Chapter 5: Miscellaneous Torts Affecting Business Flashcards
Conspiracy
Occurs when tow or more defendants are to act together with the primary purpose of causing the plaintiff to suffer a financial loss.
Why is the tort of conspiracy harder to prove if the defendant’s actions were lawful, as opposed to unlawful?
If the actions were lawful, the court requires proof that the primary purpose was to hurt the plaintiff. If the actions were unlawful, then it is enough to require proof that the defendant should have known that their actions might hurt the plaintiff.
Intimidation
Occurs when the plaintiff suffers a loss as a result of the defendant’s threat to commit an unlawful act against either the plaintiff or a third party.
Two Party Intimidation
Occurs when defendant directly coerces the plaintiff into suffering a loss.
Three-Party Intimidation
Occurs when the defendant coerces a third party into acting in a way that hurts the plaintiff.
What are the 3 basic rules to intimidation?
- Plaintiff has to prove defendant threatened to commit unlawful act (crime, tort, breach of contract).
- Tort does not apply unless plaintiff gave in.
- No need to prove defendant intended harm. Can be to benefit self.
Interference with Contractual Relations
Occurs when the defendant disrupts a contract that exists between the plaintiff and a third party.
Direct Inducement to Breach of Contract
Occurs when the defendant directly persuades a third party to break its contract with the plaintiff.
What are the two types of interference with contractual relations?
- Direct inducement to breach of contract.
2. Indirect inducement to breach of contract.
What are the four factors required for direct inducement to breach of contract?
- The defendant must know about the contract.
- The defendant must intend to use the third part to breach.
- The defendant must actually cause the third party to break contract.
- The plaintiff must suffer a loss as result of the defendant’s actions.
Indirect Inducement to Breach of Contract
Occurs when the defendant indirectly persuades a third party to break its contract with the plaintiff.
What are the five factors required for indirect inducement to breach of contract?
- The defendant must know about the contract.
- The defendant must intend to use the third part to breach.
- The defendant must actually cause the third party to break contract.
- The plaintiff must suffer a loss as result of the defendant’s actions.
- Unlawful act.
Unlawful Interference with Economic Relations
May occur if the defendant commits an unlawful act for the purpose of causing the plaintiff to suffer an economic loss.
What are the three requirements for unlawful interference with economic relations?
- Intent to injure.
- Unlawful or illegal act.
- Economic loss.
Which torts require that a defendant’s action be unlawful, or threaten something unlawful?
Intimidation, indirect inducement to breach of contract, interference with economic relations.
Which torts can be applied regardless of whether the defendant’s actions are lawful or unlawful?
Conspiracy, direct inducement to breach of contract.
Deceit
Occurs if the defendant makes a false statement, which they know to be untrue, with which they intend to mislead the plaintiff and which causes the plaintiff to suffer a loss.
What are the four criteria to take someone to court for deceit?
- Defendant must make false statement.
- Defendant must know they are making a false statement. Can be reckless, but being careless does not qualify.
- Statement must be made with intention to mislead plaintiff.
- Plaintiff must suffer a loss as a result of reasonably relying on that statement.
False Statement
- Half-truth.
- Failing to update information.
- Exceptions to caveat emptor (let the buyer beware).
Example of half-truth:
If I am selling my business to you, and I provide figures representing gross profits as if they reflect net profits.
Example of failing to update information:
If I am selling my sines s to you, and I provide information that is accurate when I give it, but later becomes inaccurate because of a dramatic change in the market before the deal closes.
Caveat Emptor
“Let the buyer beware.” The typical rule that the seller is not obligated to volunteer information. However, exceptions include hidden defects in houses that make the building dangerous, or disclosing important information for a life insurance policy.
I tricked you into buying an apartment from me for $600,000. According to what I said, the apartment would have been worth $750,000. The apartment is worth $500,000. How much are you entitled to?
$100,000.
Occupier’s Liability
Requires an occupier of premises to protect visitors from harm.
Occupier
Any person who has substantial control over premises.
Visitor
Any person who enters onto premises.
Premises
Include more than land. Apartments, offices, elevators, a variety of vehicles.
Occupier’s liability is determined by what rules?
- Common law rules.
- Statutory rules.
What are some problems with the traditional system of occupiers liability?
- Lumps people together.
- Difficult to distinguish between categories.
- Visitor’s status may change frequently.
- Difficult to determine whether a danger is hidden or unusual.
Trespasser
A person who does not have permission to enter the premises.
Licensee
A person who has permission to enter the premises but who does not further the occupier’s economic interest (such as a social guest).
Invitee
A person who has permission to enter the premises and who furthers the occupier’s economic interests (such as a business customer).
Contractual Entrant
A person who enters into a contract toque the premises, rather than to receive series that are offered on the premises (such as a hotel guest, but not a restaurant diner).
What is the occupier’s obligation to a trespasser?
Not intentionally or recklessly injuring a trespasser (not allowed to set up traps).
What is the occupier’s obligation to a licensee?
To protect a licensee from hidden dangers that were actually known to the occupier.
What is the occupier’s obligation to a invitee?
To take reasonable care to protect an invitee from unusual fingers that the occupier knew or should have known about.
What is the occupier’s obligation to a contractual entrant?
A contractual obligation to make sure that the premises were as safe as reasonably possible.
Someone is trespassing on your property. Is it enough that you refrain from intentionally or recklessly hurt that trespasser?
No, you just strike a balance. You must take into account the age of the trespasser, the reason for the trespass, the nature of the danger that caused the injury, the occupier’s knowledge of that danger, and the occupier’s cost of removing that danger.
Under current occupier’s liability laws, ___ and ___ are now generally treated the same.
Licensees and invitees.
Previously, licensees were protected only from hidden dangers. However, now they are protected from ___ angers.
Unusual.
To what extent has Newfoundland and Labrador taken the tort of occupier’s liability?
You must use reasonable care toward all lawful visitors.
The common law has determined that only the condition of the premises is the responsibility of the occupier. True or false?
False. Not only is a rotting tree in a campground the responsibility of the occupier, but so is the loud drunken guy that assaults someone.
As a general rule, all visitors (regardless of classification) must be treated with reasonable care, which depends on the potential danger to the visitor, the occupier’s cost of removing that danger, the purpose of the visit, and the nature of the premises. True or false?
True.
What are the special rules that apply in Alberta regarding occupier’s liability?
Occupiers are not required to protect adult trespassers from danger. They are merely prohibited from willfully or recklessly hurting them. In contrast, reasonable care must be taken to protect child trespassers.
Give an example of a statute that allows an occupier to avoid liability:
Ski hills and warning signs/notices on the back of lift tickets.
Under common law, can a landlord be held liable for injuries that a person suffers while visiting a tenant?
No, as they are not in control over the premises and therefore are not an occupier.
Under legislation, can a landlord be held liable for injuries that a person suffers while visiting a tenant?
Yes, if they fail to make repairs under their lease with the tenant.
Nuisance
Occurs when the defendant unreasonably interferes with the plaintiff’s use and enjoyment of their own land.
Examples of physical damage as a result of nuisance:
- Defendant’s factory emits chemical particles that causes paint on the plaintiff’s house to peel.
- Defendant’s construction project causes heavy vibrations that cracks the foundation of the plaintiff’s house.
Examples of sound or smells that impairs enjoyment as a result of nuisance:
- Operating a pig farm that causes a stench to waft into an outdoor cafe.
- Blaring music from a nightclub into the neighbourhood.
Examples of non-intrusive nuisances:
- Defendant installs a sweet system that drains water from the plaintiff’s land, causing damage to the foundation.
- Defendant operates a brothel bringing the bad crowd around.
The defendant builds something on their property that blocks the plaintiff’s view of the lake, or blocks sunshine. Can you sue for nuisance?
No.
The defendant paints their home a colour that reduces the value of the plaintiff’s. Can you sue for nuisance?
No.
A nuisance occurs only if the defendant’s interference is ___.
Unreasonable.
A defendant’s conduct is most likely to be found unreasonable if there is ___, and most likely not to be found unreasonable if it is ___.
Physical damage, non-intrusive.
What are some things considered by the courts when looking at a nuisance claim?
- Nature of the neighbourhood.
- Time and day.
- Intensity and duration.
- Social utility.
- Motivation.
Statutory Authority
Means that the defendant caused a nuisance while acting under legislation.
What are the most common remedies for nuisance?
Compensatory damages, injunctions, or compensatory damages and injunctions.
Rule in Rylands v Fletcher
States that the defendant can be held strictly liable for their non-natural use of land if something escapes from their property and injures the plaintiff.
What are 3 criteria that must be met in order to apply the rule in Rylands v Fletcher?
- Defendant must have made a non-natural use of their land.
- Something associated with a non-natural use must escape from the defendant’s land and cause the plaintiff loss.
- There must be some sort of fault.
Non-Natural Use
Creating a special and unusual danger.
Does something have to leave a person’s property in order to apply Rylands v Fletcher?
By the book yes, but for example if a spectator is hit by flying debris at a racetrack, a judge would ignore this in order to avoid an unfair result.
What is the rule for fault in Rylands v Fletcher?
Strict. The defendant may be liable even though they acted as carefully as possible.
What are 3 possible defences to the rule in Rylands v. Fletcher?
- The plaintiff may have consented to the defendant’s non-natural use of their land.
- The escape may have been caused by a third party or a natural force the defendant could not have guarded against.
- The plaintiff’s injury was the inevitable result of an activity that the defendant was statutorily authorized to do.
Trespass to Land
The defendant intentionally interferes with the plaintiff’s land.
Defamation
Occurs when the defendant makes a false statement that could lead a reasonable person to have a lower opinion of the plaintiff.
A statement is defamatory only if a ___ ___ would have thought that it referred to the plaintiff.
Reasonable person.
Can a claim of defamation be made by a corporation?
Yes.
If the defendant made a claim about a group of individuals, could you sue for defamation?
Usually not.
Do you have to intend to hurt someone’s reputation in order to be liable for defamation?
No, it can be by accident.
Slander
A defamatory statement that is spoken.
Libel
A defamatory statement that is written.
Publication
Occurs when a statement is communicated to a third party.
Who can get sued for defamation, the author or the publisher?
Both.
Justification
Occurs if the defendant’s statement is true.
Privilege
An immunity from liability.
Absolute Privilege
Provides complete immunity, and applied even if the defendant knowingly made a false statement for a malicious purpose.
When is absolute privilege granted?
- During parliamentary proceedings.
- Among high government officials who are dealing with government bursaries.
- By a judge, lawyer, litigant, or witness in the context of legal proceedings.
- Between spouses.
Qualified Privilege
May apply whenever (i) the defendant has a legal, moral, or social obligation to make a statement, and (ii) the statement is made to someone who has a similar duty or interest in receiving it. A statement without malice.
When is qualified privilege granted?
- A managed makes an unfair statement about a former employee to the personnel director of a company that is considering hiring that individual.
- A department store discreetly posts a notice instructing its employees not to accept cheques from a customer who is wrongly suspected of fraud.
Public Interest Responsible Journalism
Occurs when a journalist, despite getting some facts wrong, acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear.
Fair Comment
An expression of an opinion regarding a matter of public importance.
What are the three elements that need to be present in order to use fair comment as a defence to defamation?
- Defence is intended to protect informed opinions.
- Defendant’s opinion concerns an issue of public interest.
- The comment could honestly be held (used to be honestly held).
What is the usual remedy for defamation?
Compensation.
Injurious Falsehood
Occurs when the defendant makes a false statement about the plaintiff’s business that causes the plaintiff to suffer a loss.
Slander of Title
The defendant falsely says that the plaintiff does not own a particular piece of land, making it difficult for the plaintiff to sell the property for its full value.
Slander of Quality
The defendant falsely disparages the plaintiff’s products in a way that causes potential customers to take their business elsewhere.
In which of these cases can slander of quality be applied? Company A says that its products are better than Company B’s. Company A makes a true claim that Company B’s products are garbage. Company A makes a false statement about their own products.
None of the above, slander of quality does not apply to any of them.
What are the three elements that must be proven in injurious falsehood?
- False statement.
- Malice.
- Loss.
