Chapter 1 – Commercial Liability – A Legal Perspective Flashcards
Criminal Wrong
one which is considered harmful to the state
Civil Law
concerned with civil or private rights and remedies (be civil to each other)
Define TORT and Tort Law
a private or civil wrong or injury, other than breach of
contract, for which the court will provide a remedy in the form of
an action for damages
TORT LAW enables victims to obtain compensation for their loss from those who caused it. Liability for accidents to members of the public comes within the law of tort.
Contract Law
failure, without legal excuse, to perform any
promise which forms the whole or part of a contract.
The above is BREACH of CONTRACT
Rule of Precedent
current court decisions must follow those
made in cases having similar circumstances
Statute Law
Statute law the WRITTEN LAW, created by
federal and provincial legislation and supersedes or amends common law
Compensatory Damages
compensate the insured party for the bodily
injury or property damage sustained
General Damages
damages, which cannot be exactly determined in monetary terms – rather they reflect the amount the court believes necessary to compensate the aggrieved party fairly eg. pain and suffering
Special Damages
out of pocket expenses. These CAN BE MEASURED
Examples:
Doctor/dentist and special charges
- Hospital clinic or nursing home charges
- Nursing fees
-Charges for ambulance, medication and prosthetics
- Travel expense to and from doctors and hospitals
Exemplary or Punitive Damages
awarded to the plaintiff over and above those provided
as compensatory damages, purpose is to punish defendants
Nominal Damages
establish validity of the plaintiffs claim when a question of principle is at stake
Remedies for Breach of Contract
provide payment for damages to the injured party, enforce specific performance of the terms of the contract
Doctrine of Negligence
duty on all persons to exercise due care in their conduct toward others from which injury
may result
Negligence must be proven, a plaintiff must show that the following three conditions existed
1) The defendant owed the plaintiff a legal duty of care
2) Duty was breached as a result of the defendant’s negligence
3) The plaintiff suffered damages as a proximate result of the defendant’s negligence
strictly liable
if the work is inherently dangerous, they are presumed to be liable for an offence with out the requirement on the plaintiff to prove negligence.
an Occupier
person who has immediate supervision and control of the premises and the power to admit and exclude the entry of others
Duty Owed to Those Who Come on the Premises
responsible for damages caused by the condition
of the premises and the operations conducted thereon
Premises Exposure
occupier is responsible for the condition of the premises
Operations Exposure
Operations conducted on or away from the premises also expose the
occupier to claims arising out of negligence
Liability in Common Law
degree of duty of care is determined by the reason for which the person to whom that duty is owed is on the premises
Common Duty Owed
Such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there or is permitted by law to be there.
Exceptions to Common Duty Owed
not owed to visitors in respect to risks
willingly accepted
duty owed to trespassers
not intentionally harmed or have traps set for them
Liability for independent contractors - one who does the hiring – the principal – will not be liable for the
negligence of an independent contractor provided it can be shown that
- Reasonable care was exercised in the selection of the
independent contractor - It was reasonable that the work the independent contractor was engaged to do should have been undertaken
principal will share in any liability arising out of the
negligence of an independent contractor if…
- When the work being contracted is inherently dangerous
- When injury or damage results from the contractor’s use of defective fixtures, machinery or equipment supplied by the principal
- When the principal controls the manner in which the work is to be done
Landlords are not liable to tenants or their customer for injuries cased by the unsafe condition of the premises, except…
Landlords will be held liable is they fail to notify the tenant of any dangerous conditions they were aware of or ought to be aware of that existed at the time the lease was made. If the landlord promises to make repairs and fails to do so after receiving notice of the danger the landlord is liable.
Multiple Occupancy Buildings
The landlord is responsible to the tenant and those who enter on the premises only for the condition of areas common to all occupants. In all other respects liability falls to the occupier.
Duty Owed to Those Outside the Premises
The occupier is responsible to maintain the premises in a manner which will protect persons from all change of harm arising form the occupiers use of them.
Nuisance
everything that endangers life or health, gives offence
to the senses, violates the laws of decency, or obstructs reasonable and comfortable use of the property
To prove Nuisance, plaintiffs must show…
- physical injury to, or substantial interference with, their use or enjoyment of land
- the injury or interference was unreasonable
Trespass
an unlawful interference with one’s person, property
or rights
defective product is normally one which
- contained something it should not have
- something that was omitted in its manufacture that should have been there
Products Liability Exposure
A consumer of goods has a right to expect that they are safe for use, if use of a defective product results in injury or damage, they are entitled to damages
products liability claim can only be made when it is shown that
- occurred away from the premises of the seller
- the seller had clearly relinquished possession of the
defective product
If injury arises out of the consumption or other use or possession of the product on the seller’s premises this is seen as a…
premises and operations hazard
the seller is liable when…
the buyer makes known the particular purpose for which the goods are required, and relies on the sellers’ skill and judgment, there is an implied condition that the goods will be reasonably fit for such a purpose
The Snail in the Bottle Case
established that the responsibility of manufacturers for their negligence was extended to the ultimate users of their products
Burdon of Proof
manufacturer is only liable for defects caused by its proven negligence; the burden of proof is on the manufacturer. The Manufacturer must prove they were not negligent
Manufacturers are liable for all product defects, they have a duty to ensure:
- safe design
- safe manufacture, construction, assembly and packaging
product is not defective, there may be dangers if not
properly used
- give proper warning of dangers which can occur in using the product
- Provide instructions, if needed
Duties of Sellers
considered at law to be
1) experts when it comes to the
ingredients and properties of the articles they sell
2) expected to tell the truth about them
Completed Operations Liability Exposure
When work is defective, the person who performed such work may be sued for damages.
completed operation claim can arise when injury or damage is shown to have
- occurred away from the premises of the person(s) doing the work
- that such work has been completed or abandoned
Business that have a high exposure to Personal Injury Liability
- Those that employ store detectives
- Landlords
- Newspapers and broadcasters
Real Property
Businesses that rent space face losses to the building and fixed equipment. The extent of their liability is stated in contract, such as the lase or rental agreement.
bailee for hire
one who has temporary control of the personal
property of others for a purpose other than sale and who is compensated for such custody
ordinary care
bailee for hire is expected to take the same care of the goods of others as would be taken by a diligent and prudent owner of such goods
Employer’s Liability for Torts of Employees
Employers are responsible for the torts of their employees while in the course of their employment under common law. injured party must prove that the employee cased damage while
in the course of employment
no liability upon the employer for damages when
employees are…
- Delegate any part of their authority, or arrange for
someone who is not an employee to actually do their work, without the employer’s consent - Are on a “frolic” of their own – taking time from their duties to attend to personal matters
- Use the employer’s property without authorization for their own purposes
Contractual Liability Exposure
the liability of others assumed by the
insured under contract
Pollution Liability Exposure
described as the contaminating or defiling of the
environment
2 Types of COMPENSATORY DAMAGES
1) General damages - can’t be exactly determined. For things like pain and suffering, humiliation, embarrassment, disfigurement.
2) Special Damages - CAN be measured, out of pocket expenses.
Nominal Damages
These are the $1 ones that are used to establish the VALIDITY of the plaintiffs claim.
What % do we think all claims for damages are settled out of court?
90%!!
Can a plaintiff sue for either TORT or in CONTRACT?
As a matter of fact, yes they can!
