Chapter 5 - Miscellaneous Torts Affecting Business Flashcards
What are three categories of torts important to business?
Business Torts, False statements and torts related to land
What are included in the Business torts?
Conspiracy, Intimidation, Interference with Contractual Relations and Unlawful Means Tort
What is the tort of conspiracy?
Occurs when two or more defendants agree to act together to cause the plaintiff to suffer a financial loss
What are the two types of conspiracy torts?
Lawful act conspiracy and unlawful act conspiracy
What does Lawful Act conspiracy mean?
Occurs when two or more people cooperate on a course of conduct, that by itself, is lawful. Liability is imposed when believed that they came together for the primary purpose of hurting the plaintiff
What does Unlawful Act conspiracy mean?
The defendants conspired tow commit an act that was unlawful in itself. Proof that the defendants should have know that their actions might hurt the plaintiff
What is the tort of Intimidation?
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
What are the two branches of the tort of intimidation?
Two-party intimidation and three-party intimidation
What is two-party intimidation? p.108
Occurs when the defendant directly coerces the plaintiff into suffering a loss
What is three-party intimidation? p.108
Occurs when the defendant coerces a third party into acting in a way that hurts the plaintiff
What are the requirements for a two-party /third-party intimidation tort?
Proof the defendant committed a unlawful act, The defendant is liable only if its threat was effective (intimidate either the plaintiff or third party)
What occurs when a defendant’s threat to breach a contract?
With a third party will result in liability but the same threat to breach a contract may not be enough in a two party case (can simply sue for breach of contract)
What does the tort of intimidation NOT require?
Does not require proof that the defendant intended to hurt the plaintiff. Still liable if the defendant only wanted to benefit itself, rather than injure the plaintiff
What is the tort of interface with contractual relations?
Occurs when the defendant disrupts a contract that exists between the plaintiff and a third party
What are the four elements of the cause of action for “interference with contractual relations”?
Knowledge, intention, cause and loss
Within the tort of interference with contractual relations, what can the plaintiff sue for?
Sue the defendant in tort for inducing a breach of contract. Sue the third party in contract for actually breaching the agreement
If the plaintiff choses both actions of suing the defendant and the third party, what happens?
The plaintiff cannot recover full damages under BOTH actions, the plaintiff will have to elect between two sets of damages
What can occur if the defendant’s conduct is particularly “outrageous”
The plaintiff may be entitled to recover punitive damages and compensatory damages (under the tort)
What are the two branches of the tort of interference with contractual relations?
Direct and indirect, defendant directly/indirectly induced a third party to breach a contract with the plaintiff
What is the unlawful means tort?
Occurs if the defendant committed an unlawful act against a third party with the intention of causing the plaintiff to suffer an economic loss
What are the necessary elements of the unlawful means tort?
Parasitic, Intention and Actionable Wrong
What is the parasitic element?
The tort is parasitic meaning the plaintiff must latch onto a tort claim that the third party has against the Defendant, pg.112 for example
What is the intention element
Liability requires proof that the defendant committed a wrong against the third party with the intention/purpose of causing the plaintiff to suffer an economic loos
What is the Actionable Wrong element?
The plaintiff must prove that the defendant committed a civilly actionable wrong against the third party. The plaintiff can sue the defendant only if the third party can sue the defendant
What occurs when a contract is misrepresented?
may be entitled to RESCIND the agreement on the basis of a misrepresentation
What three forms of false statements are there?
Deceit, defamation, and injurious falsehood
What is the tort of deceit?
Occurs if the defendant makes a false statement
What four elements must be proven in a tort of deceit?
False statement, knowledge, intention, reasonable reliance
What is the false statement element?
The plaintiff must prove that the defendant made a false statement. In the form of : a spoken word, written document, meaningful gesture
What are examples of false statements? Avoid creating the wrong conception
A complete lie, half truth, failure to update information and caveat emptor (obligated to disclose important information)
What is the knowledge element?
The plaintiff must prove that the defendant knew, at the time of making the statement, that is was false.
What can occur in terms of a careless statement?
A careless statement may allow the plaintiff to prove the tort of negligence. But the tort of deceit does not exist if the defendant was careless and should have known that the statement was false (required that they do know) therefore becomes a tort of negligence
What is the intention element?
Deceit requires proof that the defendant made the false statement with the intention of misleading the plaintiff
What is the reasonable reliance element?
Deceit requires proof that the plaintiff suffered a loss as a result of reasonably relying on the defendants statute?
How is the reasonable reliance element applied?
Liability is possible only if a statement pertains to a past of existing fact not options or predictions or puffs?. However, if a FALSE statement of fact is implied by an opinion or predication
What are the remedies for the tort of deceit?
Backward, place the plaintiff as if the defendant had never made the false statement, not as if it the statement had been true
What is the tort of defamation?
Occurs when the defendant makes a false statement that could lead a reasonable person to have a lower opinion of the plaintiff THAT RESULTS IN DAMAGES (financial losses)
What are the elements of a tort of defamation?
Reasonable person, living person and groups?
What is the reasonable person element?
It is enough proof if a reasonable person would believe that the defendant was referring to the plaintiff , no need for proof that the defendant intended to defame or actually thought less of the plaintiff
What is the living person element?
The tort of defamation is limited of living persons, including cooperations
What does Slander mean?
A defamatory statement that is spoken
What does Libel mean?
A defamatory statement that is written
What sort of statement is defamatory?
Any uncomplimentary statement that could damage a person’s reputation, also important is context, harmful in a certain context evokes liability
True or false: there cannot be defamation without publication
True
What is publication?
Occurs when a statement is communicated to a third party
What may occur when a defamatory statement is repeated?
It can be a new tort every time the statement is repeated, multiple people become liable pg.117
What are defences to defamation?
Justification, privilege, fair comment
What is the Justification defence?
Occurs if the defendants statement is true, the defendant has the burden of proof cannot just honestly have believed that the statement was true
What is the privilege defence?
An immunity from liability, including absolute privilege and qualified privilege. Protects statements of fact
What does absolute privilege mean?
Provides complete immunity. Applies even if the defendant knowingly made a false statement for a malicious purpose
When is the absolute privilege defence usable? pg.118
limited to statements made:
- During parliamentary proceedings,
- Among high government officials dealing with government business
- By a judge, lawyer, litigant, or witness in the context of legal proceedings
- Between spouses
What does qualified privilege mean?
May apply whenever the defendant has a legal, moral, or social obligation to make a statement and the statement is made to someone who had a similar duty or interest in receiving it
What is the defence of qualified privilege limited to?
Limited to statements that the defendant made in good faith, did not know it was untrue
What does fair comment mean?
An opinion regarding a matter of public importance, intended to encourage useful debate on significant social issues. Protects opinions based on fact
What is the condition of a fair comment?
The defendant must not have acted maliciously
What must be satisfied for the fair comment defence?
Informed opinions (a reasonable person would have interpreted the statement as an opinion based on fact, rather than as fact), issue of public interest, honestly held by some person (even if by someone prejudiced or opinionated)
What are the remedies for defamation?
Usually financial compensation, for individual beings compensation for personal distress. Can also award punitive damages when the behaviour of the defendant is outrageous, Can impose a injunction if statement would be defamatory (prevent it from occurring)
What is the tort of injurious falsehood?
Occurs when the defendant makes a false statement about the plaintiff’s business that causes the plaintiff to suffer a loss
What is included in the tort of injurious falsehood?
Slander of title, slander of quality, and other situations
What is slander of title? pg.121
Claim involving real estate in which one entity publishes a false statement that disparages or clouds another entity’s title to property, causing a financial loss
What is slander of quality?
The defendant may falsely disparage the plaintiff’s products in a way that causes potential customers to take their business elsewhere
When does other situations apply in the tort of injurious falsehood?
The defendant may be held liable for making some other type of false statement about the plaintiff’s business
What three elements must be proved in a tort of injurious falsehood?
False statement, malice, and loss
What is the false statement element?
The defendant must make a false statement about the plaintiff’s business or property. Because the tort is concerned with reputations that statement must be made to a third party
What is the malice element?
The defendant may be held liable if they made the false statement for the purpose of hurting the plaintiff
What is the loss element?
The defendant’s false statement must have caused the plaintiff to suffer a loss
What are three other land-related torts?
Occupier’s liability, nuisance, and the rule in Rylands v Fletcher
What is the tory of Occupiers’ liability?
Requires an occupier of premises to protect visitors from harm
What is an occupier?
A person who has substantial control over premises. Control not ownership is required
What is a visitor?
Any person who enters onto premises
What is a premises?
Can be almost any physical space that people occupy including elevators, cars, trains and planes
What are the four categories of visitors recognized in Common Law rules?
Trespasser, licensee, invitee, and contractual element
Who is a trespasser?
A person who does not have permission to enter the premises
What is the occupier’s obligation (trespasser)?
Not to intentionally or recklessly injure a trespasser (burglar). The law uses a duty of common humanity
Who is a licensee? in a business
A person who has permission to enter the premises but who does not further the occupiers economic interest (a social guest)
What is the occupier’s obligation (licensee)?
To protect a license from hidden dangers that were actually known to the occupier
Who is an invitee?
A person who has permission to enter the premises and who furthers the occupier’s economic interests (business customer)
What is the occupier’s obligation (invitee)?
To take reasonable care to protect an invitee from unusual dangers that the occupier knew or should have known about
Who is a contractual entrant?
A person who enters into a contract use the premises, rather than to receive services that are offered on the premises (eg. a hotel guest, but not a restaurant diner)
What is the occupier’s obligation (contractual entrant)?
To a contractual obligation to make sure the premises were as safe as reasonably possible
What are the problems with the traditional law of occupiers liability?
Broad categories, often difficult to distinguish and are often changing. Hidden and unusual dangers
How are the occupiers obligations determined in relation to trespassers? pg.125
The age of the trespasser, the reason or the trespass, the nature of the danger that caused the injury, the occupier’s knowledge of that danger, the occupier’s cost of removing that danger
What are the statuary rules that govern occupier’s liability?
Condition and activities, categories of visitors, risk management
What is the condition and activities element?
The common law generally applies only to dangers that are created by the condition of the premises. The legislation also applies to activities that occur on the premises
What is the categories of visitors element?
The standard of care no longer depends upon a visitor’s classification. An occupier must use reasonable care which includes factors: the potential danger to the visitors, the occupiers cost of removing the danger, the purpose of the visit and the nature of the premises
True or false: In Alberta, occupiers are not required to protect Adult trespassers from danger but are children trespassers
True, merely prohibited from wilfully or recklessly hurting them
What is the risk management element?
The liability of an occupier may be affected by an exclusion clause or a warning
What is an exclusion clause?
A contractual agreement to reduce or eliminate the usual right to receive damages
True or false: landlords can be held liable?
True a landlord may now be held liable for failing to keep a property in good repair under a lease
What is a nuisance?
Occurs because the defendants unreasonable use their land in a way that interferes with the plaintiff’s use and enjoyment of their land
When is the law of nuisance often used?
To resolve disputes between incompatible neighbours
What forms of interference are there in a nuisance case?
Physical damages (even produce a smell or sound that impairs the enjoyment of the plaintiffs property). Non-intrusive nuisance in which it did not cause anything to travel onto the plaintiffs property pg.127
What is the requirement to be considered a nuisance?
The defendant’s interference must be unreasonable, Consider the nature of the interference
What is considered in the nature of the interference?
the nature of the neighbourhood, the time and day of the interference, the intensity and duration of the interference, the social utility of the defendants conduct and the defendants motivation
True or false: it is irrelevant that the defendant did not intend to annoy or hurt the plaintiff
True, also irrelevant if the nuisance existed before the plaintiff arrived in the neighbourhood
What is the defence to nuisance?
Statutory authority, which prevents liability if the defendant caused a nuisance while acting under legislation
When does statutory authority apply?
When the defendants nuisance was an INEVITABLE result of the statutorily authorized activity
What are the remedies for nuisance?
Most common are compensatory damages and injunctions
When can an injunction be prevented?
When the injunction would create an intolerable hardship for the defendant or more importantly for the community as a whole, ex: the injunction would destroy the city’s economy
What is the Rule in Rylans V Fletcher?
States that the defendant can be held strictly liable for a non-natural use of land if something escapes from the property and injures the plaintiff
What is the strict liability element? in the Rule in Rylans V Fletcher pg.129
If the risk of harm is sufficiently serious, the law may hold the defendant responsible despite a lack of intentional, or even careless, wrongdoing
What is the non-natural use of land element? in the Rule in Rylans V Fletcher
The defendant must have used its land in a way that created either a special danger or a special and unusual danger, Emphasis on the UNUSUAL danger pg.129
What is the escape element? in the Rule in Rylans V Fletcher
Requires proof that the plaintiff suffered a loss because something escaped from the defendants land.
True or false: the Rule in Rylans V Fletcher cannot be applied if the incident occurred on the defendants land
True, because nothing has actually left the defendants premises
What does the Rule in Rylans V Fletcher require?
A non-natural use, an escape and an injury
Defences for the Rule in Rylans V Fletcher
The plaintiff consented to the non-natural use of their land, escape was caused by a third party rather or a natural force, plaintiff’s injury may have been the inevitable result of an activity that the defendant was statutorily authorized to do
What is the main thing to understand about The Rule in Rylans V Fletcher
Special precautions must be taken whenever land is used in a non-natural way
