Newsletters

The Duty of Children

Generally, the law requires a person to exercise the degree of care that a reasonably prudent person would exercise under the same circumstances. This is called "the duty of reasonable care." A person who breaches his duty of reasonable care is guilty of negligence.

A different standard applies to children. Generally, very young children are presumed to be incapable of negligence due to a lack of intelligence and experience. In a personal injury action, a plaintiff may attempt to rebut this presumption by offering evidence that the child is unusually intelligent or experienced for his or her age and that the child understood the consequences of his or her actions. Older children are capable of negligence, but they are not held to the same duty of care as adults. Older children are required to exercise the degree of care that a child of the same age, intelligence, and experience would exercise under the same circumstances. Therefore, when determining whether a child is guilty of negligence, the actions of the child are measured against persons of similar age, intelligence, and experience.

Trespass

Trespass is a physical invasion of a property owner's land. A person may be liable to the owner if he causes a trespass, even if he did not know that it was the owner's land.

Ways to commit trespass

A trespasser may be liable for trespass if he personally enters the owner's land, causes another person to enter the owner's land, causes an object to enter the owner's land, or remains on the land after his legal right to do so ends.

Intent

A trespasser may be liable if he intended to enter the owner's land with the knowledge that it was the owner's land. He may also be liable if he entered the owner's land by mistake and without knowledge that it was the owner's land, as long as he intended to enter that particular land.

What is land?

A trespasser may be liable if he causes a trespass on the land itself, in the air above the land, or in the ground under the land. For example, if a neighbor's tree hangs over an owner's land, the neighbor may be liable for trespass.

Damage

An owner is not required to prove that the trespasser caused any actual damage to the land.

Emergencies

When there is a necessity to do so, a person may enter an owner's land. However, he will be liable for any actual damages that he causes. For example, if a pilot of a plane in distress lands the plane on an owner's farm, he will not be liable for the tort of trespass, but he will be liable for any damage caused to the crops.

Torts in Boxing

Boxing is obviously a dangerous sport for participants, but spectators may be injured as well. In certain instances, spectators and participants may bring tort actions to recover for their injuries.

Premises owner's duty

The owner of a boxing arena must exercise reasonable care in maintaining the boxing arena and facilities.

Breach of duty to spectators

An owner may breach the duty of reasonable care to spectators by failing to properly maintain the seats and steps in the arena. The owner may be held to have known that spectators routinely stand on their seats during exciting moments in a boxing match, and, thus, the owner will be liable if a spectator is injured because the seat did not withstand such activity.

Breach of duty to participants

Participants may bring a tort action against an owner arising from injuries during a boxing match. For example, a participant who is struck by his competitor after the match is over may sue the owner if the owner failed in its duty to supply security to the participant.

Defense

A participant will likely be successful in defending an action in which another participant seeks recovery for injuries that he sustained during the match because participants assume the obvious risk of injury, which is the purpose of the sport.

Liability of an Airline Passenger for Providing Medical Assistance to Another Passenger

Generally, an airline passenger is not legally liable for the consequences of providing medical assistance to another passenger. The federal Aviation Medical Assistance Act of 1998 provides that a person is not liable for providing or attempting to provide assistance in the case of an in-flight medical emergency, unless the person, while rendering such assistance, is guilty of gross negligence or willful misconduct. Therefore, if a passenger renders medical assistance to another passenger, and the other passenger is injured as a result, then the injured passenger cannot recover damages from the assisting passenger in a state or federal personal injury lawsuit, unless the assisting passenger is guilty of:

(1) gross negligence, which means carelessness or recklessness that amounts to a conscious disregard for the safety of others (if the assisting passenger was intoxicated when he or she rendered medical assistance, then he or she would probably be guilty of gross negligence); or

(2) willful misconduct (if the assisting passenger intentionally injured the other passenger, then the assisting passenger would be guilty of willful misconduct).

Federal Tort Claims Act -- Overview

The Federal Tort Claims Act

Under the doctrine of sovereign immunity, the federal government cannot be sued without its permission. The Federal Tort Claims Act (FTCA) is a federal law that waives the federal government's sovereign immunity under certain circumstances.

Applicability

The FTCA applies to claims for property damage, personal injury, and wrongful death caused by the negligence of a federal government employee who is acting within the scope of his or her employment, under circumstances where a private person would be liable under state law.

Exclusivity

The FTCA is the exclusive remedy for a person who wishes to file a personal injury action against the federal government.

Notice of Claim

Under the FTCA, a person must give written notice of his personal injury claim to the government agency that is allegedly responsible for the injury. The notice of claim must be given before a lawsuit is filed and within two years after the injury. A notice of claim is a prerequisite to a personal injury action against the federal government. If no notice of claim has been given, a court will dismiss the action.

A plaintiff may file a personal injury action against the federal government within six months after the claim is denied, or six months after the notice of claim is given if the agency fails to act on the claim.

Remedies

A plaintiff may recover only money damages under the FTCA. Punitive damages are not available under the FTCA.