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February 6, 2011
By Barbara Haubrich-Hass, ACP/CAS
Evaluating liability is ultimately the responsibility of the attorney. There are so many different theories of liability that can pull in any number of culpable parties that making this determination can be challenging. In addition, theories of liability can change as a case develops. A paralegal can contribute to a case analysis.
When evaluating liability, the first step is to determine the type of liability that relates to the type of incident. The second step is to identify all of the potentially culpable parties. Determining the type of liability and the identity of all of the potentially culpable parties will assist in determining what statute of limitations applies to that case, and what theories of liability should be pursued.
Once you have ascertained all of the potential culpable parties and theories of liability, the third step is to analyze the percentage of fault attributable to each party. Essentially, you are putting yourself in the roll of the jury, and estimating the percentage of fault for each party. This is easy to do when there is only one culpable party. It is much harder, however, with multiple parties, including possible public entity parties. Nevertheless, this is an important third step, as this step will help you focus the theories of liability on each party and focus the future discovery in the case.
The first example of a case evaluation is the typical motor vehicle collision. Mrs. Good Driver is sideswiped by Mr. Bad Driver when Mr. Bad Driver ran a red light at an intersection. This seems simple: A standard theory of general negligence in a motor vehicle collision. However, add to this case scenario that Mr. Bad Driver was in the course and scope of his employment at the time of the collision. This adds a respondeat superior theory of liability against Mr. Bad Driver’s employer. Add to this fact scenario that the employer of Mr. Bad Driver is the City of Anytown, California, and this adds a public entity as a potential culpable party. Therefore, the theories of liability are general negligence against Mr. Bad Driver, and respondeat superior against the City of Anytown, with a statute of limitations of six months from the date of the incident to file a Claim with the City of Anytown.
The second example of a case evaluation is an animal attack. Little Sally Smith, age 6, was going for a walk with her mother, Candace Smith, when suddenly a Pitbull dog ran out of a yard and attacked Little Sally causing her severe personal injuries. The Pitbull was owned by Mr. Bad Dog Owner. The theory of liability is strict liability as an animal attack falls within that theory. The culpable parties include Mr. Bad Dog Owner and potentially other premises owners where the attack occurred. In determining the statute of limitations for this type of case, although Little Sally has 2 years past her 18th birthday to file a lawsuit, Candace Smith, an adult, does not. Candace Smith has a claim for negligent infliction of emotional distress for witnessing the dog attack on her daughter, and has a statute of limitations of 2 years from the date of the incident. Therefore, in order to protect Candace Smith’s claim, the statute of limitations should be calendared for 2 years from the date of incident.
The third example of a case evaluation is a defective product. Tony Hasselloff was preparing a turkey dinner with a new turkey fryer that he purchased at Super Big-Mart and manufactured by Brinksmith Turkey Fryer. As he lowered the turkey into the boiling oil, the oil spilled over the lip of the cooker onto the flame causing the oil to ignite and explode resulting in third degree burns over 40 percent of Tony’s body. At the time of the incident, Tony Hasselloff’s wife, Sarah, was inside the house when she heard the explosion, and came running out to help her husband. In this case scenario, Tony Hasselloff has a claim under the theory of strict liability as a product defect falls within that theory. Sarah Hasselloff has a claim for negligent infliction of emotional distress for witnessing the injuries to her husband immediately following the incident, and a claim for loss of consortium. The culpable parties include Brinksmith Turkey Fryer as the manufacturer, and Super Big-Mart as the retailer of the product. The statute of limitations is 2 years from the date of the incident.
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DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this newsletter, or to any other website to which this e-zine/article may be linked.
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