Thursday, October 1, 2009

Tort Law: In the following scenario, what framework should I go about using in identifying business/legal issues to identify, explain and provide a...

The key question in this tort case will be who was at fault in the incident, and therefore who must pay for the damage and injuries caused. This is more important in some states than others; in "no-fault" states such as Michigan, insurance is required to provide certain coverage for everyone regardless of a determination of fault, while in "fault" states such as California each person's liability is strongly dependent upon who is considered at fault.

Key concerns for determining fault include negligence, intent, and strict liability.

Strict liability is the simplest; if you are defined by law or contract to have liability, then you have liability, even if you did everything right. This would likely be the case if the driver was carrying some hazardous substances that are strictly regulated, but it is unlikely otherwise.

Intent means that the harm was caused on purpose, making this a form of assault; that doesn't appear to be the case here.

That leaves only negligence. Was the driver or the pedestrian careless? Was either one violating the law at the time, in such a way that contributed to the injury?

This one could actually be argued both ways. The pedestrian was walking against a red light, suggesting that their negligence might make them at fault. (The saying "pedestrians always have the right of way" is not strictly true.) But if the driver was in any way careless about watching for them and failing to yield, the driver or the company that they were working for could still be held liable. The result of this tort would depend on very precise details of the circumstances. But from what was given, it sounds like it is probably not the driver's fault, and thus neither the driver nor the company they work for would be held liable.

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