Unintentional torts

Question 1

what falls under unintentional torts?

Answer 1

negligence
professional liability
negligent misrepresentation

Question 2

define negligence?

Answer 2

careless conduct, falling below a standard, which causes injury to another (reasonable person)

Question 3

4 ingredients of negligence [that plaintiff has to prove]

Answer 3

1. duty of care exists
2. breach of the standard of care
3. causation: defendant’s conduct caused the injury
4. damages: victim suffered an injury or loss

Question 4

what is misfeasance?

Answer 4

wrongdoing: reckless, careless conduct.

Question 5

what is nonfeasance?

Answer 5

failure to act; omission.

- may relate to relationship btw parties

Question 6

2 part test of duty of care?

Answer 6

1. reasonable foreseeability test: defendant conduct is likely to result in injury or harm.
2. Anns test

Question 7

donoghue v. stevenson case - duty of care

Answer 7

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.

Question 8

Anns policy test?

Answer 8

if injury or loss is foreseeable, are there any policy grounds for NOT imposing a duty of care?

Question 9

how to test for the standard of care?

Answer 9

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.

Question 10

professionals + standard of care?

Answer 10

inexperience =/= lowering the standard. should know better, novice professional must perform to the standard of the reasonable professional.

Question 11

parents + vicarious liability?

Answer 11

parents are NOT vicariously liable for the torts of their children. May be liable if negligent to child’s behaviour (failed to watch them)

Question 12

2 part test for causation

Answer 12

1. But for test

2. the remoteness test

Question 13

what is the but for test?

Answer 13

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

Question 14

what is the remoteness test?

Answer 14

test for causation

• was the injury too remote to have been foreseen
• if unforeseeable, defendant is not liable

Question 15

what is the thin skull rule?

Answer 15

• • 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.

Question 16

what is damage?

Answer 16

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.

Question 17

defences to negligence

Answer 17

• contributory negligence

- voluntary assumption of risk

Question 18

what is contributory negligence?

Answer 18

defence to negligence

• plaintiff contributed to his own injury
• Court directed to apportion blame + liability
• if plaintiff is contributorily negligent, liability is apportioned by %

Question 19

What is voluntary assumption of risk?

Answer 19

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

Question 20

considerations when assigning voluntary assumption of risk?

Answer 20

1. did plaintiff know the risk? (physical risk)
2. did plaintiff waive his right to sue (legal risk)
3. must be informed consent (if waiver signed, plaintiff must have read + understood what he signed

Question 21

is a social host liable?

Answer 21

law is in flux, social host liability is stricter than in previous years, but case-dependent.

Question 22

considerations for liability - questions.

Answer 22

• liable is someone gets injured?
• according to common law or statute law?
• difference if guest or trespasser?
• age of victim?

Question 23

continuum of duty for occupier’s liability

Answer 23

high duty of care for invitee, less for licensee and least, minimal duty of care for trespasser

Question 24

who is an occupier?

Answer 24

landlord or tenant

Question 25

who is a visitor?

Answer 25

anyone there lawfully as well as whose presence has become unlawful but who is leaving.

Question 26

what duty does one owe to visitors?

Answer 26

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

Question 27

is there a way to reduce one’s potential liability?

Answer 27

1. visitor voluntarily assume risk
2. sign or waiver (spell out what’s happening, need clear understanding)
3. warning about what the danger is

Question 28

what duty does one owe to trespassers?

Answer 28

adults = no duty
minors = if know/suspect children are trespassing, occupier is liable if danger exists, unless took steps to ensure safety.

Question 29

factors court will use when determining whether occupier acted reasonably to protect trespasser?

Answer 29

1. age of child
2. ability of child to appreciate the danger
3. burden on the occupier of eliminating the danger

Question 30

relevant acts of negligence?

Answer 30

occupiers liability act

contributory negligence act