Unintentional Torts

Question 1

What are the three major unintentional torts talked about in this course?

Answer 1

1. Negligence
2. Professional Liability
3. Negligent misrepresentation

Question 2

What are the four elements required to prove negligence? How must each four be proven?

Answer 2

1. A duty of care
2. Breach of standard of care
3. Causation
4. Damages

All four on a balance of probabilities.

Question 3

What is negligence?

Answer 3

Careless conduct, falling below a standard of care, which causes injury to another.

Question 4

To what extent must a standard of care be met?

Answer 4

To that of a reasonable person, not to perfection.

Question 5

What is misfeasance?

Answer 5

A wrongdoing.

Question 6

What is nonfeasance?

Answer 6

A failure to act.

Question 7

What are the two parts of the 2 part test to determine whether there is a duty of care?

Answer 7

Part 1: reasonable foreseeability test

Part 2: Anns policy test

Question 8

What is the basis of the reasonable foreseeability test?

Answer 8

Is it reasonably foreseeable that the defendant’s conduct is likely to cause injury?

Question 9

What is the basis of the Anns test?

Answer 9

If injury or loss IS reasonably foreseeable, are there any policy grounds for NOT imposing a duty of care?

Question 10

What test is used to determine a breach of standard of care? What is the basis of this test?

Answer 10

A reasonable person test. Did the defendant’s conduct fall below the standard of care of a reasonable person in the same circumstances?

Question 11

What is the correlation between risk and standard of care?

Answer 11

As risk increases, so does standard of care.

Question 12

Is inexperience a good excuse for breaching the standard of care?

Answer 12

No, novice professionals must perform to the standard of the reasonable professional.

Question 13

Are parents vicariously liable for the torts of their children?

Answer 13

No, they are only liable if they are negligent themselves.

Question 14

What are the two parts of the 2 part test to determine whether there is causation?

Answer 14

1. The “but for” test

2. the “remoteness” test

Question 15

What is the basis of the “but for” test?

Answer 15

Would the injury have occurred BUT FOR the defendant’s conduct? (physical causation)

Question 16

What is the basis of the “remoteness” test?

Answer 16

Was the injury/loss too remote to have been foreseen by the defendant?

Question 17

What is the thin skull rule?

Answer 17

We take our victims as we find them, if they are particularly frail, too bad. If defendant is liable for injury, they are liable for the full extent of the victim’s injuries, no matter how bad.

Question 18

What are two defenses to negligence?

Answer 18

1. Contributory negligence

2. Voluntary Assumption of risk

Question 19

What is contributory negligence? How is liability shared in this case?

Answer 19

A defense to negligence where the plaintiff contributed to their OWN injury. Liability is apportioned by percentage.

Question 20

What is voluntary assumption of risk? How is liability shared in this case?

Answer 20

A defense to negligence stating the defendant is not liable if the plaintiff assumed the risk. All or nothing, no shared liability.

Question 21

Do waivers stand up in court?

Answer 21

Rarely ever, unless there is proof that the plaintiff has been made very aware of it, read it thoroughly, and understood what was in it.

Question 22

What are three cases addressing the question of whether or not the social host of an event serving alcohol is liable for guests who impose injury? What were their conclusions?

Answer 22

1. Holton v. McKinnon - social host of licensed establishment found liable, did not take reasonable precautions to ensure safety of plaintiff
2. Stewart v. Pettie - social host of licensed establishment found not liable, reasonable to assume that non-drinker would be DD
3. Childs v. Desormeaux - social host of BYOB party found not liable.

Question 23

Who is defined to be an occupier?

Answer 23

Anyone who has control of the property, can either be owner or tenant.

Question 24

Are visitors to property owed a duty of care by the occupier? Explain.

Answer 24

Yes, the occupier must take reasonable steps to ensure they are reasonably safe.

Question 25

Is a trespasser to property owed a duty of care by the occupier? Explain, as well as mention any exceptions.

Answer 25

Yes, but minimally. No deliberate traps or injury. If trespasser is a minor, law will treat him/her almost like a visitor.