Unintentional torts Flashcards
negligence, occupier's liability
what falls under unintentional torts?
negligence
professional liability
negligent misrepresentation
define negligence?
careless conduct, falling below a standard, which causes injury to another (reasonable person)
4 ingredients of negligence [that plaintiff has to prove]
- duty of care exists
- breach of the standard of care
- causation: defendant’s conduct caused the injury
- damages: victim suffered an injury or loss
what is misfeasance?
wrongdoing: reckless, careless conduct.
what is nonfeasance?
failure to act; omission.
- may relate to relationship btw parties
2 part test of duty of care?
- reasonable foreseeability test: defendant conduct is likely to result in injury or harm.
- Anns test
donoghue v. stevenson case - duty of care
2 ladies out for lunch, 1 bought the drinks for both of them. the other drank it + got sick. sued the brewery. brewery said there’s no relationship btw them. but courts said it’s reasonably foreseeable that it causes harm to anyone who drinks it. if for public use, liable.
Anns policy test?
if injury or loss is foreseeable, are there any policy grounds for NOT imposing a duty of care?
how to test for the standard of care?
courts use a reasonable person test – did defendant conduct fall below standard of care of a reasonable person in same circumstance?
- as risk increases, so does standard of care.
professionals + standard of care?
inexperience =/= lowering the standard. should know better, novice professional must perform to the standard of the reasonable professional.
parents + vicarious liability?
parents are NOT vicariously liable for the torts of their children. May be liable if negligent to child’s behaviour (failed to watch them)
2 part test for causation
- But for test
2. the remoteness test
what is the but for test?
test for causation.
- would the injury have occurred but for the defendant’s conduct?
- if injury would’ve happened anyway, defendant did not cause
- established physical causation
what is the remoteness test?
test for causation
- was the injury too remote to have been foreseen
- if unforeseeable, defendant is not liable
what is the thin skull rule?
- party of remoteness test for causation
- take our victims as we find them - if particularly frail, and injury is worse than if same thing happened to healthy person - too bad, liable for full extent of that individuals injury.
what is damage?
4th ingredient to negligence
- actual loss or injury suffered by plaintiff
- look to precedent to see compensation
- damages may include compensation for future loss of earnings.
defences to negligence
- contributory negligence
- voluntary assumption of risk
what is contributory negligence?
defence to negligence
- plaintiff contributed to his own injury
- Court directed to apportion blame + liability
- if plaintiff is contributorily negligent, liability is apportioned by %
What is voluntary assumption of risk?
volenti non fit injuria: law does not aid one who “consents” or participates voluntarily
- defendant not liable if plaintiff assumed the risk
- ALL OR NOTHING
considerations when assigning voluntary assumption of risk?
- did plaintiff know the risk? (physical risk)
- did plaintiff waive his right to sue (legal risk)
- must be informed consent (if waiver signed, plaintiff must have read + understood what he signed
is a social host liable?
law is in flux, social host liability is stricter than in previous years, but case-dependent.
considerations for liability - questions.
- liable is someone gets injured?
- according to common law or statute law?
- difference if guest or trespasser?
- age of victim?
continuum of duty for occupier’s liability
high duty of care for invitee, less for licensee and least, minimal duty of care for trespasser
who is an occupier?
landlord or tenant
who is a visitor?
anyone there lawfully as well as whose presence has become unlawful but who is leaving.
what duty does one owe to visitors?
duty to take reasonable steps to ensure they are reasonably safe.
- responsible for condition of premises, and activities/conduct of third parties on the premises
is there a way to reduce one’s potential liability?
- visitor voluntarily assume risk
- sign or waiver (spell out what’s happening, need clear understanding)
- warning about what the danger is
what duty does one owe to trespassers?
adults = no duty minors = if know/suspect children are trespassing, occupier is liable if danger exists, unless took steps to ensure safety.
factors court will use when determining whether occupier acted reasonably to protect trespasser?
- age of child
- ability of child to appreciate the danger
- burden on the occupier of eliminating the danger
relevant acts of negligence?
occupiers liability act
contributory negligence act
