Unit 3 Flashcards
What is mitigation?
minimizing a party’s damages from breach of contract or from the commission of a tort
Mitigation refers to the avoiding or reducing of the plaintiff’s losses, and the plaintiff has a responsibility or duty to mitigate. Courts will often reduce an award of damages by the amount that could have been reasonably mitigated. The plaintiff must do that which is expected of a reasonable person to minimize his or her losses resulting from a breach of contract.
For example, if a dentist breaches a contract of employment by firing a dental assistant for no sufficient cause, the dentist is in general liable to pay the employee for her lost income over the life of the contract. The dental assistant is not allowed, however, to just sit at home and collect the money from her former employer; she has an obligation to look for and obtain another suitable job so that her losses (for which the dentist is liable) are reduced. If she does not do so, a judge could reduce the amount of damages awarded to her as a result of her failure to mitigate her damages.
What is “duty to mitigate”?
duty to mitigate a party’s responsibility to minimize his or her damages from breach of contract or from the commission of a tort
What does remoteness mean in contract law?
remoteness the degree to which the consequences of a contract breach or the commission of a tort flow, directly or indirectly, from the breach or the tort
remoteness test provides that only those losses that flow naturally from the contractual breach are recoverable. Only those damages that can be reasonably foreseen at the time of forming the contract will pass the remoteness test and are therefore recoverable.
For example, if the dental assistant discussed above has been improperly fired by the only dentist in town, she may be able to recover from the dentist her costs of moving to another town to take another job (and, thus, mitigate her damages) because, at the time the contract was entered into, it was reasonably foreseeable that the dental assistant would be forced to move to another town to find work if she were fired. On the other hand, if the dental assistant drives her brand new car into a tree because she is so angry at the dentist that she is not paying attention to her driving, she will not likely be able to force the dentist to pay for the car repairs. It is not reasonable to expect the parties to an employment contract to foresee that improperly firing an employee could lead to a smashed car.
Tort can be broken into two categories, what are they?
Tort law applies to a wide range of legal disputes involving injuries to people or property, usually outside the context of contract. Because of the breadth of the doctrine, tort law is divided into subcategories, the most important of which are negligence and intentional torts. The defendant in a tort suit is the tortfeasor, and the remedy sought by a tort victim is almost always monetary damages. All torts require proof of fault as a basis for imposing liability, although fault is measured differently for different classes of tort.
What is the most important distinction between negligence and intentional tort?
the presence or absence of intent. Recklessness lies between negligence and intentional tort in terms of an appreciation of the consequences of one’s behaviour. The person who is reckless either does not pay attention to the consequences of his or her behaviour, or else is aware that harm may result but proceeds anyway. Where there is intent, the general principles of intentional tort will apply, but where there is only recklessness, carelessness, or negligence, the principles of negligence will govern. Finally, other torts, such as nuisance, cannot readily be classed in either category.
What is a duty of care?
duty of care a legal duty owed by one person to another based on a relationship or on the doctrine of foreseeability
is the central principle of negligence law, without which no liability can flow, no matter how awful the conduct of the alleged tortfeasor. As its name implies, negligence does not depend on intentional wrongful action or recklessness for the imposition of liability.
What does standard of care mean?
standard of care the standard by which discharge of a duty of care is measured, which depends on the relationship between the parties and the circumstances under which the duty arises
negligence judges the execution of every duty of care by reference to a corresponding standard of care and imposes tort liability wherever a tortfeasor’s behavior falls below the standard and the damages suffered by the victim are not considered to be too remote.
Duty of care?
One person’s duty of care to another person is the foundation on which fault is established in a negligence action. In the absence of a duty of care, there is no liability in negligence because the law is unwilling to place obligations on people without reason or reciprocity.
Duties of care often accompany relationships—neighbour to neighbour, host to guest, parent to child—but they can also arise between strangers, as between two drivers on a highway. Foresight need not be actual. A tortfeasor who is thoughtless as to the potential victims of his or her actions will usually be held accountable on the basis that foresight was reasonable in the context. For example, a homeowner owes a duty of care to people using the sidewalk in front of his or her house to make sure that it is as reasonably free and clear of snow and ice as circumstances permit. The law will also impose liability on someone who was not directly involved in the wrongful act but who has responsibility for the tortfeasor in some capacity. The duty of care that is imposed is known as vicarious liability. For example, statute law imposes vicarious liability on the owner of a car if the driver is involved in a car accident, even if the owner was not present at the time.
What is the foreseeability a test?
foreseeability a test to determine whether a reasonable person could expect that a certain result may follow from his or her act; typically, an objective precondition to imposing a duty of care or to imposing liability for a particular class of damages the plaintiff must prove, first, that the defendant acted despite a foreseeable risk of injury and, second, that the plaintiff was within the scope of foreseeable victims of that injury. If the defendant, in committing the tort, could foresee that a particular person or class of persons might be injured by his or her actions, then the tortfeasor is said to have had a duty of care to that person or class of persons.
What does vicarious liability mean?
vicarious liability imposition of liability on a person for the acts of another, because of the nature of the relationship between the two, even if the person was not present
Standard of Care
Once a duty of care has been attributed to the alleged tortfeasor, the court must determine whether that duty has been met. To do that, the behaviour of the tortfeasor is compared with a legal standard of care appropriate to the circumstances. The standard used corresponds with the nature of the duty of care, with some duties, such as those between a parent and child, attracting a higher standard of care than others (such as duties owed to strangers). The basic tort standard of care, applied in the absence of special factors, is that of a reasonable and prudent person in the same circumstances.
IN order for the court to impose tort liability they must?
To impose tort liability for an injury, the court must accept the plaintiff’s argument that the actions of the defendant were the “cause in fact” of that injury or, in circumstances of multiple causation, that they were a significant and substantial factor in the occurrence of the injury. To establish cause in fact, the plaintiff must prove to the court that the actions of the defendant were a major contributing factor, if not the only contributing factor, to the occurrence of the event that caused the plaintiff’s injuries.
What is contributory negligence?
contributory negligence the role that a plaintiff or victim may play in negligently contributing to the cause of or aggravation of his or her own injury
One of the most familiar examples of this is that of the car accident victim whose injuries are aggravated by failure to wear a seat belt. In such a case, the plaintiff is said to have been contributorily negligent.
What is the joint and several liability a rule?
Joint and several liability a rule that allows a plaintiff who suffers damages caused by multiple defendants to recover the full amount of damages from any one of them (and that defendant can sue the others for contribution)
For example, car A stops properly for a red light. Car B, following behind, does not stop in time and rear-ends car A. Car C rear-ends car B. The driver of car A is injured and sues the drivers of car B and car C for damages. The judge finds both drivers/defendants responsible (jointly liable) for driver A’s injuries. As between the defendants, the judge allocates 60 percent liability to driver B (severally liable) and 40 percent to driver C (severally liable).
What is the thin skull rule a rule?
thin skull rule a rule that provides that a defendant who causes harm through negligence is responsible for the full extent of the harm, even if a vulnerability specific to the plaintiff made the harm more serious than would normally be expected
In some cases, the multiple causes of an injury do not all occur at the same time. A minor injury may predispose a victim to a future, much more serious, injury, or a later injury may compound an earlier one. In such cases, the court must reconcile the rule that defendants take their victims as they find them (discussed later) with the principle that defendants should be held responsible only for foreseeable damage substantially connected to their own actions. To do this, the court usually tries to determine which part of the injuries proven at trial would have occurred without the defendant’s own negligence, and will not hold the defendant liable for that part unless a rule, such as the “ thin skull rule ” (discussed later), dictates otherwise.
