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CBL - Tort law, Elements of Negligence, Law, CBL - CH3 - Tort Law - Coggle…

- - - - writte: Libel
      - verbal: Slander
- - - - fiduciary duty: enhanced duty of care (as in medic and patient)
    - - Trespass to land
      - Nuisance
- - - - Prevent employees and contractors from committing torts through clear policies, sufficient training, and adequate monitoring
      - consider including indemnification clauses in your contracts, provisions that require your employee or contractor to assume liability for their own torts.
      - consider the possibility of criminal or intentionally harmful acts by employees and contractors, and consider the use of specialized insurance, against the risk of employee crime, fraud, or intentional harm.
      - carry sufficient liability insurance to cover the costs of employee and contractor accidents and other risks
  - - - if both are are held liabile for the harm to the paintiff, the negligence act provides the athe plaintiff is entitled to recover the full amount of the damages from either of them.
      - The negligence act enables one to sue one of the joint tortfeasors for the difference based on their "several" liability.
  - - - Struct Liability Torts, it requires no proof of negligence
        
        liability that a court imposes on defendants without the need for proof that the defendants intended to cause harm or that they were negligent
        
        possession of dangerous animals, like a savage dog
        
        contractors conducting blasting operations can be held liable for blast damage on neighbouring lands even though there was no evidence that they conducted the blasting negligently.
        
        if a person makes "non natural" use of their land by bringing, storing, or storing or using a dangerous thing on the land, is liable for any damage to the neighbouring lands caused by the escape of that thing.
      - Negligence, a tort in which a business or individual commits a careless act that results in unintended harm to another. The harm is caused by either the defendant's failure to carry out a duty or the defendant's poor performance of duty.
        
        Product Liability, when a manufacturer carelessly designs, produces, or distributes goods that injure a member or members of the public;
        
        arises out of harm caused by defective or dangerous products, can affect both people and property.
        
        can involve third parties, can involve manufacturers, etc
        
        the best way to avoid them is to test out all scenarios and print all labels and educate the client / or user about the harm that can bring the use of such products
        
        occupier's liability, which occurs when a business carelessly fails to keep its premises safe for its customers and other visitors to enter
        
        occupier, a person who has control of the property and who is therefore in the best position to prevent, detect, and remedy risks
        
        Occupiers owe a duty of care to anyone who enters the property that they are occupying, an occupier's standard of care, (how much and what type of care an occupier needs to take to protect visitors) depends to some degree on the nature of the visit
        
        The Occupier's liability act, has superseded and similified the common law standards of care for occupiers in Ontario. occupiers must take reasonable care to see that people (or property) are reasonably safe when entering business premises. It is limited in the case of criminals and trespassers to dangers deliberately created to cause harm (such as a trap) or dangers created with reckless disregard.
        
        professional negligence, which occurs when a professional, such as a lawyer, accountant, or veterinarian, falls below recognized standards of practice and thereby causes loss or harm while performing their job
        
        all humans make mistakes, but professionals are a bit higher in the ladder because they set the standard for all others, and they are supposed to know and act in a more professional way
        
        if the professional makes a mistake that can be considered unprofessional, then the defendant might be liable.
        
        sometimes, a fiduciary duty is given rise, it is an enhanced duty of care that flows from a relationship of special trust, such as that between a doctor and a patient.
        
        Elements of Negligence
        
        the defendant owed them a duty of care
        
        duty of care is a legal responsibility to avoid causing harm to others through carelessness.
        
        a duty of care rises whenever a business person or corporation becomes aware, or should reasonable become aware, that its actions or omissions could harm another.
        
        the defendant breached the standard of care that was reasonable in the circumstances
        
        standard of care, is the degree of care that a business person or corporation must take to prevent or minimize harm to others.
        
        courts use a reasonable person test to determine the appropriate standard of care on a case-by-case basis
        
        a reasonable person is defined as a normal, prudent individual who acts according to generally accepted practices and conducts their affairs in a manner generally accepted by society.
        
        professionals are subject to a higher standard of care than that of a reasonable person.
        
        the breach caused the plaintiff loss or injury
        
        to obtain causation, a plaintiff must prove that the defendant breached the standard of care owed to her, and that the breach caused, or contributed to, the harm that she suffered.
        
        Use the "But for" test, but for the actions of the defendant, would the harm have occurred?
        
        had the defendant manufacturer's air bag deployed, would the plaintiff have been hurt in the crash? if the answer is no, then the defendant is fully liable
        
        this means the actions of the defendant are said to be a "cause in fact" of the plaintiff's loss.
        
        actions must also pass the "remoteness of causation" test to establish that they are also the "cause in law".
        
        Apply basic "but for" test to establish basic causation
        
        Address multiple causes
        
        to attract liability, a defendant's actions need not be the only cause.
        
        where another cause, such as weather, was not a tort, the defendant bears the full responsibility, (there was no deduction for weather, or natural causes for example).
        
        where another defendant contributed to the harm, liability should be divided between the defendants
        
        where the plaintiff's actions are one of the causes, the principles of contributory negligence should be applied
        
        3 make the defendant liable only for the injuries caused by the defendant
        
        4 apply the "thin skull rule" (a rule that makes defendants liable for harm that happens because the plaintiff has a hidden underlying susceptibility, like a especially thin skull.
        
        5 make the defendant liable only for the injuries and losses that the plaintiff suffered as a result of the defendant's negligence.
        
        the defendant should have foreseen the plaintiff loss or injury
        
        remoteness of damages, the plaintiff must prove that the defendant could, in a general way, foresee the harm she suffered as a result of the defendant's breach of the standard of care owed to her.
        
        the issue of foreseeability, the expectation of whether a reasonable person could predict that a certain result might follow from their actions, is relevant to the kind of harm, and not usually to the degree of harm.
        
        as long as the defendant could have anticipated harm of the general type that actually occurred, the defendant is usually held responsible for all the damage that results.
    - - Torts Involving Property
        
        Trespass to Land, occurs when a person comes onto land without the express or implied permission of its occupier.
        
        trespass usually occurs when a person refuses to leave business premises upon being asked to do so.
        
        Nuisance when the defendant interferes with the use and enjoyment of the plaintiff's property
        
        it comes from: sounds, smells, spills, fumes, vibrations, and many types of pollution.
        
        accidents such as broken water pipes and swage spills can still result in nuisance lawsuits.
        
        Tort of invasion of privacy or intrusion upon seclusion, occur where there is an expectation of privacy, where the privacy is invaded in a manner that is intentional would be highly offensive to a reasonable person, and where harm results.
        
        harm can be limited to Distress, humiliation or anguish
        
        businesses must also be aware of the right o customers and clients to the protection of their personal information, such as names, addresses, and consumer purchase history.
        
        Business owners who collect personal information must ensure that their operation complies with the PIPEDA, and also provincial privacy protection legislation
        
        breaches to privacy laws, unlike the tort of invasion of privacy, need not be intentional to attract penalties.
    - - Business Torts
        
        Passing off, using a product name or design that is similar to that of a more well-known and respected brand.
        
        this tort protects the goodwill that a business has created and provides a remedy when a competitor misrepresents the origin of its product or service.
        
        Inducing breach of contract, when one party breaches a contract it has with another, the innocent party can sue for breach under the law of contract, The tort of inducing breach of contract supports the law of contracts by providing an additional remedy - this one in tort - in cases where the breaching party has been induced to commit the breach by a third party.
        
        the elements for the tort of inducing breach of contract are:
        
        a contract exists
        
        the defendant has knowledge of the contract
        
        the defendant has the intention to induce a breach of the contract
        
        the defendant employs a difrect inducement in an effort to cause the breach
        
        damage is suffered by the plaintiff
        
        tort of Unlawful means, if a form of intentional damage by a third party to the economic interest of a business is not defined as a particular tort, it may be encompassed by the tort of interference with economic relations by unlawful means.
        
        the tort of unlawful means involves breaking laws or committing other torts, these actions expose the defendant business to other lawsuits or criminal charges.
        
        Unfair competition is another way in which businesses can interfere with one another.
      - Torts Involving Verbal or Physical Aggression, employees losing their temper, or because you are in repossesions.
        
        Assault and battery, tort in which the defendant threatens the plaintiff with physical harm
        
        Battery, tort in which the defendant engages in unwanted physical contact with the plaintiff
        
        Assault and battery, any intentionally harmful or socially offensive direct physical contact, it can include violent or sexual contact
        
        False imprisonment, occurs when one person unlawfully restricts the freedom of another, as with security guards
        
        Defamation, tort that occurs when someone makes a statement, to at least one other person, about a person or business that results in a significant loss of respect or reputation in the eyes of a reasonable or right-thinking person in the community.
        
        Defenses to defamation
        
        Truth, if you can prove that your statement is true.
        
        fair comment, if the comment is based on a formed opinion based on a sincere impression after reviewing facts, it might be able to succeed with a defense of fair comment.
        
        Success depends on generally three things
        
        whether the comment is made on a matter of public interest,
        
        whether there is a known or disclosed factual foundation for the opinion expressed
        
        whether the statement was fair, meaning, it cannot be made maliciously, with intent to harm
        
        Injurious falsehood or slander of goods, is when a malicious false statement is made with the intention of harming a product's reputation.
        
        libel, defamation in writenl form
        
        Slander, defamation in verbal form.
  - - - burden of proof, reqyurement that a certain party prove a particular fact at a trial
      - standard of proof, degree to which a party must convincve a judge or jury that the allegations are true
      - Balance of probabilities, standard of proof in civil law indicating that one version of events is more probable than another.
    - - this is a partial defense to many torts that involve negligence and to intentional torts as well.
      - if a contributory negligence defense succeeds, judge apportions, or distributes, the liability between the plaintiff and the defendant.
    - - waiver of liability, acknowledgement of the risks in an activity and an agreement to assume them.
      - a warning can act as a waiver.
- - - - criminal liability
      - tort liability
    - - the state prosecutes crimes, does not prosecute torts.
        
        if the tort is very serious, like a fire, the state might launch a criminal investigation to see if a criminal prosecution is warranted against the individual or business responsible for the damage.
        
        if this happens it would be completely separate from Tort Action
        
        Criminal prosecution seeks to punish
        
        tort action seeks to compensate the injured party
        
        courts generally encourage the use of statutory remedies wherever possible.
    - - once they become statutes, the state assumes responsibility for enforcing it