Mcs 3040 Midterm 2 Flashcards
Tort:
A social or civil wrong that gives rise to the right to sue and to seek on of several remedies
Tort has usually been committed when:
An intentional or careless act harms another
Easier to successfully sue for tort as standard of proof in tort law is based on a:
“Balance of Probabilities” test
Vicarious Liability
Liability without personal fault.
Example: employers are held liable for tort committed by employees
Intentional Tort
Means that the conduct was intended or deliberate (willful) as opposed to inadvertent
Assult
Conduct that makes a person think they are about to be struck
Battery
When someone intentionally makes unwanted contact with another person
Two defences to assault and battery
- Consent is a defence
- Self-defence
Defamation
A detrimental false statement about someone; must be published or broadcast
Slander
Spoken defamation
Libel
Usually written defamation
Trespass to Land
- Deliberate interference with property
- No consent/permission
Trespass to Chattels
- Deliberate interference with goods of another
- No consent
Conversion
- Deliberate appropriation of the goods of another
Detinue
- Deliberate possession of another’s goods
- Wrongful refusal to return the goods to the owner
False Imprisonment
- Deliberate restraint
- Wrongful refusal to return the goods to the owner
Malicious Prosecution
- Initiation of prosecution on criminal or quasi-criminal charges
- Subsequent acquittal of the plaintiff
- Prosecution was motivated by malice
Private Nuisance
- Unusual use of property
- Substantial and unreasonable interference caused to neighbor’s enjoyment or use of property
- Foreseeable injury
Negligence
Inadvertent or unintentional careless conduct that causes injury or damages to another person or their property
All four elements must be established to succeed in a negligence action:
A - A breach of care
B - Breach of duty
C - Causation
D - Damage
A duty of care is owed to the plaintiff
1. What needs to be established
2. Tests used
- That the proximity of the parties created an obligation to exercise caution or care
- a. Foreseeable plaintiff test
b. Policy considerations
Breach of that duty; breach of the standard of care
1. What needs to be established
2. Tests used
- That the defendant was not careful enough
- Reasonable person test
Causation
1. What needs to be established
2. Tests used
- a. That the defendant directly or physically caused the injury; and
b. That the injury was reasonably foreseeable - a. Physical: “but for” test
b. Legal: remoteness test
Damage
1. What needs to be established
2. Tests used
- That the plaintiff suffered injury or loss
- Refer to precedents - has this type of loss been recognized by courts as compensable?
Reasonable Foreseeable Test:
If it would be apparent to a prudent person that the conduct was likely to cause injury, a duty is owed