Ch.5 Negligence and Unintentional Torts Flashcards
Negligence
Many ways in which individuals and businesses unintentionally interfere with person or property of another
Negligence cases all have three requirements:
- Some owes a duty not to injure;
- There is an act of omission in breach of that duty; and,
- An injury is suffered as a reasonably foreseeable result of that breach
Duty of care
duty not to injure another person
Includes acts or omissions, which, despite lack of intention, have fallen below acceptable standards and caused harm to another person
Exists where legal right exists
Duty may be owed to easily defined person, or to whole class of unknown people
Reasonable person
standard of care used to measure acts of negligence
Someone of average intelligence who exercises reasonable care, considering all circumstances
Breach occurs when performance rendered falls below that which the injured party can expect
Offers flexibility to courts
Proximate Cause
cause of injury directly related to an act of a defendant
Acts of omission must be directly connected to the injury, without intervening events
“But For” test in causation:
“But for” the defendant’s actions, would injury or damage not have occurred
Damage and Foreseeability
A reasonable person would foresee that their actions would cause harm to another
If yes = liable
If no = not liable
A flexible concept
Strict Liability
Responsibility for loss regardless of the circumstances
Applies in cases where activities or practices are inherently dangerous
Risk associated with activity should be borne entirely by individual
Public has right to recovery no matter what
Vicarious Liability
Liability at law of one person for the acts of another
Applies when one person (employer) controls activity of another (employee)
If committed by employees in course of employer’s business
Courts showing increasing willingness to hold individual employees personally liable
Reflected through insurance coverage
Res Ipsa Loquitor and Circumstantial Evidence
Proving the negligent act is difficult
Burden shifts to defendant to prove they are not liable if items above are proven
Res ipsa loquitor
“The thing speaks for itself”
Res ipsa loquitor Plaintiff must prove:
Cause of injury is something in the exclusive care and control of the defendant
Circumstances constitute events that would not normally occur if proper care had been taken
Occupier’s Liability
Applies to acts and omission of occupiers, not owners
First obligation lies upon tenant (not landlord) to protect persons who enter on the property
All persons owned duty of common humanity and warning of imminent dangers
Not permissible to set traps
Visitors of any kind owed the general duties and standard care expected of a reasonable person
Manufacturers’ Liability (Product Liability)
Traditionally, duty of care owed only to the purchaser of goods not the user
Now, manufacturer’s owe duty of care to any foreseeable users of their products if:
-They were negligent in their manufacture
-They were aware of dangers associated with the goods and failed to warn
Nuisance
Interference with the enjoyment of real property or, in some cases, material interference with a person’s physical comfort
- Any interference with a person’s enjoyment of his or her property
- E.g. Noise, smoke, vibration, fumes, contaminants
- Dependent on circumstances surrounding interference (or degree of interference)
Remedies available to party subjected to the nuisance:
- Damages
- Injunction
Environmental nuisance
- Covered through legislation
General Tort Defences
Contributory negligence
- When actions of the injured party contributed to their own injuries (plaintiff’s carelessness)
- Or injured party is the author (partially or wholly) of their own misfortune
- Damages paid in proportion to degree of responsibility
Injunction [Nuisance]
equitable remedy ordering a person to refrain from doing certain acts
Voluntary assumption of risk (volenti non fit injuria)
- voluntary assumption of risk of injury
Act of God
a natural disaster or other calamity beyond human control
Prevents the performance of a contract or causes
damages to property
Unanticipated event beyond personal control
Waiver
express or implied renunciation of a right or claim
Usually in writing and must cover the injury contemplated by the parties at the time
Release
promise not to sue or press a claim, or a discharge of a person any further responsibility to act
Statute of limitations:
Legislation (statute law) sets forth time periods within one must bring forward an action
Ontario - no relief with be granted when a person’s delay bringing an action period of 2 years form the date they knew or ought to have known had a cause of action
Tort Remedies
Compensatory damages
Monetary award = “money damages”
Purpose is to restore the injured party to a whole state (undo the harm done)
Special damages: covers specific losses or costs (actual amounts/receipts)
General damages: compensation for pain and suffering, future health issues, permanent incapacity (estimated by the court based on evidence presented)
Nominal Damages
tort does not result in monetary loss
Punitive/exemplary damages
awarded to “set an example”
Discourage repetition of the act
Injunctions and court orders
Court order directed to a person ordering the person to cease doing the act described
Contempt of court
Order of replevin
Contempt of court
refusal to obey a judge’s order
Order of replevin
court action that permits person to recover goods unlawfully taken
