Study 2 Flashcards
What can a person’s behaviour and actions lead to?
Far-reaching consequences
Name three daily activities that can expose a person to risk.
- Driving to work
- Commuting on public transit
- Walking down the street
What is often the state of people during their daily activities?
Relative anonymity
What can unexpected events lead to in legal terms?
Consequences involving the courts
What can accidents draw opposing parties into?
The realm of the courts
What are two types of cases that can arise from accidents?
- Personal injury
- Damage to property
In a court conflict, what must be determined about the defendant’s conduct?
If it was unreasonable
Fill in the blank: Daily activities can expose individuals to _______.
[risk]
True or False: Most people are aware of the risks they face during daily activities.
False
What do courts need to assess when dealing with accidents?
The reasonableness of the defendant’s conduct
What is negligence in tort law?
Negligence refers to a failure to take reasonable care to avoid causing injury or damage to another person or their property.
What are the three elements of the ABC Rule in negligence cases?
- A duty of care exists
- Breach of that duty occurred
- Causal relationship between the breach and damages is shown
What does Rule A of the ABC Rule examine?
Rule A examines who is my neighbour to determine whether a duty of care exists toward a given plaintiff.
What does Rule B of the ABC Rule assess?
Rule B examines whether the duty of care was breached and whether the loss should have been foreseeable by the wrongdoer.
What does Rule C of the ABC Rule determine?
Rule C examines the damages suffered by the plaintiff to determine whether they were actually caused by the breach of that duty.
What is a prima facie case?
A prima facie case is one that appears to be self-evident from the facts presented, with sufficient evidence to prove a particular fact.
Who is the reasonable person in the context of negligence?
The reasonable person is a mythical creature of the law used as a standard to measure the conduct of all other persons.
List some characteristics of the reasonable person.
- Not extraordinary or unusual
- Not superhuman
- Not required to display the highest skill
- Not a genius with unusual powers of foresight
What is the standard of conduct for a reasonable person?
The reasonable person’s conduct is guided by considerations which ordinarily regulate the conduct of human affairs.
How does societal values influence the definition of a reasonable person?
The definition of a reasonable person may change over time as societal values change.
True or False: A reasonable person is expected to be perfect.
False
What is required of all people regarding their behavior towards others?
All people must act with care and thought as to what their behavior might do to another person.
In what case did the Ontario Court of Appeal provide a description of the reasonable person?
Arland v. Taylor, 1955 CanLII 145 (ON CA)
Fill in the blank: Negligence arises out of a relationship between the _______ and the _______.
[plaintiff], [defendant]
What is the implication of establishing a prima facie case in court?
The court presumes the information is true until evidence is introduced to the contrary.
What must a jury decide in negligence cases?
Whether a defendant has acted as a ‘reasonable person’.
What is the duty of care in tort law?
The obligation of defendants to conduct themselves with care toward the injured party who initiates the lawsuit.
How does the likelihood of establishing a duty of care change?
It tends to increase in relation to the seriousness of the threat of harm.
What is the duty to your neighbour principle?
The requirement to compensate another for the reasonably foreseeable results of negligent conduct.
Who outlined the duty to your neighbour principle?
Lord Atkin in Donoghue v. Stevenson [1932] AC 562.
What does Lord Atkin’s principle state?
You must take care to avoid acts or omissions which you reasonably foresee would likely injure your neighbour.
What was the significant issue in Donoghue v. Stevenson?
The absence of a direct contract between the injured party and the manufacturer.
What is the standard of care once a duty of care is established?
It varies based on the category of persons and the specific circumstances.
What is expected from a specialist in the medical field regarding duty of care?
To perform at a professional level comparable to other specialists in the same field.
What is the occupier’s duty of care?
To keep premises safe for third parties entering the premises.
What are the four main categories of entrants under common law?
- Trespasser
- Licensee
- Invitee
- Contractual entrant
What is the standard of care owed to a trespasser?
The occupier must treat the trespasser with common humanity.
What factors are considered in determining an occupier’s duty to trespassers?
- Gravity of the probable injury
- Likelihood of the probable injury
- Character of the intrusion
- Nature of the premises
- Knowledge of the occupier about likelihood of trespass
- Cost to the occupier to prevent harm
What is the duty owed to a licensee?
To protect a licensee from known concealed traps or dangers.
What differentiates an invitee from a licensee?
An invitee enters for the benefit of the occupier, while a licensee is there for personal enjoyment.
What is the occupier’s duty to a contractual entrant?
As specified in the contract or implied to make the premises safe for the purpose.
What is strict liability?
Legal responsibility for damages without needing to prove negligence.
What must a plaintiff show to establish a case of strict liability using Rylands v. Fletcher?
- The occupier used the land in a way that changed its natural form
- The occupier brought something onto the land likely to cause harm if it escaped
- The escape of the dangerous thing occurred
- The escape resulted in damage to the plaintiff.
What do most provinces and territories have that governs occupiers’ liability?
Statute laws that take precedence over common law.
What is the duty of an occupier of premises?
To take reasonable care to ensure that persons entering the premises and their property are safe.
Which act outlines the duties of landlords and tenants?
Residential Tenancies Act, 2006, S.O. 2006.
What must a landlord provide and maintain in a residential complex?
In a good state of repair and fit for habitation.
What is the duty of care owed by occupiers according to occupiers’ liability legislation?
A single duty of reasonable care toward all visitors on the premises.
True or False: An occupier has a greater liability risk than the owner if a person is injured on the premises.
True.
What is the consequence if an owner knew about unsafe conditions and did not act?
The owner will likely be found liable.
What are landlords responsible for in common areas of residential multiple-occupancy structures?
Maintaining all common areas for safe use.
Fill in the blank: A tenant’s lease agreement defines the duties and responsibilities of both parties and is a _______.
Contract.
What happens when there is a conflict between an act governing a tenancy situation and the lease?
The legislation will prevail.
Who can sue the landlord and the tenant if a guest is injured on the premises?
The guest.
What do hold-harmless and indemnity agreements do?
Transfer liability and direct who pays for expenses related to defending an action or satisfying a judgment.
What has changed in liability insurance policies regarding covered contracts?
From ‘incidental’ contracts to ‘insured’ contracts.
True or False: Liability insurance policies cover for all liabilities incurred under a contract.
False.
In what types of contracts are hold-harmless and indemnity agreements often included?
Leases, construction contracts, and service agreements.
What must a party do to indemnify another for described losses?
Agree within the contract.
What are some limitations regarding a party’s right to impose indemnity terms?
Common law of contracts and statutes of some jurisdictions.
What can parents be held liable for concerning their children?
Ordinary negligence, such as failure to supervise.
Under what conditions can parents be vicariously liable for their children’s acts?
If the child was acting on their express instructions, employed by them, or caused damage with a dangerous thing they controlled.
What is the responsibility of landscapers regarding their work area?
To keep the work area safe for people entering it.
Who is the bailor?
The owner of property who temporarily transfers the possession of property to another
Who is the bailee?
The party who receives the property for an agreed temporary period of time
What duty does a bailee owe to a bailor?
A duty to take care of the property
What factors affect the level of duty of care in a bailment?
The basis on which the property changed hands
What is a bailment for the sole benefit of the bailor?
A situation where the bailee is providing a service to the bailor, such as cutting grass with the bailor’s lawnmower free of charge
What is the duty of care owed in a bailment for the sole benefit of the bailor?
A low duty of care
What is a bailment for the sole benefit of the bailee?
A situation where the bailee borrows property, such as the lawnmower, to use for their own benefit
What is the duty of care owed in a bailment for the sole benefit of the bailee?
A higher duty of care
What happens to the duty of care when the bailment is for mutual benefit?
The duty of care is generally higher than in other scenarios
Which types of bailees are subject to a higher standard of care?
Dry cleaners and jewellers
What is the liability status of common carriers and hotel owners regarding bailed property?
They are strictly liable for damage to bailed property
What can affect the duty owed in a bailment?
Statute law and contractual terms between the parties
What shifts the onus to the bailee in a bailment?
The property was in the hands of the bailee when the loss occurred
What is required to prove a negligence claim based on breach of statute?
The statute must have been breached
What must the breach of the statute cause?
The damage for which compensation is sought
What must the statute be intended to prevent?
The damage that occurred
Who must be among the group intended to be protected by the statute?
The person making the claim
True or False: Compliance with a statute is a complete defense to a claim for negligence.
False
What is breach of duty?
A breach occurs when the conduct of the defendant falls below the standard of care measured against a reasonable person under those circumstances.
What must a plaintiff show to prove breach of duty?
The plaintiff must show that the defendant breached the identified duty.
What legal concept balances the law regarding breach of duty?
Foreseeability.
What is required for a victim to collect damages from a tortfeasor?
The victim must show that the breach of duty by the defendant caused the damages being claimed.
What is the proximate cause rule?
There must exist an uninterrupted unfolding of events from the initial act to the conclusion without the intervention of another main cause.
What types of damages are typically recoverable under liability policies?
Compensatory damages.
What are special damages?
Compensate the victim for economic losses or expenses such as medical bills, damaged clothing, and income lost.
What do general damages compensate for?
Non-economic, hard-to-quantify aspects of a claim such as pain and suffering, loss of enjoyment of life, and loss of companionship.
What is pure economic loss?
Losses that are purely financial without any physical injury.
What are nominal damages?
Awarded when the plaintiff has a right of action but has suffered no real loss, typically a small amount like $1.
What are punitive damages?
Awarded as punishment to the defendant for reckless or willful behavior.
What is the duty to defend in liability policies?
It is based on the allegations made by the third party, not on the actual acts or omissions committed by the insured.
What is reasonable foreseeability?
The consideration whether a reasonable person could foresee that the act contemplated would likely harm someone.
What was the outcome of the case Polemis and Furness Withy & Co. Ltd.?
The charterers were held liable despite the fall of the plank being unforeseen.
What did the Wagon Mound case establish?
It overruled the Polemis decision, stating it was not reasonably foreseeable that circumstances would arise causing damage.
What is remoteness of damage?
It refers to situations where the connection between the defendant’s negligence and the damage is too distant or indirect.
Fill in the blank: Compensatory damages refer to money that will reimburse the plaintiff for the _______.
injury or loss actually suffered.
True or False: Most liability policies cover punitive damages.
False.
What is the significance of the Rankin (Rankin’s Garage & Sales) v. J.J. case?
It determined that the car owner was not liable for injuries caused by a thief driving a stolen car due to lack of foreseeability.
What is negligence?
Doing something a reasonable person would not do or failing to do something a reasonable person would do in similar circumstances
Negligence may result in a finding against the wrongdoer for damages or injuries suffered.
What must courts analyze in negligence cases?
All relevant facts to determine any negligence on the part of the alleged wrongdoer
What might seem a simple case may have specific factors the courts must weigh.
What does the law of negligence require?
A person to compensate another for the reasonably foreseeable results of negligent conduct
Responsibility is only assigned when injury should have been reasonably contemplated.
What is the duty of care concept in tort law?
A consideration of whether defendants are obligated to conduct themselves with care toward the injured party
It is fundamental in determining negligence.
Who are professionals expected to perform their duties competently?
Engineers, architects, directors, officers, general contractors, plumbers, and electricians
They must follow industry standards and exercise reasonable care.
What responsibility do occupiers of property have?
To keep premises safe for third parties entering the premises
This duty has developed from common law case law precedents.
What are hold-harmless agreements and indemnity agreements used for?
To transfer liability and direct who pays for expenses related to defending an action or satisfying a judgment
These clauses are often found in contracts.
Define bailor.
The owner of property who temporarily transfers possession to another
The bailee is the party receiving the property.
What duty does a bailee owe to the bailor?
To take care of the property received
The level of duty is affected by the basis on which the property changed hands.
What must be true for someone to be held liable for damages?
The act or inaction must foreseeably cause damages and be the direct or proximate cause of the loss
Liability is based on foreseeability of both the action and the extent of damages.
What is the standard of reasonableness in duty of care?
An obligation imposed on parties based on a standard of reasonableness
It applies to professionals, occupiers, and bailees.
What types of damages do liability policies typically cover?
Compensatory damages
Damages are usually divided into special (economic) and general (non-economic) categories.
Fill in the blank: A _______ is a person who receives property for an agreed temporary period of time.
bailee
The bailee has a duty to care for the property.
