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Personal Injury Newsletter

• Defendant's Wrongful Use of Process
• The Fellow-Servant Rule
• Tort Liability of Municipalities
• Defamation of a Public Figure
• False Imprisonment

Defendant's Wrongful Use of Process
 
It is a tort to use the civil or criminal form of process to primarily seek a result other than that for which the form of process was intended. The conduct that encompasses the abuse of process is a defendant's wrongful use of the process for an ulterior purpose and some willful act in the use of the process to accomplish that ulterior purpose.

For example, if a defendant obtains a judgment against a plaintiff for a debt, and the plaintiff subsequently pays the debt, the defendant is liable for abuse of process if he takes out an execution on the judgment.

Abuse of process does not involve the wrongful bringing of a suit, which is the tort of malicious prosecution. Rather, it involves the improper use of the process after the suit has properly begun. Abuse of process also does not cover situations in which a defendant has an incidental motive of spite or an ulterior purpose to bringing the action if the action is brought primarily for the purpose for which the form of process was intended. Thus, a person who prosecutes an accused based on the accuser’s unlawful act is not abusing the process merely because he incidentally does not like the accused.

The usual case of abuse of process occurs with relation to extortion, whereby a person uses the process to put pressure upon another to compel him to pay a debt not related to the action.

The defendant will be liable to the plaintiff for any harm caused by the abuse of process.

The Fellow-Servant Rule

Traditionally, the "fellow-servant rule" barred an employee's personal injury action against his employer if the employee's injury was caused by a co-worker. For example, an employee works in an employer's sawmill. One of the employee's co-workers accidentally bumps into the employee, causing him to step backward and place his hand onto an electric saw. The employee files a personal injury action against the employer, claiming that the employer negligently failed to equip the electric saws with finger guards. Under the fellow-servant rule, the employer would not be liable for the employee's injury if the employer could prove that the employee's injury was caused by his co-worker rather than the absence of a finger guard on the saw.

Today, the fellow-servant rule is not a defense to a worker's compensation claim. Therefore, in the example above, the employee could recover workers' compensation benefits even if his co-worker caused his injury.

However, the fellow-servant rule may still apply to cases that do not involve workers' compensation. In a personal injury action, the employer may still escape liability if he can prove that the employee's injury was caused by the co-worker rather than the absence of a finger guard on the saw.

TORT LIABILITY OF MUNCIPALITIES

Governments: Local Governments: Claims By & Against

When a municipality is acting within its governmental capacity or is performing a governmental function, such as providing water or utility services, it is generally not liable for negligence with regard to the governmental function. However, if the municipality is acting in a proprietary manner, that is, when it owns or maintains real or personal property, the municipality may be liable for the negligence of its representatives, agents and employees.

In order to recover damages from a municipality that is performing a proprietary function, a plaintiff must prove that his or her injuries were caused by negligence that was the result of the performance of the proprietary function. The plaintiff must prove that the negligence was the result of the municipality's ownership or maintenance of real or personal property, such as the operation of the municipality's motor vehicles or a dangerous condition that existed on the municipality's real property.

A municipality is not an insurer of public safety. A municipality is only required to exercise ordinary care in its ownership of real and personal property. A plaintiff must show that the municipality caused or created a dangerous condition, that the municipality had actual knowledge of the dangerous condition, or that the municipality should have discovered or remedied the dangerous condition because of the length of time that the dangerous condition existed.

A municipality may be subject to strict liability for its proprietary functions. If the municipality conducts an abnormally dangerous activity, it will be strictly liable for a plaintiff's injuries regardless of whether the municipality or its employees are negligent.

Although a municipality is vicariously liable for the activities of its representatives, agents, and employees, it is not liable for the activities of its independent contractors. However, if an independent contractor is engaged in an abnormally dangerous activity or if the municipality's duty could not be delegated to the independent contractor, the municipality will be vicariously liable for the activities of the independent contractor.

The most common types of actions against municipalities are actions involving the condition or repair of the municipalities' roads, sidewalks and buildings. Other common types of actions include motor vehicle accidents with vehicles that are owned by the municipalities and that are being driven by the municipalities' employees.

Defamation of a Public Figure

A lawsuit for defamation has the following basic elements: (1) making a false statement (2) about a person (3) to others, and (4) actual damages (if the harm to the person is not apparent). There is a fifth element when the person is a public official or public figure. The person who made the statement has to have made the statement with a known or reckless disregard of the truth. This article discusses the fifth element, defamation of a public official or public figure.

Private vs. Public

There is no fifth element to prove if the person allegedly defamed is a private individual. A private individual is a person who does not hold a public office relevant to the allegedly defamatory statement. A private individual is a person who does not act or work in a public environment relevant to the allegedly defamatory statement. A private individual is a person who is not involved in an event of public interest.

There is a fifth element to prove if the person allegedly defamed is a public official. A public official is a person who holds a public office relevant to the allegedly defamatory statement. There is a fifth element to prove if the person is a public figure. A public figure is a person who acts or works in a public environment relevant to the alleged defamatory statement, or a person who is involved in an event of public interest relevant to the alleged defamatory statement. A public official or public official must prove the element required by the United States Supreme Court's interpretation of the First Amendment of the Constitution of the United States.

New York Times v. Sullivan

In this landmark case, a public official alleged that a newspaper libeled him by falsely alleging that he had participated in a "wave of terror" against certain civil rights activists. The trial court found in favor of the public official. The United States Supreme Court reversed the judgment of the trial court and sent the case back to the trial court for further proceedings. The Supreme Court pointed to "a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." The court said that constitutional law "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves the statement was made with 'actual malice' -- that is, with a knowledge that it was false or with reckless disregard of whether it was false or not."

The New York Times v. Sullivan standard was later extended to public figures. Thus, in addition to the elements that a private individual must prove, a public official or public figure must also prove that the statement was made with actual malice. Actual malice is a known or reckless disregard of the truth.

False Imprisonment

Have you ever been detained for questioning at a department store because an item in your shopping bag set off an alarm at the exit? If so, you may have considered suing the store for false imprisonment. However, in most cases, you would lose.

What is false imprisonment?

False imprisonment occurs when a defendant intentionally causes a victim to be confined to a bounded area.

Confinement Methods

Confinement of a victim may occur by:

• Physical barrier
• Physical force against the victim or his or her family
• Threats of physical force (future threats are insufficient)
• Failing to fulfill a duty to assist the victim in leaving
• Abusing legal authority in detaining the victim

Location

A "bounded area" means a place in which the victim's freedom of movement is limited in all directions. If there is a reasonable means of escape, the victim is not considered confined in a bounded area.

Timing

The amount of time that a victim is restrained is irrelevant in determining whether or not a defendant is liable for false imprisonment. The amount of time will, however, be material when computing the victim's damages.

False Arrest

A victim may not maintain an action for false imprisonment if he is arrested or detained by virtue of legal process issued by a court or official. However, he may maintain such an action if the arrest is made without a warrant and is unlawful.

Privileged Arrest

Some arrests without a warrant are privileged and valid and will not support a cause of action for false imprisonment.

A police officer may make an arrest without a warrant if he has reasonable grounds to believe that a felony has been committed and that the person he arrests has committed it.

A private citizen may make an arrest without a warrant if a felony has been committed and he has reasonable grounds to believe that the person he arrests has committed it.

A police officer or a private citizen may make an arrest without a warrant for a misdemeanor if the misdemeanor was a breach of the peace and was committed in the presence of the police officer or the private citizen.

A police officer or a private citizen may make an arrest without a warrant if a felony or breach of the peace is being committed or reasonably appears about to be committed.

Detention for Shoplifting

A storeowner has the privilege to detain shoppers whom he suspects of shoplifting without being liable for false imprisonment. In order to detain a shopper for investigation, a storeowner must have a reasonable belief that the shopper is committing a theft and the detention must be conducted in a reasonable manner and for a reasonable amount of time.

Damage

A victim need not show that he suffered any actual damage in order to sue for false imprisonment.