by Linda Mason Hunter

If either you or a member of your family has been harmed by a product or action purported to be safe, you may want to consider taking legal action. The ensuing law suit could be broadly categorized as a toxic tort. A tort is a civil wrong (other than a breach of contract) for which the law will provide a remedy. A good synonym for toxic is poisonous. Thus, a toxic tort would be a poisoning (in a very broad sense) of a person that legally gives rise to a civil remedy.

What remedy? That depends on the case. For example, if the plaintiff (the person with the complaint) can prove that her late husband's death was caused by regular exposure to frayed asbestos in their basement, her legal remedy could be monetary damages. If, as another example, a plaintiff's air is being polluted by a neighboring smelting operation, the legal remedy may be to enjoin (stop) the smelting operation.

The legal tort theories upon which a plaintiff can proceed are varied. They include: (1) negligence, (2) nuisance or trespass, (3) ultrahazardous activity, and (4) products liability.

A few examples may help draw some lines. You might pursue a negligence theory if you hired someone to lay new gas lines into your house and they leaked. If, on the other hand, you purchased a new gas-fired hot water heater and it leaked gas and caused some harm, you would perhaps proceed under a products liability theory.

You should also be aware of the procedural device called a class action suit. If, for example, a manufacturing plant on your side of town emitted harmful and annoying smoke, it would not be feasible for everyone in town to join together as plaintiffs in a single lawsuit. But, if one homeowner brought the suit on behalf of all homeowners who were affected, it would be an efficient way from both the court's and the plaintiff's perspective, to resolve the dispute. Thus, a lawyer for either you or another homeowner might suggest a class action suit.

One final point is the question of how to finance a lawsuit. First, find a lawyer you trust. Second, make the financial arrangements with the lawyer from the outset. In most tort cases, lawyers will represent you for a contingent fee, which means the lawyer will get paid by taking a percentage - usually 25 to 40 percent - of what you recover. If you lose, the laywer will lose, too. If you're seeking an injunction to halt a harmful activity, however, there will be no monetary recovery and the lawyer will want to be paid a fixed dollar amount or an hourly fee. In class action suits, the plaintiff class can usually recover attorney's fees from the defendant if the plaintiff class wins.

Don't be afraid to become a plaintiff in a homeowner lawsuit. It's being a defendant that's no fun.

© 2007 Green Home, Inc.