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Why does the plaintiff have to prove all 4 d's of negligence while the defendant needs to only disprove one?
Wiki User
∙ 15y ago
Dereliction of a duty directly causing damages. A defendant does not have to prove or disprove anything. The plaintiff carries the burden of having to prove all required elements of any action. If four elements are required and the plaintiff can only prove three, then the plaintiff loses. As with the people wishing to sue for finding hair in their french fries, if you lack damages or injuries, you lose. If you are injured, but the defendant is not the one who injured you, then you lose. You cannot win a negligence suit if you are missing one of the required elements of your case.
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∙ 15y ago
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Pro se Plaintiff having received answer to complaint on summons what is next step plaintiff needs to take?
If there are counterclaims, then pro se plaintiff needs to file his own answer. You also want to consider any afformative defenses asserted by the defendant and their merit.
If a defendant has been improperly named in the summons is there anything else the Plaintiff needs to do other than file a corrected summons and serve it on the defendant within the sixty day period?
Yes, the Plaintiff needs to amend the pleadings attached to the summons to reflect the correct name of the defendant. Usually a Petition or a Complaint.
What is the definition of setoff?
If you are referring to the legal terminology, setoff pertains to the demand made by the defendant against the plaintiff. It needs to be a valid legal claim that could be brought up as a separate suit and needs to be based on an entirely different claim from that of the plaintiff.
What are four elements involved in a successful negligence suit?
1. Duty - The Defendant must have owed a duty to the Plaintiff. There are generally two ways a duty can arise between the Defendant and the Plaintiff. First, ask "did the defendant's conduct create a risk of harm to the plaintiff?" If the answer is yes, then the defendant owed a duty to do his risk-creating conduct reasonably under the circumstances. If the defendant's risk-creating conduct did not create a risk (the answer to the question is no), then one needs to investigate into whether a special relationship exists between the parties. Examples of special relationships are hiker-hiker, teacher-student, doctor-patient, priest-churchgoer, etc. Special relationships can increase the amount of care owed by one party to the other, but generally will never decrease the amount of duty owed. 2. Breach of duty - the defendant failed to act reasonably under the circumstances If the jury concludes that the defendant did not act as a reasonable person should under the circumstances (which is not necessarily how the individual jurors would have acted) then the defendant breached his duty. Remember, the negligence suit fails if the defendant did not owe a duty. 3. Cause - You asked for four elements but "cause" is broken down into two categories-cause-in-fact and proximate cause. Cause-in-fact is usually easy to prove. Ask "if not for the defendant's existence in the world, would the plaintiff have been harmed?" If the answer is yes, then the defendant's conduct is a cause-in-fact of the plaintiff's harm. There are other tests used. Proximate cause is usually more difficult than the other elements. It deals with how closely the defendant's conduct relates to the plaintiff's injury. Perhaps the best means to illustrate proximate cause is by example. If A drops a lit cigarette outside, the wind carries the cigarette 500 feet onto the outhouse on a farm, the outhouse explodes due to the gasoline tank inside (just assume the farmers were crazy kept gasoline around their outhouse). The outhouse's debris breaks through the windshield of a moving car. The car causes an accident injuring the other driver. So, should A be held liable for causing the other driver's injury? Probably not. He is a cause-in-fact of the injury because if he never dropped the cigarette, the injury would not have occurred. However, its not very foreseeable that dropping a cigarette would cause such a sequence of events, so A would not be held liable because his actions were not the proximate cause of the other driver's injury. 4. Damages - the plaintiff must have been injured by the defendant's negligence.
What are the three type of torts?
Negligence, Intentional Torts, and Strict LiabilityI. Negligence The elements of proving negligence (with examples) 1. defendant has a duty to the plaintiff (to keep the grocery store safe) 2. defendant breached that duty (by leaving a banana peel on the floor for two hours) 3. the breach proximately caused (plaintiff slipped on the banana peel) 4. plaintiff's damages (plaintiff says ouch!) Main defense to a negligence claim -- remember that Georgia is a comparative negligence state - in addition, if a jury finds that the plaintiff is more than 50% negligence, plaintiff recovers NOTHING. Examples of Negligence 1. WRONGFUL DEATH - the measure of damages is the full value of life of the deceased -- it includes economic damages (lifetime income with no deduction for living expenses, etc) and intangible factors such as enjoyment of life -- it's up to the jury to determine this amount. In GA, there is no statutory formula or limit to figure out these amounts. - a surviving spouse shares equally with the decedent's surviving children -- there is no spouse or surviving children, the parents have the right to sue. If the death was caused intentionally, then it would be an intentional tort 2. PROFESSIONAL LIABILITY (MALPRACTICE) - is actually a negligence action against a professional - professionals must exercise the appropriate standard of professional care - there's no cap on damages in GA - An affidavit from a like professional must be filed with the Complaint stating that there was malpractice committed in his/her opinion (or within 45 days of filing the Complaint was filed within 10 days of the statute of limitations) DAMAGESAs we know, there are two parts to building a case - liability and damages. In a personal injury case, we need to know that a plaintiff may recover compensatory damages, which may include medical expenses, lost income and pain and suffering (physical and emotional). There is no limit on pain and suffering in Georgia. Georgia recognizes the tort of loss of consortium - the loss of companionship of a spouse. Remember that punitive damages are NOT recoverable in a simple negligence case - they are recoverable if the defendant committed gross negligence. II. Intentional Torts 1. SLANDER AND LIBEL - Slander is a spoken untruth. Libel is a written untruth Read the Slander statute in the web reading: OCGA 51-5-4 The first 3 items (a 1,2,3) in that statute are statements which are defamatory just by saying them (we call that SLANDER PER SE - where damages are presumed JUST BY MERELY MAKING THOSE STATEMENTS). Since damages are presumed, this falls in the General damages category -- the thinking is that these statements are so bad, someone shouldn't have to prove they were "damaged". Here's an analogy -- if you are ticketed and convicted for following too closely as you rear end someone's car with your own, then when that person sues you in civil court, the civil court will look at your conviction and say to the plaintiff that s/he doesn't need to prove LIABILITY anymore (THIS IS CALLED PER SE NEGLIGENCE). Then all plaintiff needs to do is prove damages. Under 51-5-4a(4), in any other type of statement not found in 1-3, a plaintiff must prove that s/he was actually damaged by the uttered statement through evidence (CALLED SLANDER PER QUOD - WHICH REQUIRES A SHOWING OF SPECIAL DAMAGES). -- 51-5-11 deals with newspapers and libel. If the newspaper publishes an acceptable retraction within 7 days written demand from plaintiff, then it can avoid a future award of punitive damages. Getting the picture of how high stakes a game punitive damages can be? DEFENSES - you need to know that truth is an absolute defense to libel and slander. NEWSPAPERS/FIRST AMENDMENT - NY TIMES V. SULLIVAN - While a "private person" can prevail in libel/slander by showing the defendant was merely negligent, a "public figure" must show the court proof that the defendant knew the statement was false or was reckless in making the statement. Thus, it's easier for a private person/plaintiff to win this type of lawsuit. Other types of Intentional Torts 2. SLANDER/DEFAMATION OF TITLE - the elements: 1- defendant uttered and published (said to third person) slanderous words), 2- the words were false, 3- the words were malicious, 4- damages, 5- plaintiff actually owned title to the property being "slandered" 3. INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS - Elements: 1- defendant acted improperly and without privilege, 2- acted with intent and malice to injure, 3- induced a third party to break a contract with plaintiff or not to do business with plaintiff, 4- damages (example - inducing a bank not to loan plaintiff money with the intent to destroy the business) 4. FRAUD (also known as INTENTIONAL MISREPRESENTATION) 1- a false representation made by defendant, 2- defendant knew the statement was false, 3- defendant intended plaintiff to rely on statement, 4- plaintiff justifiably relies on statement, 5- damages were proximately caused by statement 5. MISAPPROPRIATION OF TRADE SECRETS - be careful not to give up a former employer's trade secrets when going to a competitor as a new place to work - This tort claim often supplements intellectual property claims based on patent and copyright infringement counts in a lawsuit III. Strict Liability Strict liability departs from Negligence in a huge way. In negligence - we assess whether a defendant breached its duty of care to the plaintiff, and we ask the question DID THE DEFENDANT ACT REASONABLY. If the jury finds that it acted reasonably, end of story. In strict liability cases, the defendant is liable even if it acted reasonably. There are 3 types of strict liability cases: 1- keeping wild animals 2- dangerous, legal activities such as blasting roads 3- the manufacture of products (products liability) PRODUCTS LIABILITY PRIVITY OF CONTRACT was abolished by the McPherson case. Privity of contract used to mean that only the purchaser of the product could sue. Today, if you buy a toaster and it blows up, your injured neighbor who is over for breakfast can sue the manufacturer, though she is not in privity of contract with the manufacturer.
What if you do not receive the summons for debt collections?
In civil suit for debt owed, the plaintiff only needs to demonstrate to the court that they have made a reasonable attempt to serve notice on the defendant debtor. If the debtor cannot be found the lawsuit will still go forward without the participation of the named defendant. However, in most U.S. states the defendant must be duly served according to the laws of the state in which he or she resides with a final judgment notice before a judgment writ can be executed. The service of said writ upon the debtor can be by a designated agent of the plaintiff and/or certified mail and/or courier (UPS, FedEx, etc.). The defendant is given a specific time to respond to the judgment order citing allowable personal and real property exemptions that are exempt from seizure, garnishment, levy, and so forth.
What is the disparity principle?
Requires that the sentencing of the co-defendant needs to be considered
What is a leave to plead?
"Leave to plead" is the allowance by the court to file a particular type of pleading even though technically, you may be barred by court rules or statute from filing the pleading. As an example, a defendant normally has a limited number of days within which to file an Answer. After the time expires defendant will be allowed to file out of time only if the plaintiff consents or in some cases only if the court consents. If the defendant needs the court's consent, application is made for "leave to plead" defendant's answer. If the court grants leave to plead, the defendant may file the Answer as if it had been filed within the time originally required. The phrase also applies to adding different types of defenses or claims that may have been left out of pleadings already filed. If, for example, a defendant filed the usual answer denying plaintiff's claims, but later realized he should have included several affirmative defenses as well, he might have to get the court's permission to amend his original answer by adding the affirmative defenses. Here, defendant would be granted leave to plead the specific affirmative defenses he needs.
Is changing charges without notifying defendant lawful?
It is against the law to do so (at least Canada and the US). Any major change (new charges, new evidence, etc.) needs to be brought forward to both sides. This is to allow the defendant and the plaintiff to have an equal opportunity at pleading their case. Failure to follow that rule, will result in the dismissal of whatever has been added to the case(new charges, new evidence, etc.) and may even result in a mistrial.
Where may one file a professional negligence claim?
One would hire an attorney to file a professional negligence claim. One can use the 'Pro Neg' website to hire such a lawyer and they will give all the advice one needs.
Are all multiples of 2 multiples of 4?
No. All it needs is one counter example to disprove: 6 is a multiple of 2 but NOT a multiple of 4.
Can you suit a dapm facilityfor malpratice?
When a facility is that of a doctor's or law office, you can sue for malpractice. To prove malpractice as occurred, gross negligence needs to be proven.
