Ch. 12 - Torts

Question 1

Tort

Answer 1

a breach of duty to care (i.e. a civil wrong) for another party where the breach causes injury or loss to that party for which the law provides a remedy (damages), independent of whether the two parties involved have a contract. Broken into two categories, intentional and unintentional

Question 2

intentional torts

Answer 2

assault & battery, fraud, trespass, defamation

Question 3

unintentional torts

Answer 3

negligence, negligent misrepresentation

Question 4

In order to succeed in negligence claim, plaintiff must prove what?

Answer 4

1) the defendant owed the plaintiff a duty of care
2) the defendant breached that duty
3) the plaintiff suffered loss or damage
4) the breach was the proximate cause of the plaintiff’s loss

Question 5

Duty of Care

Answer 5

If at the time they committed the negligent act the defendant could have reasonably foreseen that the plaintiff might suffer loss or damage, then a duty of care is owed to the plaintiff.

Question 6

Pure economic loss

Answer 6

a loss in which the only damages were money. Courts barred negligence claims for pure economic loss. An exception is negligent misrepresentation.

Question 7

Breach of Duty

Answer 7

Standard of care, meaning the level of skill and care expected by a reasonable and competent person of their profession, was not met. breaches fall into two categories: incompetence and lack of care.

Question 8

Ways to reduce standard of care breaches

Answer 8

1) establish a list of procedures and following them
2) hiring someone to check calculations or peer review
3) Continuous education in respective field
4) ensure contract governing performance of the work doesn’t set an unreasonable standard of care or include a guarantee of results

Question 9

Proximate Cause

Answer 9

Test #1: The “but for” test: would the loss or damage or injury have occurred without the negligent action of the defendant?

Test #2: Proximate cause, which is a cause that plays a significant role in producing the result, compared to one that is too remote.

Question 10

Causation in negligence claims need only be determined by?

Answer 10

balance of probabilities, meaning “more likely then not”

Question 11

Tortious Misrepresentation

Answer 11

a false statement. Fall into three categories:

1) innocent
2) negligent
3) fraudulent

different remedies available depending on type

Question 12

Negligent misrepresentation

Answer 12

misrepresentation of facts that breaches duty of care. involves a statement rather than an action, the injured party must have reasonably relied on the negligent statement for the claim to succeed, typically involve pure economic loss (best known exception to barred negligence claims). Lack of causation is defense.

Question 13

Innocent misrepresentation

Answer 13

involves no intention to deceive, yet may still give rise to a remedy. plaintiff is not entitled to additional damages but may still be entitled to rescission, or cancellation of the contract. However, mistake must be fundamental or substantial to warrant rescission.

Question 14

Fraud

Answer 14

(aka deceit or fraudulent misrepresentation) is an intentional tort. key principles:

1) statement is untrue
2) defendant knows to be untrue or is indifferent as to its truth
3) intended or calculated to induce the plaintiff to act upon it
4) the plaintiff acts upon and suffers damage

Can also occur by omission rather than express statement

Question 15

Fiduciary Duty

Answer 15

heightened duty of care for the interest of another party in priority in one’s own interest and a duty not to act against the interest of the other party. Guidelines or Hallmarks:

1) one party (fiduciary) has the ability to exercise some discretion or power
2) the fiduciary can unilaterally exercise that power or discretion to affect the beneficiary’s legal or practical interests
3) the beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary
4) a fiduciary relationship doesn’t normally arise between arm’s length commercial parties.

Question 16

Trespass

Answer 16

unauthorized entry onto the land of another person. A strict liability tort. engineers and contractors must take care in negotiating with neighbors about possibly encroaching their property while performing construction on a house.

Question 17

Strict liability

Answer 17

to prove liability, need only prove defendant entered or encroached onto the plaintiff’s land without authorization, intention or negligence not required.

Question 18

Duty to Warn

Answer 18

Professional duty to warn of impending damage to persons or property. Professional is liable and could receive heavy consequences for failure to speak out even if the work is outside their scope.

Question 19

Product Liability

Answer 19

liability of the manufacturer to a consumer for a defective product. No privity of contact required between manufacturer and consumer. Consumers must assert a negligence claim using tort law rather than contract law in Canada. Once proven defective, manufacturer must prove that the product met the standard of care. Learned intermediary defence is popular defence.

Question 20

Learned intermediary

Answer 20

a person positioned between the manufacturer of a product and the consumer who has specialized technical knowledge and upon whom the law imposes a duty to warn the consumer. Engineers often fall in this category and must be vigilant in the products they specify.