Chapter 4: Negligence Flashcards
4 Elements of Negligence
Existence of Duty to Care
Breach of Duty
Injury resulting from the breach
Proximate cause of the injury by the breach
Types of Negligence
intentional and unintentional
Types of Liability
Strict and conditional
The person committing the tort
Tortfeasor
Tort Definition
An intentional or unintentional injury (other than a breach of contract) to the victim's body mind property pocketbook
Reasonable Person Test
what would a careful, thoughtful person in the same circumstance have done?
not mentally ill or children
Purpose of Tort Law 6
Specifically to restore the injured party to the position he or she was in before the injury
regulation deterrence compensation dispute resolution education prevention
Strict Liability
A defendant is automatically liable even though no injury has occurred
Intentional Torts
Assault (threat of serious unwanted touching)
Battery (act of unwanted touching)
Trespass
Conversion- a person w/o authority wrongfully takes, retains or disposes of the personal property of another
False imprisionment
Intentional infliction of mental suffering
deceit (fraudulently misleading another)
intentional interference with a contract (urging someone to breach a binding contract)
deceit
Burden of Proof
Civil 51%
Criminal 98%
Defences to Intentional Torts (7)
Consent Self Defence Defence of Property Defence of a 3rd person Necessity Legal Authority Lack of intention
Negligence (Unintentional Torts)
A defendant will be liable for a reasonably foreseeable consequence of their actions
51% probable consequence of an act
Thin Skull Rule
a tortfeasor who can reasonably forsee some injury as a consequence of their conduct may be liable for more serious consequences
The thing speaks for itself
res ipsa loquitur
Res ipsa loquitur
the thing speaks for itself
if a plantiff establishes that the injury could not have happened but for some negligence, then the thing speaks for itself
caused by misadventure not normally occurring w/o negligence
the thing causing the injury was w/in the defendants control
the plaintiff did nothing to provoke the accident
the plaintiff had no prior knowledge of the danger
Negligence per se
failure to meet the requirements of a government law.
you are guilty of negligence even if there is no injury
Contributory Negligence
if you are injured partly or solely because of your own actions
Voluntary Assumption of Risk
a person who participates in an activity knowing the injury that could result has VOLUNTARILY ASSUMED a risk
Voluntary Assumption of Risk (4)
knew about it understood the risk had a choice to avoid the risk voluntarily assumed the risk defendant was not in breach of statutory duty from which the injuries flowed
Last Clear Chance
When the injuries to a plaintiff are a result of their own actions blame can be placed on someone else when
the plaintiff is negligent
bc of their own negligence, the plaintiff finds themselves in a dangerous situation
defendant is aware of the danger the plaintiff is in
the defendant has an opportunity to avoid the injury by exercising his on ordinary care, but fails to do so.
Waivers
When on party agrees to not to try to impose liability on the other if there is an injury
Disclaimer
attempts by one party to unilaterally impose on the other the terms specified in a waiver
Vicarious Liability
employers are responsible for the torts of their employees
Negligent Misrepresentation
If someone negligently gives advice or information knowing the recipient intends to rely on it and the recipient does rely on it to his or her detriment
duty of care is breached
Passing off
when the public is mislead into believing that one companies goods/services are those of a similar brand/product.
Defamation
publication of a false statement about someone
Slander
spoken defamations
Libels
written defamations
Injurious Falsehood
defaming a business, property or product
Food and Drug Act
food service operators may be held strictly liable for selling contaminated food
Sale of Goods Legislation
Implied warranties about the goods sold
Occupier’s Liability Legislation
Occupiers owe a duty of care to thoes entering on, or in the vicinity of, their premise
Invitee
someone who enters upon the occupiers premises while having with the occupier a common interest of mutual advantage (restaurant patron, customers, staff etc)
Licensees
someone who is on the premise with the express or implied permission of the occupier (job applicants)
Trespassers
on the premise without the implied consent of the owner
Prevention of Negligence Claims
SOPs Staff Training Regulatory Adherence Record Keeping Waivers and Disclaimers Releases Insurance
