Glossary of legal terms

Affirmative defenses

Collateral source

GLOSSARY OF LEGAL TERMS

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Affirmative Defenses:
There are several affirmative defenses that may be raised in regards to a tort claim. An affirmative defense is a defense that may be raised by a defendant that constitutes a complete bar to a claim. One of those affirmative defenses is that of the statute of limitations. Every state has a statute of limitations for virtually every type of civil claim whether it be a tort claim, contract claim or otherwise. If the claim is not asserted within the time allowed by the statute, then the claim is deemed to be barred. The assertion of a claim is accomplished in most states by actually filing a law suit at the courthouse. Some state require actual service of the suit papers upon the defendant before the statute of limitations runs.

Another defense that may be asserted in a tort case is that of assumption of the risk. Assumption of the risk involves the plaintiff understanding the nature of the risk involved and a voluntary acceptance of that risk. For instance, if you decide to go out to the supermarket during the middle of a very bad ice storm recognizing that the roads and walkways are not navigable and while walking from your car to the store, you slip and fall, then you probably have assumed the risk since you obviously knew that there was a risk associated with going out during those weather conditions and you voluntarily chose to accept that risk.

Several states still recognize various types of immunities. That immunity may come in the form of sovereign immunity, charitable immunity or family immunity. Sovereign immunity is based upon the concept that the King cannot be sued; i.e. the sovereign or the government cannot be sued. Many jurisdictions have waived that immunity either in whole or in part. If the local and state governmental entity that you are planning on suing is deemed by state law to be immune from tort claims, then you may not be able to sue that entity at all unless they expressly choose to waive their immunity. Many governmental entities by means of state law have expressly waived their immunity either entirely or have allowed claims to be asserted against them up to certain dollar amounts. This is something that varies from state to state.

Charitable immunity is a doctrine that applies in many states to organizations that are truly charitable. A charitable organization is generally considered to be one that fulfills strictly a charitable function and does not make any attempt to collect debts. Charitable organizations may be immune from tort claims. For instance, if you were injured on the premises of the Red Cross because of some negligence on their part, depending on the law in that particular state where the Red Cross building is located, the Red Cross may well be subject to the defense of charitable immunity because they truly are a charitable organization.

There are certain states that still recognize elements of family immunity; that is, tort claims may not be asserted against parents or siblings for certain types of behavior.
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Collateral Source:
A collateral source is a source of payments of money that is literally collateral to the claim. For instance, monies that you may receive as an injured person through your health insurance policy or through the medical payments provision of your auto policy are technically a collateral source and as a general rule your receipt to those payments is inadmissible at trial. (Link to Articles Authored)
Comparative Negligence:
Comparative negligence is not recognized in any of the local jurisdictions of Virginia, D.C. and Maryland. Many states do, however, recognize the concept of comparative negligence which is dramatically different than the principle of contributory negligence. Comparative negligence simply means that if there is negligence on the part of the person bringing the claim then the overall verdict is reduced by the amount of negligence on that person’s part. For instance, if the party bringing the claim is found to be 20% negligent then the amount of the verdict is reduced by 20%. (Link to #2 of FAQ)
Contributory Negligence:
This is a concept recognized in all local jurisdictions in Virginia, D.C. and Maryland. If there is any negligence on the part of the person bringing the claim (the plaintiff) then that may be a bar to that person’s claim if it contributed to the injury. (Link to #2 of FAQ)

Different states have different ways of how they deal with negligence claims in that some of them acknowledge the concept of comparative negligence while other states are known as contributory negligence jurisdictions. In a comparative negligence jurisdiction, the negligence may be compared between the parties.

For instance, if I ran a red light and struck you while you were in an intersection but you happened to be intoxicated and laying in the middle of the intersection due to your intoxication then there obviously would be some negligence on your part. The jury would be called upon to compare the different levels of negligence. For instance in that example they might conclude that I was 50% negligent and you were 50% negligent for being intoxicated and laying down in the middle of the intersection. If the jury then determined that your total injuries were $100,000.00 you would only receive $50,000.00 because you were 50% negligent.

In a contributory negligence jurisdiction there is no comparison of negligence which means that if you were negligent even by 1% or less and that negligence was a cause of your damage, then your claim is barred and you receive nothing. Contributory negligence is a principle derived from the common law which is still recognized in some states. It is indeed a very harsh principle of law and in many instances works an injustice to people who are probably entitled to recover something for their damages but may not be entitled to 100% compensation.
Defendant:
This is the party against whom a claim is asserted; i.e., the party being sued.
Deposition:
Under the Rules of Court in most jurisdictions either party has the right to take the deposition of the other party and the deposition of witnesses. A deposition is simply a statement given under oath in response to questioning by an attorney. Depositions are normally conducted in the office of one of the attorneys involved in the case and a verbatim transcript is taken by a court reporter.
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Discovery:
Under the Rules of Court in all of the local jurisdictions both parties in civil litigation are allowed to engage in discovery which is a process of sending each other written requests for information or documents in order to discover what the other party’s case is about. Depositions are also a form of discovery. (Put link to #5 FAQ)
Expert Witness:
An expert witness is an individual who due to education, training or experience is recognized by the Court as having a high degree of expertise in a particular field. (Put link to #5 of FAQ)
Joint and Several Liability:
An important principle in terms of liability in a tort action is what is known as a joint and several liability. For instance, if I run a red light and strike you in the intersection and the vehicle that I am driving belongs to my employer then I may be liable for that act of negligence and my employer may also be liable.

The liability that is imposed there is known as “joint and several” which means that the plaintiff could sue me alone or could sue the employer alone or could sue both of us and whatever judgment the plaintiff gets against us could then be collected by the plaintiff against me solely or against the employer solely or against either one of us to the extent that we have assets to pay. Under the principle of joint and several liability each defendant is 100% liable for the judgment that is rendered. That is a principle that has been under a good deal of attack lately because it can create circumstances wherein a defendant can wind up paying more than his fair share of any judgment especially if the other defendant cannot afford to pay.

Joint and several liability is something that is well ingrained into our legal system and the rationale behind it is to make sure that the Plaintiff can obtain at least one full recovery of whatever judgment is entered. It then becomes the burden of those defendants against whom the judgment has been entered to fight among themselves as to any eventual sharing of that liability.
Malpractice Cap:
In Virginia there is currently a cap on damages in malpractice actions. The cap increases slightly each year. This cap is all inclusive, meaning that regardless of how many people are sued, the maximum amount that can be recovered is the cap. There is no medical malpractice cap in the District of Columbia. (Put link to #7 and 11 of FAQ)
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Negligence:
Negligence is a type of tort constituting unintentional misbehavior. The inadvertent running of a red light while operating a motor vehicle is an act of negligence. Likewise, a doctor failing to properly diagnose an illness that should have been diagnosed is negligence.
Plaintiff:
This is the party who brings a civil claim.
Proximate Cause:
The proximate cause of an event is the near cause as opposed to the remote cause of the event. In a medical malpractice case, in addition to proving that there was a breach of the standard of care by a doctor, the plaintiff must also show that the breach was a proximate cause of the injury of which the plaintiff complains.

For instance, in the example of the puncture of the arterial wall by the catheter, the defendant may argue that even if that was negligence the patient only had a 5% chance of survival and therefore he probably was going to die anyway, and as such, any negligence that may have been committed was really irrelevant.

This is a frequent defense raised in professional negligence claims and is frequently one that has some merit, i.e., the doctor may have been negligent, but the patient would have died anyhow. That is, even though the doctor may have been negligent, the negligence may not have been a cause of injury since the patient may have suffered that injury in any event.
Res Ipsa Loquitur:
Those of you with some knowledge of Latin may appreciate the term res ipsa loquitur. Literally this Latin term means “the thing speaks for itself”. Res ipsa loquitur is a rule of evidence that states that a jury may conclude that a defendant is negligent if in fact the plaintiff has been injured

  1. as a result of an instrumentality which is in the exclusive control of that defendant;
  2. the defendant has or should have exclusive knowledge of the way that instrumentality was used;
  3. the injury is one that would not normally have occurred if the instrument had been used properly.
To take a textbook example of that, suppose you are walking down the street and a dresser drawer falls on your head. It so happens that the dresser drawer came from the apartment window above and had been placed there by the tenant who was doing some spring cleaning and the tenant accidentally bumped the dresser drawer. Have the elements of res ipsa loquitur been met in this instance? They probably have been in that the dresser drawer was in the exclusive control of the defendant, the defendant had exclusive knowledge as to how the dresser drawer was used and finally the injury is one that would not normally have occurred if the dresser drawer had been used properly.

As long as you can prove those basic elements, you probably would be entitled to recover money against that tenant for her negligence.
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Standard of Care:
Within most negligence claims there arises an issue of standard of care. In an automobile accident case the standard of care normally is defined by the traffic regulations. For instance the traffic regulations dictate that you shall not enter an intersection on a red light. That regulation establishes the standard of care by which all persons are bound in terms of passing through an intersection.

In other contexts there may be building codes or other state or local codes that may establish the standard of care by which property owners are bound. Those codes can be the basis upon which a negligence case may be founded because they establish the standard of care to which the defendant is held. If the defendant has violated that code then that may be evidence of a breach of duty by that defendant. If that breach then resulted in damage to you then you may have a basis for a negligence claim against the property owner.

The concept of standard of care becomes especially important in certain types of professional liability claims; for instance, medical malpractice claims, legal malpractice claims or architectural malpractice claims. In those types of claims generally the plaintiff has to establish what the standard of care is. The standard of care normally is established by means of the presentation of evidence by experts in that field. For instance, if in the course of your open heart surgery the surgeon happens to penetrate your coronary artery with a catheter and you suffer irreparable damage, has the standard of care for that procedure been violated? That is not something that I could answer as a non-medical person. Nor is it something that you could answer as a non-medical person. Nor is it something that a group of jurors could answer as non-medical people unless they hear evidence from a medical expert establishing what the standard of care is.

The standard of care in that particular instance may be that the surgeon through the use of radiological instruments, should have been able to tell where his catheter was going and therefore should have known when he was about to puncture the arterial wall and therefore could have avoided it if he had been attentive to the radiological instrument that showed him where the catheter was. In that instance, the standard of care evidence presented by the plaintiff may show that the doctor was negligent in puncturing the arterial wall with that catheter.

You can rest assured that the defendant doctor will bring in his own medical expert who will refute that and who will state that there is no standard of care in this circumstance, that this was simply an unfortunate accident that happened, and that there was no negligence on the part of the doctor.
Statute of Limitations:
Most civil claims are governed by a statute of limitations which means that the claim must be filed in the Courthouse within that period of time otherwise the claim is forever barred. In regards to most injury claims, the statute of limitations is either two (2) or three (3) years depending on the local jurisdiction. (Put link to #9 of FAQ)
Subrogation:
This is a concept wherein an insurance company may recover monies paid out to its insured under an insurance policy. For instance, if your health insurance carrier pays money to you or to your health care providers as a result of an automobile accident caused by another party then that health insurance carrier may have a right of subrogation against any proceeds that you may be entitled to from your claim against that person that caused the accident. That right of subrogation means that the insurance company can recover monies that they have paid on your behalf. (Put link to #6 of FAQ)
Tort:
A civil wrong that does not arise out of any breach of contract. A tort may consist of a claim based upon negligent conduct or intentional conduct. For instance, the running of a red light in an automobile through inadvertence is an act of negligence that constitutes a tort. Punching someone in the nose constitutes an assault which is in the nature of an intentional tort. (Link to #1 of frequently asked questions)
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Vicarious Liability:
A concept within tort law that is of significant importance is that of vicarious liability. The concept of vicarious liability essentially means a principal may be liable for the conduct or the misconduct of his agents. That principal/agent relationship arises in the employment context between an employer and an employee. It may also arise in other contexts involving contractors. From a plaintiff’s point of view the concept of vicarious liability is important because it typically is that legal concept that allows for complete recovery of damages.

For instance, if you are rear-ended by a truck driven by an employee of the ABC Company, your attorney in filing a suit would file the claim against not only the driver but also the employer. If suit was filed only against the driver and it turns out that there was no insurance covering that vehicle, then whatever judgment you got against the driver may be uncollectible simply because the driver may not have the financial resources to pay the judgment. If, however, you get the judgment also against the employer, then that employer probably would have the financial resources either in the form of insurance coverage or otherwise to satisfy the judgment.

The employer in that case is liable for the conduct of the employee assuming that the employee was acting within the scope of his employment. If, on the other hand, the employee was off on a personal mission on his own while operating a company vehicle and the employer had no knowledge of that and had not consented to it, then there may not be any vicarious liability in that sense because the employee was off acting on his own and was not doing anything on behalf of the employer at the time of the collision.

The concept of vicarious liability has been the subject of a good deal of litigation over the years. For instance, suppose an insurance salesman comes into your home to sell you insurance on behalf of the XYZ Company and he presents to you his business card along with all the brochures of the XYZ Company and convinces you that based upon the extensive advertising of that Company and because of the well recognized name that this is a very reputable company to deal with and based upon that you purchase a policy of insurance and tender a check in a substantial amount. If the salesman then absconds with the money, is the XYZ Company liable for your loss?

They probably are even though that salesman may not be a direct employee of the company. The salesman in that instance may be an independent contractor but the XYZ Company is still probably going to be liable because they are the ones who gave that salesman all the trappings of authenticity, gave him the opportunity to engage in his fraudulent behavior and essentially set the whole process in motion through the use of its company name and company advertising.
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