compensation systems with the exception that a railroad employee must prove some level of employer negligence in order to recover. In comparison, most state systems are based on no-fault theories of recovery and therefore, neither the negligence of the employer nor the employee is examined. In practice, it is generally not difficult for an injured railroad employee to prove that the employer was, at least to some degree, negligent.

A railroad is required to furnish a reasonably safe workplace for the benefit and protection of its employees. In keeping with this requirement, it must inspect and discover defects that may result in injury. In some circumstances, this may include the duty to uncover defects that should be obvious to a railroad employee. Courts have held on at least one occasion, that an employee need not prove that the railroad had actual or constructive knowledge of the condition. Therefore, the potential liability of a railroad is arguably greater than that of a typical landowner or possessor of property; in many situations they are not required to warn of, or take steps to prevent injury from conditions that are open and obvious. A railroad also has a duty to warn its employees of any hazardous or unsafe conditions of which it is aware or should be aware.

In addition to these requirements, a railroad must take other steps to ensure the safety of its workers including providing adequate training and supervision, appropriate tools and safe equipment, and enforcing only reasonable work quotas.

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What is a slip and fall action?

A slip and fall action is exactly what the name implies, a lawsuit commenced after an individual has slipped and fallen. Examples of very common slip and fall actions include the grocery store patron who slips on a spill in the store or a piece of food on the floor and falls, causing injury. Another example of a common slip and fall action is that of a hotel guest who slips in the shower and falls, injuring his or her back in the process.

An owner or possessor of property may be liable to the injured patron or guest in these circumstances, although a finding of liability is not guaranteed. In order to recover, in most jurisdictions, the injured party will have to show that the owner of the property had notice or knowledge of the condition and failed to clean it up or rectify it within a reasonable amount of time. Therefore, in the grocery store example, if the plaintiff spilled coffee grounds on the floor and, milliseconds later, slipped on the grounds and fell, liability may be questionable. However, if the plaintiff slipped on a grape, which had been lying on the floor for two hours, and the manager of the store had walked past it and inspected it five times without asking someone to clean it up, liability might be more readily found.

If the plaintiff has knowingly encountered a hazard, then liability is less likely to fall on the owner. For example, if a hotel guest squirts baby oil onto the floor of the shower and then steps into the shower and slips and falls, resulting in a broken ankle, liability on the part of the hotel is highly questionable. However, if the cleaning staff in the hotel repeatedly tells management that the non-skid treads in the bathtub for room 212 are missing, and the hotel fails to replace them, then when a guest slips in the tub and is injured, liability might be more easily attached. In all cases, the determination of whether an owner of property has been given a reasonable amount of time to discover and correct a dangerous or hazardous condition will depend greatly on the specific facts.

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Can anyone bring a wrongful death claim?

No. Generally, most states limit the pool of potential plaintiffs in a wrongful death cause of action. Some states limit this group to the deceased's primary beneficiaries, which include the surviving spouse and children. Other states allow the decedent's parents to bring a wrongful death claim. Some states may allow for other, more removed, individuals to bring claims. For example, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person was actually a dependent of the deceased.

States place limitations on who may bring wrongful death actions in order to ensure that defendants are not required to pay damages to individuals who did not suffer a loss as a result of the deceased's death. For example, some states allow the plaintiffs in a successful wrongful death action to recover the lost value of the deceased's future earning potential. Clearly, it makes little or no sense to allow the deceased's second cousin once removed, who saw him once every five years at a family reunion, to recover for the loss of the deceased's future earning potential. However, some states do allow any recovery to be distributed to the deceased's heirs as it would be in any normal probate proceeding. In these situations, it may be possible that distant relations receive some "trickle down" of damages, even though they were not financially dependent on the deceased during his or her life.

In situations where there is more than one beneficiary or dependent who is entitled to recover, the award will be distributed among those individuals according to the rules and requirements of the particular jurisdiction. Many states divide the damages among the beneficiaries according to their losses, which can be a very confusing and time-consuming process. In other jurisdictions, the damages are divided according to statute or by the normal intestacy laws that would otherwise apply.

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Learn More: Insurance Defense

Personal injury actions require, by their very nature, that someone be injured. The requisite injury can either be physical or, in some cases, emotional. The general goal of personal injury actions is to place the blame for the injury on the parties who caused it and to require them to compensate the injured for the losses sustained.

Some personal injury actions revolve around a concept of intentional conduct. Generally, intentional conduct is found when one intentionally harms another, or knows that the conduct in which the individual is engaged, gives rise to a substantial likelihood that harm will result. IF intentional conduct is found, liability for the resulting harm will in fact attach. Other personal injury actions have as their basis a more relaxed concept of fault whereby one is liable for the results of action, or inaction, where an ordinary person in the same position should have foreseen that the conduct would create an unreasonable risk of harm to others. Still other types of personal injury actions are based on a no-fault system where liability may attach regardless of the fault of the various parties, including the plaintiff.

The defense of personal injury actions requires, in almost every instance, a lawyer's careful examination of the facts and circumstances of the particular matter in question in order to determine whether the defendant is legally responsible for the injuries sustained by the plaintiff. The defendant can be held liable as a result of either the actions that are taken or the actions that are not taken.

In some situations, the actions of the defendant or the failure of the defendant to act does not rise to a level that entitles the plaintiff to a recovery. For example, if a defendant property owner fails to shovel snow from his sidewalk, and the plaintiff falls on the snow and breaks her hip, liability would not necessarily attach in a slip and fall action if the plaintiff knew of the hazardous snowy condition and willingly chose to encounter it. Similarly, where the defendant approaches the plaintiff and states, "I might poke you in the eye if you wear that red sweater again," it is likely that no actionable assault occurred because there was no immediate threat of harm that caused reasonable apprehension on the part of the plaintiff.

Personal injury law, and personal injury defense, can involve many different types of claims, theories, and principles. Some of the more common types of personal injury actions include the following:

Animal bites can result in liability of the animal's owner to the person who is bitten, or who is injured while trying to avoid a bite.

Assault and battery are two intentional torts that involve the use of improper contact with another, without permission or consent, or the threat of such contact.

Aviation accidents quite often result in either serious injury or death. When these accidents occur, questions regarding the liability of the airline, its employees, or the government may arise.

Defamation and privacy are two separate causes of action that concern an individual's right to have his or her name and reputation protected, and to have his or her interests in privacy preserved.

Motor vehicle accidents are very common and raise numerous questions as to the liability of one participant to another.

Premises liability concerns the responsibilities of owners and possessors of property to safeguard others from dangerous conditions or hazards on the property.

Property damage causes of action concern the right of an owner or possessor of property to protect his or her property from damage, theft, or intrusion.

Railroad accidents may result in personal injury or death, the occurrences of which may subject the railroad to liability.

Slip and fall cases are very common causes of action and relate closely to the duty of an owner or possessor of land to maintain the property in a safe manner for the benefit of others lawfully entering upon the land.

Wrongful death actions may be brought by the dependents or beneficiaries of a deceased individual against the party whose action or inaction was causally related to the death.

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