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Asking the Right Liability Questions

February 11, 1993|JEFFREY S. KLEIN and LOUIS M. BROWN | Klein is an attorney and president of The Times Valley and Ventura County editions. Brown is professor of law emeritus at USC and chairman of the board for the National Center for Preventive Law

We receive many letters from readers who ask about legal liability in a myriad of circumstances. Many begin with the question, "Will I be liable if . . . " or "Who is liable when . . . "

The question may come from a parent concerned about his or her liability when a child has driven a car and caused an accident, or an owner of a dog that has chewed up a neighbor's couch or bitten a passerby.

Practically speaking, these readers may not be asking the best question. But, first, a basic lesson in legal liability.

In general, the civil law breaks into two major categories, contract law and tort law. Contract law is exactly what it sounds like--the law that applies concerning promises people make, obligations that one agrees to perform and many sorts of voluntary arrangements between individuals.

Accidents, or damages caused by people, by their animals, their children, servants or others come within the field of tort law. The most recent law dictionary to hit our desk is by Prof. David Mellinkoff of the UCLA School of Law. His definition, and one commonly used, focuses on what tort law is not: "Tort--a civil wrong that is not based on breach of contract. E.g., assault, battery, libel, slander, injury to body, injury to psyche, damage to property." In other words, a tort is not a crime, and it is not a contract-based claim, but it is just about everything else.

A tort can be either intentional or accidental. If someone hits you on purpose, you can sue under tort law. If someone hits you accidentally, you can sue under tort law, using a different legal theory.

There are really two basic questions that you should consider.

* Is someone going to make a claim that you are liable--or said more simply, will you be sued?

* If a claim is made, or if you are sued, what is the probability that you will be found to be legally responsible?

Most people worry about the second question. They rarely ask us the first. And the first question is very important, because even if you will not be ordered by a judge to pay damages for one of your acts, if you are sued, you will have to defend yourself. And that could cost you both money and time.

That's why, on a practical level, what you really want to ask about is insurance. Insurance policies for many kinds of tort liability cover both of these basic questions.

Consider your auto insurance. If you are involved in an accident, whether or not you are at fault, the terms of the policy customarily provide that the insurance company will take care of the defense of a claim at least until your legal expenses exceed the dollar limits of the policy. And the cost of the defense is an important element of your total cost and liability. It takes time and energy, costs money, causes aggravation, and keeps you from other important matters . . . even if you eventually win.

And if you have adequate insurance, the law--to many people--may become academic. You may not need to develop a keen understanding of the legal issues. Your insurance company and the lawyers it pays to represent you will, presumably, know the law, as well as the probabilities of winning or losing. (We don't want to discourage an active interest in the law, or your individual case, we are just pointing out that you don't have to be consumed with it if you don't have such an inclination.)

All of this helps explain why one of the basic questions that anyone should ask who is concerned with potential legal liability is whether an insurance policy you already have (such as auto or homeowners) covers the particular kind of situation you face. And if you don't have insurance that covers the situation, ask your insurance agent whether there is such insurance available. So, don't worry only about whether you are liable when you slice your golf ball and it injures someone. (It does happen.) What you really want to worry about is whether the injured person is likely to claim that you are responsible, even if you did shout "Fore!," and, maybe even more important, whether you have insurance to cover the claim.

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