Statutory law

Established and enforced by federal, state, and local

legislators. The courts decide how statutory law applies to
situations

Administrative law
Issued and enforced by an administrative body (agency) on
the authority of the legislature or executive branch.

Common law
Body of law and juristic theory originated, developed, and
formulated as an outgrowth of English common law. AKA
case law, common law principles provide resolution of
similar or identical disputes based on decisions made in
previous cases (precedents)

Constitutional law
The root of law in the United States is the Constitution of
the United States

Respondeat Superior
"Let the master answer": States that an employer will be
held liable for an employee's negligent act.

Doctrine of Corporate Responsibility

Hospitals are liable to fulfill directly duties to the patients.

Doctrine of Personal Liability

Each person is responsible for his or her own actions (or
lack of action).

Doctrine of Reasonably Prudent Man

Individuals performing an action are expected to perform
that action as would any reasonable person of ordinary
prudence

Res Ipsa Loquitur

"The act speaks for itself": Holds that the cause of
negligence is obvious.

Captain of the Ship

A person who is in charge (Captain) may be held
responsible for all of those under his or her supervision
(crew).

Definition of Tort
A wrongful act (outside breach of contract) committed
against a person or property.

Tort law
Exists to provide a substitue for vengeance, to find fault for
wrong doing, to deter the wrongdoer, and to provide
compensation for injured persons

Tort law
The most common type of civil law (non-criminal) for
individual claims against health care professionals.

Unintentional torts
Acts that are not intended to do harm but still result in
damage to person or property. Some examples of
unintentional torts are failing to provide for a patient's
safety, to carry out orders, or to properly educate the
patient (which resulted in injury).

Negligence
A breach or failure to fulfill the expected standard of care

Malpractice
The failure to do something that a reasonable person would
would or wouldn't do.

Inentional torts
Requires willful action. Three elements are necessary to
consider a tort intentional

Intentional torts 3 elements

An act was intended to interfere with a person or property
belonging to the person.
The consequences of the act were intended.
The act was a substantial factor in bringing about the
consequences

Assault
An act that causes another person to fear that he or she
will be touched in an offensive, insulting, or physically
injurious manner w/out consent or authority to do so.

Battery

The actual act of harmful or unwarranted or unconsented

contact with a person. Simple touching w/out permission is
battery.

False imprisonment
Illegal detention of a person w/out consent. Requires;
Confinement of victim, Intent to do so by the perpetrator,
Lack of consent by the victim.

Intentional infliction of emotional distress

(tort of outrage): Making disparaging remarks concerning a
patient or making fun of his/her problem, subsequently
causing patient emotional distress.

Intentional infliction of emotional distress requirements

Perpetrator knew/ should have known that the conduct
would cause emotional distress. The conduct was extreme
and outrageous. Perpetrator's actions were the cause of
distress. Distress was serious and no reasonable person
should have to endure it.

Quasi-Intentional Torts
There may not have been an intent to injure or distress a
patient, but the act is voluntary and did result in injury or
distress.

Criminal liability
All federal,state, or local law that broadly deals with crim
and its punishment. Enacted to prevent harm to society.

Criminal liability
The burden of proof must be beyond a reasonable doubt.
Two elements must exist for an individual to be convicted
of a crime:
A criminal act
Criminal intent

Double jeopardy
Once an individual has been tried on a criminal charge, he
or she cannot be tried again for the same charge

Forms of punishment for crimes

Monetary fines, imprisonment, or execution.

Crimes
Subdivided into felonies and misdemeanors

Felonies
Serious criminal offenses typically punished by penalties
such as incarceration in excess of 1 yr or fines in excess
0$1000

Felony examples
Murder, manslaughter, kidnapping and controlled
substance violations

Misdemeanors
Any crime that is not a felony.

Misdemeanor examples
Criminally negligent, manslaughter, failure to report certain
injuries or illnesses, failure to provide emergency services,
and violations of professional practice acts or health and
safety codes.

Civil law
Any law that is noncriminal. The individual filing suit is the
plaintiff or petitioner, and the individual/group against
which claim is made is the defendent or respondent.
Burden of proof must be a preponderance of evidence,
most civil cuits are punishable by damages in the form of
monetary compensation.

Types of civil law

Contract labor, patent, and tort (the most common for
individual claims against health-care workers).

Tort charges of malpractice/negligence (unintentional)

Can be claimed against medical imaging professionals.

Malpractice in medicine
Defined as injurious or unprofessional treatment of a
patient, and this legal definition has expanded to include
neglect

Duty
Must be proven that the imaging professional involved has
a duty to the patient to provide quality patient care that
follows appropriate professional standards

Breach of duty

It must be determined if provider has breached the duty

owed to the patient. It is critical to establish documentation
of what was done, how it was done, when it was done, and
who did it.

Causation and damage

The determination, after establishing breach of duty, that
the breach caused injury to the patient.

Medical malpractice claims restricted to these areas

Duty, Breach of duty, Causation and damage.

Institutional liability protection

The healthcare organization carries the necessary liability
insurance for its workers. The following are examples of
institutional protection:

MAG Mutual Insurance Company

A medical professional liability insurer, provides healthcare
facility liability insurance

MAG
Protection for claims alleging wrongful disclosure of
medical information (HIPAA violation)
Protection for the medical director of the facility
Coverage for technicians, nurses and medical assistants
OSHA and ADA defense coverage
Punitive damages protection

In the case of military medical workers,

Title 10 USC (Gonzalez Act) and Title 28 USC (The Federal
Tort Claims Act)
Allows the U.S. government to provide liability protection
for its medical personnel

Title 10 USC (Gonzalez Act) and Title 28 USC (The Federal

Tort Claims Act)
under the Federal Tort Claims Act, which states that activeduty members cannot sue the government for malpractice,
family members and retirees can sue for personal injury
compensation in cases of medical malpractice or other
negligence by a government employee

Personal

The radiographer purchases liability insurance. Some

professional associations provide liability insurance as a
benefit for membership

The legal concept of vicarious liability and the Doctrine of Respondeat Superior
occurs when the servant (employee) commits a tort or civil wrong within the scope of
employment and the master (employer) is held liable although the master may have
done nothing wrong. In this article, legal cases are presented to emphasize the
importance of these issues, which frequently involve physician extenders and
physicians as employers in our current health care climate. Physicians need to be
aware of this doctrine in the supervision of their staff and their day-to-day medical
practice.
Malpractice is defined as failure to provide professional services with the skill usually
exhibited by responsible and careful members of the profession, resulting in injury,
loss, or damage to the party contracting for those services. Although accountants,
lawyers, and other professionals can be charged with malpractice, the term is most
commonly associated with medical professionals.[1]
Most medical malpractice suits are filed as a result of negligence (ie, a type of tort or
civil wrong). Negligence is defined by what a reasonably prudent person would or
would not do in the same or similar circumstance. Negligence can result from the
individual medical provider or from some type of agency relationship that exists
between two or more health care providers. In general, when we discuss the
relationship between agency and malpractice, we refer to the concept of vicarious
liability and the Doctrine of Respondeat Superior.
Under agency principles, the concept of vicarious liability and the Doctrine of
Respondeat Superior occurs when the servant (employee) commits a tort within the
scope of employment and the master (employer) is held liable though the master
may have done nothing wrong.[2]
Once it is determined that the man at work is a servant, the master becomes subject
to vicarious liability for his torts.... But his vicarious liability, for conduct which is in no
way his own, extends to any and all tortious conduct of the servant which is within
the "scope of the employment."

... It has been said in general, the servant's conduct is within the scope of his
job or employment if it is of the kind which he is employed to perform, occurs

substantially within the authorized limits of time and space and is actuated at
least in part, by a purpose to serve the master.
The fact that the servant's act is expressly forbidden by the master, or is done
in a manner which he has prohibited, is to be considered in determining what
the servant has been hired to do, but it is usually not conclusive and does not
in itself prevent the act from being within the scope of employment. A master
cannot escape liability merely by ordering his servant to act carefully.[3]
Under Tennessee law, which is in accord with that of most states, a master can be
liable for his servant's negligence solely by Respondeat Superior.[4] That doctrine is
based on the principle "that the wrong of the agent is the wrong of his employer." [5]
The Doctrine of Respondeat Superior has been used in determining a medical
provider's negligence. Tennessee Code Annotated Section 29-26-115 (1980) states
that to hold a doctor or other provider liable individually for malpractice, one must
show by competent expert testimony "(1) the standard of care, (2) that the defendant
deviated from that standard, and (3) that as a proximate result of the defendant's
negligent act or omission, the plaintiff suffered injuries which would not otherwise
have occurred."[6]
Although many factors lead to a malpractice claim, in the past the major focus by
malpractice insurance carriers has been on improving communication regarding
services between individual provider and patient as well as adequately documenting
these services in the medical record.[7] However, because of the recent changes in
health care, the liability of many health care providers has been assigned as a result
of their employment relationship with a third party. A physician or other health care
provider may be found just as liable for a negative medical outcome that results from
another health care provider's negligence. Liability attaches when it is determined
that the medical provider exercised control over the negligent provider's means and
methods of work. A medical provider's liability for others is solely referred to as the
Doctrine of Respondeat Superior and when used is similar to the concept of master
and servant or employer and employee under general agency principles. [8]
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Lesson Transcript
Instructor: Jessica Schubert

Jessica is a practicing attorney and has taught law and has a J.D. and LL.M.
In this lesson, you will learn what constitutes res ipsa loquitur. You will also review examples and a
seminal case in order to determine how a court assesses whether a case meets the res ipsa loquitur
standard.

Definition of Res Ipsa Loquitur

Have you ever heard of an instance where another party is so negligent, you simply shake your head
and wonder what they were thinking? Well, res ipsa loquitur is similar to that line of thinking.
Res ipsa loquitur is Latin, and when translated directly means the thing speaks for itself. Under the
common law of negligence, the res ipsa loquitur doctrine indicates that a breach of a party's duty of

care may be inferred from the events that occurred. In other words, the negligence is so obvious that
you can tell that someone had a negligent hand in what happened.
Basic negligence principles require that to prove a case, a party must owe a duty of care and then
breach the duty of care. In other words, if one is responsible or controls something, such as property,
that person is responsible for providing a reasonable amount of care to make sure that the property
is safe. When an accident happens, it could be that the property owner breached his duty of care.
However, with res ipsa loquitur, the breach is so apparent that there is a presumption of the breach
of duty and the plaintiff does not need to provide extensive evidence, if any, of the breach. Thus, the
negligence speaks for itself.
Moreover, the doctrine indicates that the inference of the negligence is so strong that it does not
matter if the harmed party behaved negligently. Again, here, it's so obvious that there was
negligence, (even if the injured person was acting in a negligent way themselves), it will not matter;
the negligence is presumed, regardless of these circumstances. In fact, the cases frequently do not
include actual evidence of how the harmed party acted whatsoever.

Examples of Res Ipsa Loquitur

Various examples of res ipsa loquitur include the following: a piano falling from a window and landing
on an individual, a barrel falling from a skyscraper and harming someone below, a sponge is left
inside a patient following surgery or the carcass of an animal is discovered inside a food can.
All of these examples involve a presumption of the breach of duty. Thus, the negligence is so
apparent that you can assume that someone breached their duty of care. The fact that these events
occurred is enough to satisfy the court that the tort of negligence occurred. A party seeking to file a
civil law suit will simply need to demonstrate the occurrence of the event, and not have to present
evidence beyond the fact that it took place.
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Business Law: Tutoring Solution

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1 - History of American Law: Tutoring Solution
2 - Sources of Law: Tutoring Solution
3 - Constitutional Law: Tutoring Solution
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Public Law vs. Private Law: Definitions and Differences5:22

Criminal Law vs. Civil Law: Definitions and Differences8:19

Substantive Law vs. Procedural Law: Definitions and Differences5:22

The Court System: Trial, Appellate & Supreme Court6:37

The 3 Levels of the Federal Court System: Structure and Organization8:48

Overview of the US Supreme Court5:52

State Court System: Structure & Overview6:00

Long Arm Statute: Definition & Example6:19

Court Functions: Original and Appellate Jurisdiction11:23

Subject Matter Jurisdiction: Federal, State and Concurrent6:12

Jurisdiction over Property: Definition & Types5:45

What is the Jurisdiction of the Supreme Court?5:56

How Venue is Determined for a Court Case8:02

Procedural Law: Definition & Example

Res Ipsa Loquitur: Definition, Examples & Cases4:11

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Threshold Requirements: Standing, Case or Controversy & Ripeness6:16

Pretrial Pleadings & Service of Process in Civil Litigation5:37

Defendant's Response & Motions in Civil Litigation7:46

Jury Trial and Selection in Civil Litigation8:15

Delivering a Verdict in Civil Litigation6:19

Civil Appeals Process: Parties, Briefs & Oral Arguments5:50

Alternative Forms of Dispute Resolution: Negotiation, Mediation & Arbitration7:00

Constitutional Requirements of a Criminal Trial7:54

Writ of Habeas Corpus & Reasonable Doubt in a Criminal Trial7:16

Preliminary Injunction: Definition & Example

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RES IPSA LOQUITUR

The Latin term res ipsa loquitur translates to the thing speaks for
itself, and is used in the U.S. legal system to refer to a doctrine of
law in which an individual is assumed to have been negligent
because he had exclusive control over the incident that caused the
injury ordamages. This assumption may be made even without
specific evidence of negligence, as the accident, injury, or damages
would not have occurred in the absence of negligence. To explore
this concept, consider the following res ipsa loquitur definition.

Definition of Res Ipsa Loquitur

Pronounced
rayz ip-sah loh-quit-her
Noun
1.

A rule of law in which negligence is presumed when the object

or situation which caused injury or damage was under his or her
control, and the damage could not have happened had
negligence not occurred.

Origin
1650-1660

Latin

Use of Res Ipsa Loquitur

The doctrine of res ipsa loquitur may be used as a rebuttal
presumption when a defendantaccused of negligently causing
injury or damages asserts there is no proof of his involvement or
negligence. When an individual files a civil lawsuit seeking payment
for damages caused by the defendants negligence, he must prove
to the judge or jury that:
1.
2.
3.

The defendant had a duty to perform in a certain manner

The defendant breached that duty or performed negligently
The defendants breach of duty caused the plaintiffs damages

In the event the defendant denies having acted negligently, the

plaintiff may, according tores ipsa loquitur, rebut the defendants
claim, pointing out that the incident could not have occurred unless
there was some negligence.
For example:
Eleanor walks her dog, Sadie, several blocks to the dog park every
afternoon around 4 p.m. On Tuesday, as Eleanor and Sadie were
passing a neighbors house, his husky charged out from the side of
the property and attacked Sadie. Another neighbor helped get the
husky off Sadie, though she was seriously injured, and Eleanor had
been bitten twice.
When Eleanor presented her veterinary and medical bills to the
dogs owner, he refused to pay, saying he doesnt know whether it
was really his dog that attacked the pair, and that his dog is always
locked in the back yard. When Eleanor takes her claim to small
claims court, suing the neighbor for the $4,018 in medical and vet
bills, the neighbor states that he is diligent in keeping his dog in the

back yard, and so someone must have let it out, which is not his
fault.
The judge rules in Eleanors favor, and awards her the full amount of
damages, explaining to the defendant that, even though there is no
proof that he personally let the dog out, he is always responsible for
keeping the dog safely confined. According to the doctrine of res
ipsa loquitur, the incident could not have happened without
negligence, and so the responsibility belongs to the defendant.

Elements of Res Ipsa Loquitur

Using the principle of res ipsa loquitur in a civil lawsuit requires the
plaintiff to prove several specific elements existed at the time of the
incident. These include:
1.

The injury or damages sustained could not, under ordinary

circumstances, occur without negligence on the part of the
defendant.
2. The object or occurrence that caused the injury or damages
was within the defendants exclusive control.
3. The incident did not occur due to any voluntary action of, or
participation by, the plaintiff.
4. The defendants explanation of non-negligence does not
adequately explain the plaintiffs injury or damages.

Meeting the First Element of Res Ipsa Loquitur

Certain circumstances exist which leave little to no doubt as to the
defendants negligence or culpability for the harm suffered by the
plaintiff. This may be proven in one of three ways:
1.

The injury or damage itself proves blatant or obvious

negligence, such as a surgical team leaving instruments inside a
patients body.

2.

Societys general experience and observation are adequate to

support the claim of negligence, such as a surgeon performing a
hysterectomy on a patient who only consented to having her
tubes tied.
3. Expert testimony strongly suggests that the injury could only
have been caused by negligence, such as an experienced
surgeon testifying that, having performed more than 800
appendectomies, he has never damaged a patients liver, which
is not located near the appendix, nor does he know of any of his
colleagues who have caused injury to a patients liver during an
appendectomy.

Meeting the Second Element of Res Ipsa Loquitur

The requirement that the circumstance, event, or object that caused
the plaintiffs injury or damages be under the
defendants exclusive control has been modified over the years, as
proving exclusive control can be quite difficult. The less rigid
requirement of this element ofres ipsa loquitur requires that
evidence essentially eliminates, to a great degree, other possible
causes or other responsible parties, for the injury or damages.
For example:
Amy hired a landscape company to install a sprinkler system in her
yard, as well as a faucet on the side wall of the home. Several days
after the job was done, Amy used the faucet for the first time, when
she attached a drip hose, turned the faucet on low as instructed by
the landscaper, and left the drip line to water her trees for about two
hours while she went shopping. When Amy returned home that
afternoon, she found her entire back and side yards flooded, with
water streaming from the faucet where it connected to the house.
The landscaping company claims the faucet worked properly when it
was installed, and that Amy had no proof that they did anything

wrong, or that it was their fault the faucet leaked. In spite of the
landscapers denial of responsibility, there is little reason to believe
someone else could have been responsible. Res ipsa loquitur holds
that it is more likely than not that the faucet had been installed
incorrectly, and that the landscaping company should be responsible
to pay for Amys damages.

Meeting the Third Element of Res Ipsa Loquitur

The third element of res ipsa loquitur involves showing that the
plaintiff did nothing to contribute to his own injury or damages.
For example:
Rolands car spun out of control after he hit a rough area where road
construction was under way, finally stopping when it slammed into a
utility pole at the side of the road. Roland, who was seriously injured,
claims there should have been a sign warning him of the extreme
rough condition of that part of the road, even though the
construction zone had been clearly marked a half mile back, and the
proper safety signs, cones, and other equipment were being used.
At trial, testimony of three witnesses and a police officer show that
Roland had been traveling in excess of 60 mph through the
construction zone, where a temporary speed limit of 30 mph was
clearly posted. Rolands own negligence contributed to the accident
and his injuries, therefore he cannot hold the construction company
responsible for damages.

Meeting the Fourth Element of Res Ipsa Loquitur

The fourth element of res ipsa loquitur recognizes that a defendant
can overcome a res ipsa loquitur claim by presenting evidence that
a non-negligent occurrence fully accounts for the plaintiffs injury or
damages. In the event the defendants explanation in such a

situation does not add up or fully explain the plaintiffs damages,

this defense may fail.

Res Ipsa Loquitur vs. Prima Facie

The term res ipsa loquitur is frequently confused with the
term prima facie, though there is a significant difference between
the two as used in the legal system. Res ipsa loquitur refers to a
situation in which the facts of a case make it self-evident that the
defendants negligence caused the plaintiffs injury or
damages. Prima facie, which means at first glance, refers to the
fact that enough evidence exists, if taken at face value, to file
charges or pursue a legal action.

Res Ipsa Loquitur in Practice

The principle of res ipsa loquitur can be applied in a variety of
situations in which an individual or entity is accused of negligently
causing someones injury or damages.

The Stray Barrel of Flour

In 1863, as a man named Byrne was strolling past Broadles flour
shop, a barrel of flour rolled out of a window overhead and landed
on him, causing significant injury. Byrne filed a civil lawsuit against
the flour shop, claiming it had been negligent in failing to keep the
barrel contained. At trial, an eyewitness testified that he had seen
the barrel fall from Broadles window and strike Byrne, though he did
not see the cause of the barrels fall.
Broadle, owner of the flour shop, asked the court to dismiss Byrnes
case, as he had no evidence of negligence. Although there was no
evidence that Broadle or any of his employees directly took any
action that resulted in the plaintiffs injuries, the court eventually

held that Broadle had a duty of care to control the contents of the
warehouse. In addition, Broadle had exclusive control over the
barrel, and he should have installed some safety measures to
prevent just such an occurrence.

Related Legal Terms and Issues

Civil Lawsuit A lawsuit brought about in court when one

person claims to have suffered a loss due to the actions of
another person.
Damages A monetary award in compensation for a financial
loss, loss of or damage to personal or real property, or an injury.
Defendant A party against whom a lawsuit has been filed in
civil court, or who has been accused of, or charged with, a crime
or offense.
Negligence Failure to exercise a degree of care that would
be taken by another reasonable person in the same
circumstances.
Plaintif A person who brings a legal action against another
person or entity, such as in a civil lawsuit, or criminal
proceedings.

The Doctrine of Foreseeability:

Auto Accidents & Accident Law
Posted November 28th, 2014 by admin & filed under Auto Accidents .

An automobile accident can be a nightmare for all involved. However, when it happens out of
the blue, you may have a significant worry, in addition to the pain and the medical bills:
depending on the situation, if you are injured in a freak accident, the defendant may wind up
not being held liable as a result of the doctrine of foreseeability.
Foreseeability in Tort Law

Foreseeability is a core concept in tort law, especially in negligence. It generally speaks to the
issue of proximate cause, which is one of the pillars that must be proven for a negligence case to
be able to win in court. Proximate cause is defined as being the primary cause of an injury, even
though it may not be the closest cause in time to the actual harm done to the plaintiff. The
proximate cause of a plaintiffs injury must be foreseeable. If it is not, the plaintiff cannot
recover.
Common sense dictates that someone should not be held responsible for something they could
not reasonably anticipate. In auto accidents, reasonable events to anticipate might include
someone running a stop sign, or wet weather affecting the grip of ones tires on the road.
Unforeseeable events would be more akin to, for example, lightning striking the road and
cracking the pavement so cars are forced to swerve. In an extreme, something like that might
come to someones mind, but legal foreseeability deals only with the extent to which something
can be foreseen that is, how far one can reasonably conjecture.
Subjective vs. Objective
In order to assess foreseeability in your case, you must ask two questions. Firstly, was the event
in question for example, a lightning strike in the middle of the road foreseeable to the
defendant? If it was, then you have a good case for establishing proximate cause. (If the event in
question was foreseeable to the defendant, they ought to have taken steps to prevent it
happening.)
If the event was not foreseeable to the defendant, you have to ask a second question was it
foreseeable to a reasonable person? If it was, the defendant may still be held liable, even if they
did not personally foresee it. For example, if a defendant is texting and driving, they may not
foresee an accident that stems from their not watching the road. However, an objective bystander
would likely foresee that an accident was highly probable. Thus, the defendant could still be held
liable. An unlikely risk is still foreseeable if there is any degree of likelihood.
The type of harm must also be foreseeable. If a pregnant woman trips while walking and lands
on her backside, it is reasonable to assume she might suffer bruises or broken bones. It is not
foreseeable that she might suffer a miscarriage. A general cause of action covering any and all
manner of harm to a patient is simply not granted by the courts; the proverbial slippery slope
toward universal liability would simply be too great.
Get Help In Your Auto Accident Case

If you or a loved one has been the victim of an auto accident, the car accident attorneys
at Callihan & Syracuse can help. We have years of experience in accident law, and we work hard
to get our clients what they are rightfully owed. Contact our North Charleston office today for a
free consultation.

In most personal injury cases, the answer to the question "Who was at fault?"
comes down to figuring out who was negligent.
Negligence is the failure, on the part of the person causing the injury, to use
the reasonable amount of care that is required in a particular situation. In
order to prove negligence, you have to establish that the person causing the
injury was not only the actual cause of the injury, but also the proximate cause
(or legal cause), of the injury. (See Understanding Negligence for more detail).
In order to be liable for negligence, the type of harm that occurred must have
been foreseeable. However, the extent of the harm is not limited by what was
or was not foreseeable. In this article, well discuss some of the issues that
may arise with respect to proximate cause and foreseeability, when you're
trying to prove fault in a personal injury case.

What is Foreseeability?

Foreseeability is the leading test that is used to determine proximate cause.

The foreseeability test basically asks whether the person causing the injury
should have reasonably foreseen the general consequences that would result
because of his or her conduct.

Foreseeability and Proximate Cause

The law limits the scope of liability based upon the foreseeability of the type of
the harm and the manner of the harm, but not the extent of the harm. In this
section, we'll explain the distinctions.
Unforeseeable Type of Harm. A person who causes injury to another is not
liable if the type of harm does not foreseeably flow from the negligent act.
For example, if Damon drops a glass bottle on the floor and does not clean it
up, Damon would be liable for the injuries caused to anyone who cut

themselves on the glass. However, if a freak fire is somehow caused by

sunlight that is magnified through the broken glass, it is arguable that Damon
would not be liable for injuries caused by the fire because they are not a
foreseeable type of harm that would flow from the negligent act. In other
words, a fire is not a foreseeable result that might stem from leaving shards of
glass on the ground.
Unforeseeable Manner of Harm. A person who causes injury to another
person is not liable for a superseding cause when the superseding cause itself
was not foreseeable. In such a situation, it is said that the superseding act
breaks the causal chain between the initial negligent act and the injury. That
means the person who committed the initial negligent act will be relieved of
liability.
For example, if David left a candle burning in his apartment while he was at
work, and, subsequently, a burglar broke into his apartment and knocked the
candle over, burning down the entire building, David would likely not be liable
for injuries sustained because the burglar was an unforeseeable, superseding
cause. In reality, the issue would be argued by both sides of the case -- the
people who suffered losses from the fire arguing that the burglar's presence
was foreseeable, and David arguing that it was not.
Other examples of superseding causes that are usually deemed
unforeseeable:
acts of God (i.e., earthquakes)
criminal acts of third persons (i.e., burglary), and
intentional torts of third persons (i.e., assault, battery, false
imprisonment).
Examples of superseding causes that are typically deemed foreseeable (so
that the defendant does not escape liability):
harm caused by rescuers (i.e., firefighters or other people that come to
the injured persons aid)

 ordinary negligence of health care providers (i.e., doctors and nurses),

and
disease or subsequent injury that is sustained as a result of the injured
person being in a weakened condition.
Unforeseeable Extent of Harm. A person who causes injury to another
person is liable for the full extent of the harm, whether or not the extent of the
harm is foreseeable. For example, if Dallas is negligently driving through a
small, suburban town and collides with Pariss Ferrari, Dallas is liable for the
full amount of damage caused to the car, despite the fact that it would not be
foreseeable to see such a car driving through a small, suburban town.
The "Eggshell Skull" Rule. The eggshell skull rule states that you take your
victim as you find them. So, if the accident described above would normally
only cause a few thousand dollars worth of harm, but Paris suffers from brittle
bone disease and requires hundreds of thousands of dollars worth of medical
treatment as a result of the accident, Dallas is liable for the full amount of the
injury.
See our section on Fault and Liability for more on how this works in a personal
injury case.
A Force Majeure clause (French for "superior force") is a contract provision that
allows a party to suspend or terminate the performance of its obligations when
certain circumstances beyond their control arise, making performance
inadvisable, commercially impracticable, illegal, or impossible. The provision may
state that the contract is temporarily suspended, or that it is terminated if the
event of force majeure continues for a prescribed period of time.
The list of events to be included is a matter of negotiation between the parties. A
typical list of force majeure events might include war, riots, fire, flood, hurricane,
typhoon, earthquake, lightning, explosion, strikes, lockouts, slowdowns,
prolonged shortage of energy supplies, and acts of state or governmental action

prohibiting or impeding any party from performing its respective obligations

under the contract. So if, for example, a hurricane occurred that shut down a
port, the seller planning to ship its goods through that port would not be liable
for late delivery of the goods.
In the absence of a force majeure clause, parties to a contract are left to the
mercy of the narrow common law contract doctrines of "impracticability" and
"frustration of purpose," which rarely result in excuse of performance.
As such, the following elements should be addressed in a force majeure clause:

Definition of force majeure events

What happens when an event occurs

Who can suspend performance; and

What happens if the force majeure event continues for more than a specified
period of time

Clause Language:

1.1. Force Majeure. A party shall not be liable for any failure of or delay in the
performance of this Agreement for the period that such failure or delay is due to
causes beyond its reasonable control, including but not limited to acts of God,
war, strikes or labor disputes, embargoes, government orders or any other force
majeure event.

Discussion
Force majeure is defined generally as any event or condition, not existing as of
the date of signature of the contract, not reasonably foreseeable as of such date
and not reasonably within the control of either party, which prevents, in whole or
in significant part, the performance by one of the parties of its contractual
obligations, or which renders the performance of such obligations so difficult or
costly as to make such performance commercially unreasonable.
Under most national laws, force majeure events must meet four criteria: (1) the
event must be external to the contract and the parties; (2) the event must render
the partys performance radically different from what the parties originally
contemplated; (3) the event must have been unforeseeable; and (4) the
occurrence of the event must be beyond the control of the party seeking to use
force majeure as an excuse for non-performance. Force Majeure Clauses: Buried
in the Boilerplate But Important, Mary K. McCormick.
Courts tend to interpret force majeure clauses narrowly; that is, only the events
listed and events similar to those listed will be covered. For example, while acts of
terrorism might be a specified force majeure event, it does not necessarily follow
that a court would also excuse a partys performance based on "threats" of
terrorism. Thus, it is especially important to specify any types of circumstances
that you anticipate could prevent or impede your meeting from being
held.Understanding Force Majeure Clauses, Janice M. Ryan.

FORCE MAJEURE
A French term that literally means a superior or irresistible power,
force majeur is used in the legal system to refer to natural and

unavoidable catastrophes that interrupt the expected course of

events. Force majeure clauses are often found in contracts and
insurance policies to protect the parties in the event duties cannot
be performed due to causes outside the parties control. To explore
this concept, consider the following force majeure definition.

Definition of Force Majeure

Noun
1.
2.
3.

Greater, superior, or irresistible force.

An event that cannot be reasonably anticipated or controlled.
An unexpected, disruptive event that may excuse a party from
performing duties under a contract.

Origin
1880 French

Events Considered Force Majeure

A force majeure clause in a contract essentially releases both
parties from obligation or liability when a circumstance beyond the
parties control occurs preventing fulfillment of the contract. Such
circumstances include war, riot, crime, or strike, as well as any
event considered an act of God, such as an earthquake, hurricane,
tornado, flooding, or volcanic eruption. In many cases where force
majeure becomes an issue, the partys duties under the contract are
only suspended during the event.
Some extraordinary events, however, excuse both parties from
fulfilling the contract permanently. For example, if Bob and Mary
entered into an agreement to purchase a house from Sam, but the
house was destroyed by a tornado prior to closing, all parties would
be released from the agreement. Bob and Mary would not be

required to make good on their promise to purchase the property,

and Sam would not be required to come up with a house to sell to
Bob and Mary.

Force Majeure in Contract

Negotiations
Because force majeure relieves a party of its duties under a
contract, the issue of specifying exactly what may be considered an
event under force majeure is critical in negotiating the contract. It
may be important for a party to resist efforts of the other party to
include events that, practically speaking, should be at that partys
risk. For example, in an oil supply agreement, the oil company may
seek to include supply risk as a force majeure event. The oil
company should, however, have already done extensive analysis of
its oil reserves and production forecast before engaging in contract
negotiations to deliver any oil.

Acts Not Regarded as Force

Majeure
While the interpretation of force majeure may be stretched to cover
such issues as labor strikes and breakdown of vital machinery, either
of which may temporarily excuse a party from performance, such
events as bad weather, funerals, sporting events, or other normal
life events are not valid excuses under the law. The reasoning
behind this is that these are normal occurrences that temporarily
interrupt life and work, and the possibility of such an interruption
should be considered by the parties in making a contract. In any
case, a party seeking protection for non-performance under force
majeure must prove he made a reasonable attempt to minimize
delay or damages due to unexpected, yet foreseeable events.

Example Force Majeure Clause

While the specific events included in a force majeure contract clause
are up to the parties, there are a number of events that are
commonly used. When creating such a clause it is important to not
only define the events covered, but what will happen in the event
one of the events occurs, which party can suspend performance or
terminate the agreement, and what happens in the event the force
majeure event continues for a lengthy period of time.
Example:
A party shall not be held liable for failure of or delay in performing
its obligations under this Agreement if such failure or delay is the
result of an act of God, such as earthquake, hurricane, tornado,
flooding, or other natural disaster, or in the case of war, action of
foreign enemies, terrorist activities, labor dispute or strike,
government sanction, blockage, embargo, or failure of electrical
service. The non-performing party must make every reasonable
attempt to minimize delay of performance. In the event force
majeurecontinues longer than 120 days, either party may terminate
the Agreement, repaying the full amount of the deposit within 10
days of termination notice.

Force Majeure vs. Impossibility

In contract law, impossibility provides a party with an excuse for
failing to perform duties under a contract due to a change in
circumstances that makes performance actually impossible to
accomplish. For example, if Mr. Jones contracts to pay contractor Joe
to paint his house on June 1st, but Mr. Jones house burns down on
May 20th, both parties are excused from their duties under the
contract, as it is now impossible to paint the house.

More and more often, the doctrine of impossibility is also cited

when performance under a contract has, due to an unexpected
change in circumstances, made performance excessively difficult or
costly. This, historically, has been referred to as the doctrine of
impracticability. This slight shift in functionality of the law has led
to a bit of confusion on the topic of excused non-performance.

Force Majeure and the Hell or

High Water Clause
A clause sometimes included in a contract for the purpose of limiting
the use of force majeure and impossibility excuses is the Hell or
high water clause. Named from the long-used colloquial phrase, the
clause specifies that certain duties under the contract must be
performed come Hell or high water, which is to say, regardless of
any difficulties that may arise.

Related Legal Terms and Issues

Contract An agreement between two or more parties in
which a promise is made to do or provide something in return for
a valuable benefit.

Performance The fulfillment of a promise or obligation as

required by the terms of a contract.

Constitutional Law:
Freedom of speech
Right to a fair trial
Right to work, education, health and housing

COMMON LAW
Common law is a term used to refer to law that is developed through
decisions of the court, rather than by relying solely on statutes or
regulations. Also known as case law, or caseprecedent, common

law provides a contextual background for many legal concepts.

Common laws vary depending on the jurisdiction, but in general, the
ruling of a judge is often used as a basis for deciding future similar
cases. To explore this concept, consider the following common
law definition.

Definition of Common Law

Noun
1.

Laws that are based on court or tribunal decisions, which

govern future decisions on similar cases.

Origin
1300-1350

Middle English

What is Common Law

Common law often refers to laws that are based on the customs and
principles of society, which are used in court case decisions in
situations not covered by civil law statutes. These decisions set a
precedent that must be applied to future cases on the same subject.
Common law only refers to civil cases, and has no bearing on
criminal court cases.
While the term common law is used to refer to principles applied to
court decisions, a common law system refers to a legal system that
places great weight on judicial decisions made in prior similar cases.
In the United States, common law, or precedent, is used to help
ensure similar results in similar cases. Courts are bound by the
decisions of higher courts on similar matters, by a principle of stare
decisis. If the court determines a case to be fundamentally different
from prior cases heard by other courts, its decision is likely to create
precedent for future cases on that subject.

History of Common Law

Common law is a term that was originally used in the 12th century,
during the reign of Henry II of England. The ruler established secular
tribunals, with the goal of establishing a unified system of deciding
legal matters. The Kings judges in these tribunals respected the
decisions of one another, such decisions creating a unified
common law throughout England. The precedent set by the courts
through the 12th and 13th centuries were often based on tradition
and custom, and became known as a common law system.
Common law in the United States dates back to the arrival of the
colonists, who brought with them the system of law with which they
were most familiar. Following the American Revolution, the newly
formed states adopted their own forms of common law, separate
from the federal law.

Systems of Common Law vs. Civil

Statutory Law
Systems of common law and civil statutory law differ in many ways.
Rulings in a common law system rely heavily on prior decisions
made in similar cases. Rulings in a statutory law system are based
primarily statutory laws. This makes the method by which laws are
developed and enacted. While common laws develop over time as
judicial decisions are made, and used in future decisions, they
generally do not become statutory laws enforceable by law
enforcement or enforcement agencies. It takes time for the influence
of common laws to spread and become common knowledge.
Statutory laws, on the other hand, rely on the legislative process, in
which laws and ordinances are developed and voted on by
representatives of the people. Once these new laws go into effect,

they are enforceable by law enforcement or governmental agencies,

and the letter of the law is usually applied in court. Because
common law is based on judicial opinion, parties to a civil
lawsuit may draw comparisons between precedent-setting cases.
Statutory law does not allow for comparisons. For example, civil
statutory laws govern such things as deadlines and statutes of
limitations, allowed monetary damages, and sentencing.
Many countries rely on either the common law system, or a civil
statutory law system. In the United States, the judicial system is a
combination of the two, with statutory laws being applied where
appropriate, while requiring the courts to adhere to precedent in
determining cases not governed by statute.

Federal Common Law

The use of common law by federal courts is limited to deciding
federal cases. While, in certain circumstances, federal court may
have jurisdiction to hear a case under state law (known as diversity
jurisdiction), it cannot create or apply federal common law or
precedent to deciding a state law case. Rather, a federal judge
hearing such a case must turn to state law precedent.

Supreme Court Ruling on Common

Law in Diversity Cases
On July 27, 1934, Harry Tompkins was walking on a narrow footpath
by the Erie Railroad tracks in Hughestown, Pennsylvania. As a train
approached, something protruding from one of the railcars struck
Tompkins and knocked him down, causing his arm to be crushed
beneath a train wheel. The train was operated by a corporation
registered in New York, so Tompkins filed his civil lawsuit in federal
district court.

The district court judge who heard the case followed current federal
law of the time, in applying federal common law to the case, rather
than common law of either the state of Pennsylvania or New York.
Federal common law applied a standard of ordinary negligence
when determining what level of care the railroad owed to individuals
who are not employed by the railroad. Common law in the state of
Pennsylvania, where the accident occurred, specifies that the
railroad owes a wanton negligence duty of care to trespassers,
which requires proof of a greater level of negligence. The court
found in Tompkins favor, and awarded him damages.
Prior to the case of Tompkins v. Erie Railroad, it had already been
determined that, when a case is heard in federal court in diversity,
meaning that the case is filed in federal court because it crosses
state jurisdictions, the states statutory law must be applied. It had
also been ruled, however, that a federal court hearing a case in
diversity was not required to apply the states common law, or
precedent, to the case.
The railroad appealed the matter to the appellate court, then to the
U.S. Supreme Court. After reviewing the case, the Supreme Court
ruled that the federal district court did not have the authority to
create federal common law when reviewing state law claims in
diversity, but must apply state common law.
This topic was quite important, as it was an effort by the Supreme
Court to address the issue of forum shopping, where plaintiffs in
cases that cross jurisdictions take their case to the state or
jurisdiction whose laws would give them the greatest advantage.
With this decision, the Court overturned federal civil procedures,
creating a mandate that federal common law should be applied only
to strictly federal cases, and not to diversity cases.

Related Legal Terms and Issues

Affirm To uphold a lower courts decision.

Binding Precedent A rule or principle established by a
court, which other courts are obligated to follow.
Civil Lawsuit A lawsuit brought about in court when one
person claims to have suffered a loss due to the actions of
another person.
Defendant A party against whom a lawsuit has been filed in
civil court, or who has been accused of, or charged with, a crime
or offense.
Diversity Jurisdiction Jurisdiction of a U.S. federal court to
hear a case between residents of different states, if it meets a
specified monetary threshold.
Jurisdiction The legal authority to hear legal cases and
make judgments; the geographical region of authority to enforce
justice.
Plaintif A person who brings a legal action against another
person or entity, such as in a civil lawsuit, or criminal
proceedings.
Stare Decisis The principle that cases based on similar facts
should be decided in a consistent manner, with similar results.