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BU 231 > Lesson 2: Tort > Flashcards

Lesson 2: Tort Flashcards

1
Q

define tort

A

a wrongful act causing harm to the property or person of another

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2
Q

explain assault

A

threat of violence to the person

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3
Q

explain battery

A

unlawful physical contact with a person

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4
Q

tort law vs contract law

A

tort law does not require there to have been a relationship between the parties

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5
Q

actionable by law or recognized by court

A

if this does not happen, the person cannot maintain an action

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6
Q

examples of wrongful acts not actionable by law/recognized by courts

A

discrimination, adultery

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7
Q

key elements of tort of intrusion upon seclusion

A

defendant’s conduct must be intentional; defendant must have invaded privacy of plaintiff without lawful justification; reasonable person would regard the invasion as highly offensive causing distress, humiliation

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8
Q

who can create a tort

A

courts, provincial, federal gov

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9
Q

province that passed a tort

A

intimate images and cyber protection act passed by nova scotia

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10
Q

fault definition

A

unjustifiable injurious conduct that intentionally or carelessly disregards the interest of others

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11
Q

what do most torts require?

A

finding of fault, not strict liability

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12
Q

what do the courts define fault as

A

not in relation to the personal intentions of the specific defendant (subjective) but in relation to an external standard of the responsible conduct in society (objective criteria)

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13
Q

what 2 principles do most torts involve

A

fault of defendant (whether behaviour was improper) and causation of harm (whether injury was caused by plaintiff actions)

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14
Q

example of a tort with strict liability

A

owner of a dog is liable for damages regardless of fault; person who collect dangerous substances which accidentally escape is liable regardless of fault

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15
Q

strict liability definition

A

liability imposed based on causation regardless of fault

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16
Q

whether liability is based on fault, strict liability etc is a matter of what?

A

public policy

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17
Q

public policy definition

A

economic, social and political considerations or objectives that are believed to be beneficial to society as a whole

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18
Q

liability not on fault or strict liability examples

A

elimination of lawsuits for personal injuries and people are compensation through gov run compensation schemes (no fault insurance, workers compensation)

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19
Q

vicarious liability

A

employer may be liable for tortious acts of its employee if the tortius act occurred during course of employee’s employment; strict liability

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20
Q

will just an employer be liable for employee actions?

A

they both may be held liable

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21
Q

why do we have vicarious liability?

A

employees often have limited assets to pay compensation and the person that profits from the activity should be liable for loss

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22
Q

define intentional torts

A

activity or conduct done deliberately, not by accident

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23
Q

define unintentional torts

A

behaviour was accidental

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24
Q

what does intention relate to?

A

only to behaviour, not damags

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25
Q

what is required for a tort to be actionable?

A

harm or damage

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26
Q

7 examples of intentional torts

A

assault and battery, nuisance (public and private), defamation (libel and slander); trespass, false imprisonment and malicious prosecution; false arrest

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27
Q

explain public nuisance

A

unreasonable interference with lawful use of public amenities; most of the time brought as a gov agency on behalf of public but if individual suffered substantial injury they may sue

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28
Q

explain private nuisance

A

unreasonable interference with the occupier’s use and enjoyment of land

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29
Q

define defamation

A

making untrue statements that cause injury to reputation of another

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30
Q

explain libel

A

written defamation

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31
Q

explain slander

A

spoken defamation

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32
Q

what is not included in defamation

A

overexaggerations, generalizations; they would not discredit reputation in an ordinary person’s mind

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33
Q

elements of defamation

A

(1) publication - communication of the statement to someone other than defamed
(2) plaintiff must prove remarks taken as a whole would discredit plaintiff’s reputaiton in mind of ordinary person

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34
Q

defence to defamation

A

defendant must prove statement is true

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35
Q

absolute privilege

A

complete immunity from liability for defamation ex. words spoken in parliamentary debate

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36
Q

qualified privilege

A

immunity from liability for defamation provided a statement was made in good faith

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37
Q

false imprisonment

A

unlawfully restraining or confining another person

38
Q

false arrest

A

causing a person to be arrested without reasonable cause

39
Q

malicious prosecution

A

causing a person to be prosecuted for a crime without honest belief crime was committed

40
Q

3 intentional torts related to business

A

unlawful interference with business/economic relations; inducing breach of contract; product defamation

41
Q

explain unlawful interference with business or economic relations

A

when someone by threats or other unlawful means attempts to induce another to discontinue a business relationships with a 3rd party

42
Q

parties involved in unlawful interference with business or economic relations

A

A commits unlaw act against B to hurt C. B has right to sue A for unlawful act. Tort gives C right to sue A

43
Q

3 elements of unlawful interference with business or economic relations

A

intention to injure plaintiff; unjustified interference by unlawful means affected plaintiff from gaining living/business; economic loss was caused

44
Q

explain inducing breach of contract

A

one party intentionally causes another to breach a contract with 3rd party

45
Q

parties in inducing breach of contract

A

A convinces B to break contract with C. C will sue B for breach of contract but this tort gives C ability to sue A

46
Q

elements of inducing breach of contract

A

existence of enforceable contract; knowledge on part of the defendant of the existence of contract; intentional act on the part of the defendant to cause breach of contract; wrongful interference on part of defendant; resulting damages

47
Q

explain product defamation

A

where one party makes false and damaging statements about products of another

48
Q

big unintentional tort

A

negligence

49
Q

define negligence

A

careless causing of injury to another

50
Q

4 elements of negligence

A

duty of care is owed; applicable standard of care is breached; plaintiff suffers injury or damage; defendant’s conduct caused the damage

51
Q

explain duty of care

A

relationship so close that one could reasonably foresee causing harm to another (proximity - parties must have direct or connecting link and forseeability must exist). if proximity and forseeability exist, duty of care is owed unless there are policy cocerns that justify reducing/removing it.

52
Q

duty of care for social hosts

A

harm to plaintiff is foreseeable or if host had a paternalistic relationship of supervision and control over plaintiff

53
Q

explain standard of care

A

level of care a person must take in the circumstances

54
Q

damage/injury types of negligence

A

physical/mental injury, property damage, or economic loss

55
Q

but for explanation

A

to determine if defendant’s conduct caused damage in negligence tort; example: but for harry hitting angie’s care, would she have suffered a broken neck?

56
Q

remote explanation in damages for negligence

A

damage must be reasonably foreseeable. unusual or extreme reactions are too remote

57
Q

3 defences to negligence actions

A

contributory negligence, voluntary assumption of risk, failure to mitigate damage (or dispute the 4 elements)

58
Q

explain contributory negligence

A

partial defence when plaintiff’s or another defendant’s conduct also contributed to injury

59
Q

explain failure to mitigate damage

A

plaintiff has duty to act reasonably and quickly to minimize the extent of damage suffered; partial defence

60
Q

explain voluntary assumption of risk

A

complete defence when plaintiff was aware of risk and continued activity anyway

61
Q

3 types of negligence refined for common situations

A

product liability for defective products causing injury; duty to warn for inherently dangerous products; occupier’s liability for injuries on land

62
Q

explain product liability

A

negligence tort imposing liability on manufacturers for harm caused by defective products

63
Q

how can manufacturer be held liable with product liability negligence in proving standard of care?

A

circumstantial evidence principle: case of negligence may be established by drawing reasonable inferences from circumstances surrounding product manufacture and failure

64
Q

purpose of tort law

A

compensate injured party

65
Q

usual reward in tort law

A

award of money, known as damages

66
Q

what damages are required?

A

so far as possible to place plaintiff in same position she would have been in if tort had not been committed

67
Q

what is punishment left to?

A

criminal law

68
Q

2 classifications of damages and explain

A

special damages; quantifiable, general damages: cannot be precisely expressed in monetary terms like pain and suffering

69
Q

punitive damages

A

purpose is not to punish defendant in tort law except in extreme cases to demonstrate court’s disproval of outrageous acts that offend ordinary standards of morality or decency

70
Q

other remedies than damages but less likely and explain each

A

restitution: order to restore property wrongfully taken
injunction: court order restraining a person from doing a particular act
mandatory injunction: order requiring person to do a certain act

71
Q

what is the purpose of tort law

A

to compensate victims for harm caused by activities of others

72
Q

under which law section are people punished?

A

criminal law

73
Q

can someone be punished in criminal law and the plaintiff be awarded damages in tort law?

A

yes

74
Q

can an employe be held liable even when he has given strict instructions to take proper care or not to do particular act that causes damage to employee?

A

yes

75
Q

define trespass

A

unlawful entering or remaining on the land of another without permission

76
Q

what is needed to sue for intentional tort of trespass

A

harm or damage

77
Q

defence to battery

A

consent, either expressed or implied

78
Q

explain battery in medical and sport context

A

medical - surgeon operates on patient without consent

sport - player exceeds “accepted” level of contract

79
Q

2 types of private nuisance and what they require

A

physical damage to property or occupiers (proof of damage); nuisance interferes with use of amenities on property (proof interference is substantial and is unreasonable)

80
Q

what is enough restraint or confinement in false imprisonment?

A

even shouting stop thief without strong evidence a crime has been committed is unlawful

81
Q

4 elements of malicious prosecution

A

1) unsuccessful charges against plaintiff
2) initiated by defendant
3) without reasonable and probable grounds
4) with malice or other improper purpose

82
Q

define responsible communication on matters of public interest

A

a defense to defamation when publication of statement is in public interest and was done responsibily

83
Q

4 defenses to defamation

A

(1) statement is true
(2) overexaggerations, generalizations don’t count
(3) absolute / qualified privilege
(4) responsible communication on matters of public interest

84
Q

what are the policy concerns in duty of care?

A

effect recognizing duty of care will have on legal obligations, legal system and society in general

85
Q

normally when legislation describes the appropriate standard of care for particular activities, what is it?

A

lowest acceptance standard of care

86
Q

how does insurance work in tort cases

A

when an insured party recovers from insurance company, they cannot sue, the insurance company can only sue. People go through insurance to get full damage compensation, if they sue they may find damages are reduced due to contributory negligence

87
Q

define duty to warn

A

manufacturer’s responsibility to make users aware of risks associated with use or misuse of product

88
Q

define occupier’s liability

A

negligence tort imposing liability on occupants of land for harm suffered by vistors to property

89
Q

duty of care owed to tresspassers with occupier’s liability

A

occupier must not set traps and warning signs are required

90
Q

duty of care owed to visitors lawfully on premises with occuper’s liability

A

prevent harm from hazards or dangers that occupier is aware or should have been aware of on his land, does not apply to risks of ordinary demands of everyday life

BU 231 (8 decks)

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