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Duties of Care Key to Personal Injury Law

Personal injury law can be complex and confusing even for people who are familiar with it. When we meet terms like “causation” and “duty of care,” even the most savvy among us start to quail.

But personal injury law is really very simple. If you’re driving your car, walking your dog, or doing just about anything else, then you have a legal duty to take reasonable care in the circumstances. If you breach your legal duty to take reasonable care, and injury results, then you are negligent.

For example, let’s say that Jill is driving her car down the road when her cell phone rings. She picks up the phone and inadvertently swerves into your lane, striking your car. Jill had a duty to drive her car with reasonable care. When she swerved into your lane, she breached that duty. Her actions in not paying attention to the road caused damages to you. If you filed a legal case and could show these elements—duty, breach of duty, causation, and damages—then Jill’s negligence would be established. She would be liable (legally responsible) and probably have to pay you money.

This article will explore the duty to take reasonable care in different circumstances, so that you can minimize the risk that you might be liable for negligence. It will also give you some general understanding of the principles under which a lawsuit might be decided, which will be useful if you’re ever injured as a result of someone’s negligence.  

The Reasonable Person
Reasonable care is, naturally, the level of care that would be exercised by a reasonable person, that is, a person with an ordinary degree of reason, prudence, care, and foresight. The reasonable person is a legal fiction who is used to provide an objective standard of reasonable, ordinary behavior to guide the courts.

For example, a court might be asked to decide a case in which a person driving 60 m.p.h. on the highway crashed into a van. Did the driver of the car act with reasonable care? It depends on the circumstances. If the speed limit was 60 m.p.h. and it was a bright sunny day, then a jury might decide that a reasonable person would have driven at the speed limit. If so, the driver met a reasonable standard of care in the circumstances and was probably not negligent.

However, if it was a dark, wet night and there was a heavy fog, then a jury might decide that an ordinary, reasonable person would reduce his or her speed to 40 m.p.h., and a person who was doing 60 could be negligent.

When a jury is asked to decide whether a person has been negligent, the jurors will consider the evidence and arguments to determine whether the person’s actions fall short of a reasonable standard of behavior.

Property Owners

Duty to visitors

Property owners have a general duty to take reasonable care to prevent injury to anyone coming onto their property. This means that landowners must take reasonable action to correct dangerous conditions on their property. For example, if you know that one of your stairs is broken and you do nothing about the condition, then you may be liable for negligence if a person falls and injures himself.

Homeowners must also tell their guests about—or make safe—any dangerous conditions that guests are unlikely to recognize. Suppose, for example, that your guest was injured when he tripped on a throw rug. He may be able to recover from you if he can prove that you knew that other people had tripped over it, and that he was unlikely to realize its danger. He could argue that you had a duty to remove the rug, or secure it to the floor with tape or tacks.

 

Duty to children

The law generally places a greater burden on landowners when injuries involve children. The reason is that children are too young to understand or appreciate danger in certain situations. Under a legal theory known as the attractive nuisance doctrine, owners who know or should know about potentially dangerous conditions on their lot must warn children who are playing there, or must take reasonable precautions to protect them. If, for example, there is machinery or other equipment on your vacant lot that could present an unreasonable risk to children, you should remove it. If you don’t, you could very well be liable to the children for any injuries they suffer, even if they were trespassing. 

Landlords

Landlords have a general duty to maintain the tenant’s property and any common areas of the building—including stairs, corridors, and walkways—in order to ensure that their tenants and guests are not injured on the property. If there’s an accident, the landlord may be liable if:

• The landlord could have taken reasonable steps to avert the accident (relevant factors might be that the landlord knew about the problem, and fixing the problem would not have been unreasonably expensive or difficult);

•  the landlord failed to take reasonable steps to avert the accident; and

• the landlord’s failure to make the repairs caused the tenant’s accident and injury.

For example, if guests are injured when a back porch that is part of a unit collapses during a party, the landlord probably would be held liable, especially if he or she had been warned that the porch was sagging or was infested with termites but had not repaired it.

If you are a landlord, there are ways to reduce your liability. Consider having your insurance company inspect the premises and then promptly repair any safety problems the inspector uncovers. If you inspect the premises yourself, look for unsafe wiring, loose railings, poor lighting or similar flaws. You might also write tenants a letter each year asking them to point out hazards or needed repairs they may have noticed. If a tenant who lives in the building every day fails to notice a hazard, it is hard to argue that you should know about it. However, that still may not protect you in a suit by someone who is injured while visiting.

Professionals

Professionals have a special duty to possess and apply the knowledge and skills of other reasonably qualified professionals. That means that if you are a professional—a doctor or a CPA, for example—then you will be liable if your skills do not meet the accepted standard of practice of other professionals.

        In medical malpractice cases, a jury will consider testimony by experts—usually other doctors—who will testify whether they believe the physician’s actions followed standard medical practice or fell below the accepted standard of care. In deciding whether a heart surgeon was negligent, for example, a jury will be told to rely on expert testimony to determine what a competent heart surgeon would have done under the same or similar circumstances. A specialist, like a heart surgeon, is held to a higher standard of care than that expected of a non-specialist. 

Business Owners

Storeowners and restaurant owners must keep their premises reasonably safe for customers. This includes keeping all floors clear and properly maintained. Suppose, for example, you own a fast food franchise and fail to keep your floor spotlessly clean. If a customer slips on a patch of grease and injures his back, then you could be liable for that injury, depending on other circumstances.

Construction companies have similar duties. They must take reasonable steps to keep sidewalks near their construction sites free from bricks and other debris. If you owned a construction company and failed to remove obstructions on the pavement, then you could be liable if someone tripped over a pile of bricks and was injured. Construction companies should also warn pedestrians that they could be injured if they stray from the sidewalk. But posting a sign is not enough. If a company fails to place barriers or warning lamps by a building pit, for example, it may be responsible if anyone falls into it and gets injured. 

It Pays to Be Careful

Every day, at home, on the road, and at work, you owe duties of care to other people. Most of the time you will have a duty to take reasonable care to prevent harm coming to others, which could mean fixing the wobbly third step leading to your front door, driving carefully when you’re in heavy traffic, and putting a fence around your backyard swimming pool so the neighborhood kids can’t get in. In some circumstances, you’ll owe a higher standard of care—for example, if you’re a professional you’ll need to possess and apply the knowledge and the skills of other reasonably qualified professionals.

          If you’re worried about your possible liability, or if you’ve been injured as a result of someone else’s negligence, contact your lawyer as soon as possible.

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Protecting Your Medical Privacy

If you’ve been to the doctor, dentist, or a hospital lately, you were probably presented with a form in the waiting room, and asked to sign before treatment. Maybe you just glanced at the form and signed on the dotted line. But it’s worth a second look. The form concerns something important to all of us—a new rule designed to preserve medical privacy—and this article will explain it and answer some important questions.

 

Your medical records contain personal information, including:
• your name, address, and phone number,
• your age, sex, and marital status,
• names and ages of your children,
• your occupation and Social Security number,
• results of lab tests and physical examinations, and
• your family medical history, including risk factors (such as smoking, obesity or high blood pressure), allergies, immunizations, and any medications prescribed.

None of us would like this kind of private information to be shared with people not involved with our health care, like direct marketers or employers, but until recently doctors and insurance firms were allowed to share this sensitive information with a wide range of people.
The new privacy rule, issued as part of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), gives you more control over how your personal health information is used and disclosed.

Q. Who has to comply with the privacy rule?
A. The rule applies to most health plans, doctors, hospitals, clinics, pharmacies, and nursing homes.

Q. How does the privacy rule protect my medical privacy?
A. Under the rule, you have significant rights to help you understand and control how your health information is used, including the following:

Access to medical records
The rule gives you the right to see and obtain copies of your medical records and request corrections if you identify errors and mistakes. Doctors, hospitals, health plans, and other organizations covered by the rule should generally provide access to your records within 30 days and may charge you for the cost of copying and sending the records.

Notice of privacy practices
Doctors, hospitals, and health plans must provide you with a notice containing information on how they may use your personal medical information. This is the form you were probably given when you visited your doctor or hospital.

Limits on use of personal medical information
The rule sets limits on how doctors, hospitals, health plans, and other organizations to which the rule applies may use individually identifiable health information. The rule does not restrict the ability of doctors, nurses and other providers to share the information needed to treat you. However, your personal health information may not be used for purposes not related to health care.
In addition, you have to sign a specific authorization before a doctor, health plan, or hospital can release your medical information to a life insurer, a bank, a marketing firm, or another outside business for purposes not related to your health care.

Prohibition on marketing
The rule sets new restrictions and limits on the use of your information for marketing purposes. Doctors, hospitals, health plans, and pharmacies must obtain your specific authorization before disclosing your health information for marketing purposes.

Confidential communications
Under the privacy rule, you can request that your doctor or health plan take reasonable steps to ensure that their communications with you are confidential. For example, you could ask a doctor to call your office rather than home, and the doctor’s office should comply with your request if it can be reasonably accommodated.

Tips on How to Protect Your Medical Information
• Take your time and read every form you are asked to sign at the doctor’s office or hospital.
• Ask your doctor for the clinic’s or hospital’s policy on discussing patients among the medical staff.
• Think twice before emailing an internet discussion group and providing information about your medical history. This information can be traced back to you, compiled by the discussion group “host,” and sold to marketing companies.
• If you believe medical staff members are not treating your medical information confidentially, discuss your concerns with your doctor. If you feel your doctor is violating your confidentiality or privacy, report the situation to a managing partner in the clinic or to the chief of staff—even doctors have bosses. You can also report the problem to your state’s medical licensing board and the local medical professional association. Both numbers are in your phone book.

Q. What can I do if I believe my rights to privacy have been violated?
A. If you think your private information has been disclosed, you may file a formal complaint regarding the privacy practices of a covered health plan or provider within 180 days of when you knew the act occurred. You can complain directly to the covered provider or health plan, or to the Office for Civil Rights (OCR), which is charged with investigating complaints and enforcing the privacy regulation. You can find more information about filing a complaint at http://www.hhs.gov/ocr/hipaa  or by calling 866-627-7748. Your lawyer can help you if you need to file a complaint.
 

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Estate Planning for Business Owners 

If you’re a business owner, you probably have plenty on your plate just meeting each day’s challenges, but you’d be well advised to do some longer-range planning. About 70 percent of family-owned businesses fail to make a successful transition into the second generation. About 90 percent fail to be successfully transferred to a third generation of family members. These statistics reveal both the difficulty of transferring from one generation to the next and the lack of planning for successorship.

      Small business owners have a host of special needs. Who will take over the business after you die? Do the surviving spouse or the children get control of the stock? Which ones run the company, and which merely share in the profits?

      This article will look at some of the issues that you and your lawyer should discuss if you want the business to continue after your death. In a later issue, we’ll look at some of the issues involved in selling your interest in the business and the best way to transfer ownership to the new owners.

      Before you meet with your lawyer to plan your estate (and the legal issues involved here are so touchy that a lawyer’s expertise is essential), you should sit down with your beneficiaries to try to answer some critical questions, including how the business will be operated in the immediate aftermath of your death.

Continuing the Business

Customers, bankers, suppliers, competitors, and predators are all very interested in what will happen with a business immediately after the death of the owner and president. What’s worse, the death of the owner may bring on some serious crises. Loan documents, franchise agreements, and other legal contracts often contain termination or re-negotiation clauses in the event of the death of the majority or sole business owner. The uncertainty following your death may also mean the business loses key customers or distributorships, which will make it difficult to sell the business for an optimal price. There is no worse time for the business to re-negotiate financing or defend its opportunity to continue a favorable franchise or distributorship relationship.  But if you plan well in advance, you can prevent some of this chaos.

When renewing contracts with franchisers and suppliers, ask for a modification of any clauses stating that the contract be terminated or re-negotiated upon the death of the owner. Perhaps you could amend them to specify re-negotiation three months after the death of the owner, to give your business a chance to get over the hump. You should specify your successors in any distribution agreements.  Some distributorship agreements require pre-approved successors, in effect forcing you to plan for your succession. There is no guarantee that franchisers and suppliers will agree to these changes, but you’ll never know unless you try, and the time to try is now.

What if You Become Disabled?

Don’t limit your estate planning to preparing for your death. Keep in mind the possibility that you might suffer significant physical or mental disability that could impair important decision-making. The law makes it extremely difficult for others to take away our freedom of choice and responsibility for making decisions. Great damage to the business can be done before you return to good health or control is transferred through legal proceedings that result in conservatorship. Ask your attorney what steps you can take now to avoid harm to your business if you should become disabled.

 

Control
Any prospective buyer will want to see a business that’s running smoothly. Make sure that the new leaders specified in your plan for succession are specifically granted authority to make decisions concerning the business immediately after your death or disability. The issue of control should be addressed through a will, living trust, or other appropriate legal document. Appoint one or more competent, experienced individuals or entities to make business decisions.

 

Continuing Family Ownership
If you want the business to continue in the family, your plan should provide a legacy for children and future generations after your death or disability. At the same time, it must adequately address financial needs of a surviving spouse. It must also provide for the fair distribution of estate assets among children and other family members. Will one or more children receive ownership interests in the business to the exclusion of other children? How do you compare value of an illiquid business interest with cash or marketable securities? Should one child receive a controlling interest in the business or, alternatively, should it be shared among several children? Ifn one child receives the business, how will that affect that child’s total share of the estate? Is that child’s share of the remainder of the estate adjusted? What is the impact of these decisions on family relationships?

      Only you and your family can answer these questions. As always, communication is the key—be sure you involve your family in these decisions so you know their concerns and they know your evolving thinking. If your beneficiaries are interested in taking over the business and, in your judgment, possess the expertise to do so, it’s relatively simple to transfer your interest directly to them. If stock is involved, you might want to leave voting stock to the children who will be involved in operating the business and leave nonvoting stock to the others. Or you can leave the child who will be running the business enough cash (perhaps through life insurance proceeds) to enable him or her to buy out the rest of the estate, and thus avoid conflicts.

 

 Business and Probate

You and your employees don’t want your business to suffer when you die. That’s why avoiding probate might be important where a business is concerned, since even relatively short delays can be devastating. Probate laws vary greatly by state, but in some states the people who take over from you might find they have to get probate court approval for major business decisions for up to three months unless you have made adequate arrangements to avoid this. In those states, you might do well to arrange for the business assets to pass outside your will, usually through a trust or contractual agreement.

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