Torts

Question 1

tort

Answer 1

a private or civil wrong or injury, one that involves negligence and may arise independently of contract

Question 2

two categories of tort

Answer 2

1. unintentional tort
   - negligence and negligent misrepresentation
2. intentional tort
   - trespass, defamation and fraud

Question 3

defamation

Answer 3

communication of a false statement about another that harms their reputation

Question 4

four elements to prove in order to succeed in a negligence claim

Answer 4

1. defendant owed the plaintiff a duty of care
2. defendant breached the duty of care
3. plaintiff suffered a loss
4. breach was the cause of the plaintiffs loss

• defendant has to prove ANY ONE of these 4 elements do not exist in order to defeat the claim

Question 5

two categories for a breach of standard of care

Answer 5

1. lack of skill

2. lack of care

Question 6

proximate cause

Answer 6

an event sufficiently related to an injury that the court deems the event be the cause of the injury

Question 7

negligent misrepresentation

Answer 7

• misrepresentation of facts that breaches duty of care
• involves a statement rather than an action
• injured party relied on erroneous information and suffered a loss
• involves pure economic loss

Question 8

innocent misrepresentation

Answer 8

• misrepresentation with no intention to deceive

Question 9

fraudulent misrepresentation

Answer 9

• an untrue statement of fact that partly knowingly and recklessly used to induce another party to enter into a contract
• must be one of the following
• • untrue facts
• -defendant knows to be untrue
• • intended to induce plaintiff to act upon
• • plaintiff suffers
• • failure to disclose information

Question 10

four guidelines for fiduciary duty

Answer 10

1. the fiduciary (party) has the ability to exercise some discretion/power
2. the fiduciary can exercise power/discretion to affect beneficiaries legal interests
3. beneficiary is vulnerable to or at the mercy of the fiduciary
4. relationships don’t arise between commercial parties

Question 11

strict liability tort

Answer 11

• plaintiff only needs to prove that the defendant entered or encroached onto their property with out authorization
• don’t have to prove negligence

Question 12

trespass

Answer 12

unauthorized entry onto land of another’s

Question 13

duty to warn

Answer 13

duty to warn of impending damages to property, person injury etc…

Question 14

two reasons for defects to occur

Answer 14

1. product has not been manufactured in accordance with the specifications
2. product was manufactures according to the specifications but were inadequate

Question 15

limitation period

Answer 15

• time for commencing legal action

- 2 years form the breach

Question 16

patent defect vs latent defect

Answer 16

patent: obvious defect that is identifiable
latent: hidden defect (computer bug)

Question 17

three potential protections from liability

Answer 17

1. parties to a contract agree on a short time period
2. each limitation statute contains an ultimate limitation period
3. defendant can purchase insurance

Question 18

Joint liability

Answer 18

• all parties found partially responsible for loss

Question 19

contributory negligence

Answer 19

owner is liable for negligence

Question 20

several liability

Answer 20

plaintiff is also partially at fault, so all parties automatically only responsible for their own portions of the losses

Question 21

vicarious liability

Answer 21

• must have an employee/employer relationship

- liability of one party for the fault of another

Question 22

four circumstances where liability can be found when a professional is fully competent?

Answer 22

1. knowledge of inadequate code requirements
2. should have been aware of in adequate code requirements
3. following careless standards
4. when a design is new, need to be aware of different standards