PowerPoint 3 Part 1 Flashcards
Tort
A failure to fulfill a private obligation imposed by law.
Tortfeasor
A person who commits a tort.
Can the same incident lead to two different trials?
Yes, in civil and criminal courts.
What does tort law include?
Every sort of private law wrong outside of breach of contract.
What is the difference between a tort and a contract?
- A tort is imposed on everyone.
- Contracts are opted into. Only if you agree to it.
Tort law discourages people from…
Committing private wrongs by requiring them to compensate victims.
Vicarious Liability
Being held liable for torts committed by another.
Vicarious liability is a common ___ ___.
Business risk.
Is it common that you are not found guilty in civil court, but found guilty in criminal court?
No, it is the other way around. The burden of proof is higher in criminal court.
Vicarious liability only for employee torts committed…
In the course of employment.
Why are employers held vicariously responsible for actions of their employees?
Because businesses are required to bear costs of operation. Employees cannot afford to bear those costs.
Are businesses liable for torts committed by independent contractors?
No.
When are employers liable for their employees?
Then the employer instructs the employee to do something.
Can a victim only sue the employer?
No, the victim can sue both the employer and the employee.
The employer may be directly liable if they…
Carelessly trained employees. This is not based on vicarious liability.
Backwards Looking Damages
Asking for damages to put you in the position you were in right before you got victimized.
Forward Looking Damages
Suing for damages that have not yet happened.
Match the following: Tort Law, Contract Law, Forward Looking Damages, Backwards Looking Damages.
Tort law is backwards looking damages, contract law is forward looking damages.
Primary duty of torts:
Do not harm another.
Primary duty of contracts:
Fulfil your promises.
Intentional Torts
Occurs when a person intentionally acts in certain ways.
What are examples of intentional torts?
- Interference with the person.
- Trespass to land.
- Interference with chattels.
Interference with the Person:
- Assault and battery.
- Invasion of privacy.
- False imprisonment.
Interference with Chattels:
- Trespass.
- Conversion.
- Detinue.
Do you need to intend to cause harm or death with interference with the person?
No.
Assault
To intentionally create the perception of imminent and offensive bodily contact.
Elements of assault:
- Reasonable belief of bodily contact.
- Reasonable belief of imminent bodily contact.
- Reasonable belief of offensive bodily contact.
Can someone who is not aware of an action charge the other person with assault?
No, they cannot have a reasonable belief, as they are not aware of it.
If someone points a gun at you, and you know that gun is not loaded, then can you charge them with assault?
No, you cannot have a reasonable belief of imminent and offensive bodily contact.
Reasonable
What a normal person would think.
Belief
You think it is going to happen.
Imminent
Flinch-worthy, happening right away.
Assault vs. Battery:
Assault can be just intending to do it (mens rea), while battery is actually following through (actus reus).
Battery
To intentionally create offensive bodily contact.
Assault and battery are frequently committed ___.
Together.
Threat of contact without actual contact.
Assault only.
Actual contact without warning.
Battery only.
If harm caused was not with malice, can you charge them with battery?
No, it would be negligence.
Good Samaritan Act
When a stranger comes across you in need and tries to resuscitate you, they are immune to a civil lawsuit.
___ is increasingly under the threat of invasion.
Privacy.
No independent tort of invasion of privacy officially recognized until ___.
2012.
Informed Consent vs. Consent:
Consent is just agreeing to something without knowing conditions, but in informed consent, needs to explain what the circumstances are, and how the material will be used.
Breach of Confidence
When you tell something to someone in confidence, but they blab. Requires special relationship, such as employee - employer, protected by law.
Misappropriation of Personality
When someone is presented in a way that they do not consent to. Mostly celebrities. George Clooney’s face is on a box of cookies.
Negligence
When someone is careless (for example, loses sensitive information).
What is the Jones case?
3 people work at the bank.
Husband, wife, and new girlfriend. Husband and wife get a divorce.
Ex-husband starts dating one of their colleagues.
Vicarious liability so the victim would normally be able to sue the bank. However, in this case, she would be suing her boss.
What charges were / were not applied in the Jones case?
There is no right to exclusion in a public space, so invasion of privacy cannot be applied. However, right to seclusion was applied.
False Imprisonment
Unjustified confinement within fixed area.
Elements:
- Unjustified.
- Confined space.
- Fixed area.
When are issues of false imprisonment brought up?
Shoplifting.
Give an example of psychological confinement:
Security guard suspects a woman is trying to shoplift. Woman complies when the security guard asked her to. She was not shoplifting, and she was set free. She filed charges for false imprisonment. She won the case, due to psychological confinement.
Can psychological confinement happen in an open-air space?
Yes.
Is fixed confinement necessary for false imprisonment?
No, can be psychological confinement.
Only ___ people have powers of arrest and detention.
Deputized.
False imprisonment must be an ___ detention.
Unjustified.
What is the difference between the ability to detain between those that are deputized and those who are not?
Those who are not must witness the act, while the who are can arrest on reasonable suspicion.
Detention is justified if the party is convicted of a ___ ___ offence.
Criminal Code.
Do private citizens have powers of detention?
No.
What happened in the cult obsession case concerning false imprisonment?
Girl was obsessed with cult. Was over age of majority, but the family was concerned. Cult deprogrammer kidnapped this girl. Girl escaped, and sued the cult deprogrammer and her father. Won the case.
Malicious Prosecution
Typically comes up when police and crown prosecutors do their job improperly. Had no reasonable belief the person was guilty of the crime. Usually these claims fail.
Elements of malicious prosecution:
- Improves prosecution by police or citizen.
- Prosecution for improper purpose.
- Prosecution without reasonable belief in guilt.
- Plaintiff acquitted of crime.
Trespass to Land
Intentional interference with land.
Elements of trespass to land:
Lack of consent.
Lack of legal authority.
Can landowners expel people from their land?
Yes (lack of consent).
Can gas readers go on people’s property without consent?
Yes (by law), for public safety reasons.
Can you trespass without being on someone else’s property?
Yes, you can have things like cars, trees, or pipelines encroaching on other property.
The remedy you are asking for when you request to take something down is an ___.
Injunction.
Injunctions are granted in the court of ___.
Equity.
Do you own from heaven to hell on the property you own?
No, just 20 ft up and down.
Chattel
Personal property that is moveable and tangible.
Real vs. personal property.
Real property cannot be moved, such as land.
Does chattel include copyright or patents?
No, it must be tangible.
Copyrights and patents are part of ___ property.
Intellectual.
Fixtures
Something that becomes affixed to the land, such as a washing machine.
Fixtures become part of ___ property.
Real.
Trespass to Chattel
Interference with plaintiff’s chattel. Chattel taken, destroyed, used, or perhaps touched.
___ is a catch-all tort for when there is no intention.
Negligence.
Conversion
Interference so serious as to justify forced sale.
Factors considered when conversion is applied:
- Extent to which control exercised.
- Extent to which plaintiff’s rights denied.
- Duration of interference.
- Expense and inconvenience to plaintiff.
Conversion is always ___ compensation.
Monetary.
Detinue
Detention of chattel after demand for return. Different because return must be demanded.
Replevin
The court procures chattel until the right to their possession can be decided by a court of law.
Recaption
Re-acquisition of chattel by owner. Owner cannot use unreasonable force. Owner cannot breach the peace.
Recaption is the idea that you can use ___ force to take back property.
Reasonable.
Consent
Plaintiff voluntarily agrees to interference with their body, land, or chattels.
Consent must be ___ and ___.
Free, informed.
Consent is usually ___.
Revocable.
Revocable consent can be ___ or ___.
Express, implied.
Express revocable consent is…
Surgeon detailed consent for procedure.
Implied revocable consent is…
Normal hits in hockey game.
In a game of hockey, players ___ accept consent.
Voluntarily.
Self-Defence
Right to protect oneself from actual and threatened violence.
Self-defence can be used as a defence to the torts of…
Assault and battery.
Self-defence is only available only if a person is at ___ risk.
Immediate.
With self-defence, you cannot use more force than ___ in circumstances.
Necessary.
Can you use self-defence to defend a third party?
Yes.
Self-defence and defence of third party are broadly defined because…
They protect human life and well-being.
Is the defence of property as generous as self-defence?
No.
Only ___ measures must be used to protect property.
Reasonable.
If the threat is only to land and chattels, it may never be ___ to deliberately cause death or serious injury.
Reasonable.
Defence of Necessity
Defendant’s actions are justified by an emergency.
Defence of necessity can be applied when immediate action must be required to avoid ___.
Calamity.
Defence of necessity weighs the ___ vs. the ___ from the conduct.
Benefits, harms.
Contributory Negligence
Damages reduced to reflect plaintiff’s contribution to harm.
Contributory negligence is only a ___ defence.
Partial.
