CBL - Tort law
Intentional
Unintenional
verbal or physical
business
Negligence
Product Liability
occupiers liability
professional negligence
strict liability tort
assault
battery
false imprisionment
Defamation
writte: Libel
verbal: Slander
passing-off
inducing breach of contract
unlawful means
Elements of Negligence
a duty of care is owed
standard of care was breached
breach caused plaintiff harm
defendant should've foreseen the potential harm
duty of care: Legal Responsibility to avoid causing harm to others
standard of care: a degree of care that a reasonable person must take in order to prevent harm to others
a reasonable person is a normal, prudent individual who acts according the generally accepted practices and conducts properly in a manner generally accepted by society
Causation
foreseeability
fiduciary duty: enhanced duty of care (as in medic and patient)
Property
Trespass to land
Nuisance
Privacy
Property
Trespass to land
Nuisance
Law
Private Law: Individuals and Individuals
Public Law: Government and Individuals
Administrative Law
Constitutional Law
Criminal Law
Tax Law
Contract Law
Tort Law
Corporate and Commercial law
Property Law
Law can be Substantive: establishes the criteria what we can or not due
Law can be Procedural: establishes the process of how law is enforced
CBL - CH3 - Tort Law
What is a tort?
an act or omission that causes injury to people or damage to property or economic interests, other than an injury that arises from a breach of contract.
the act or omission can give rise to both
criminal liability
tort liability
tort law focuses on the harm caused by individuals, property, and businesses by the act or omission
it is the person who must bring action for damages arising from a tort.
the state prosecutes crimes, does not prosecute torts.
plaintiff those pursuing or commencing a lawsuit
tort action is the lawsuit based on torts
defendant, is the party being sued in a lawsuit; or person accused of an offense.
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
Some torts have become statutes
once they become statutes, the state assumes responsibility for enforcing it
courts generally encourage the use of statutory remedies wherever possible.
Why is Tort Law important to business people?
torts can occur in all contexts, but businesses need to be aware of the risks of tort-based litigation can bring.
Tort law is an essential business tool, when harm is suffered by your business due to the acts or omissions of another, and no breach of contract is involved, there may be a remedy for your business in tort.
Torts are expensive, probably the most significant potential source of unexpected expense for business
Tort judgements are relatively less predictable, and larga awards can plunge a business into insolvency
Torts are a public relations nightmare, it can impact the business reputation. Goodwill can evaporate in the face of bad press relating to a tort, even if the plaintiff's case is proven to be unfounded.
Sensitive handling of tort matters, knowing when to fight and when to settle, can help protect a business's valuable reputation
Principle, elements, categories and acts
Vicarious Liability, liability imposed on one party (often an employer) for the harmful actions or omissions of another (often an employee)
a business can be held responsible, or liable, for injuries that result from the actions of their employees or the independent contracts who provide services in connection with the business.
Vicarious liability holds an employer responsible for the torts that its employees commit while doing their jobs.
How to avoid Vicarious Liability?
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
Negligence Act, joint and several liability
Liability is the state of being responsible to pay compensation for another party's loss.
Joint liability arises in situations where there are two or more tortfeasors, such as an employee and the business that employs him, or partners in a firm, or two engineers who worked on a project.
Contributory Negligence, this allows the court to hold the plaintiff partially responsible for their own injuries.
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.
Elements of a Tort
a wrongful act, an intentional act or omission or a breach of a duty of care owed to the plaintiff by the defendant
Causation, that the wrongful act of the defendant caused the harm
Quantifiable harm, that the harm is measurable in a manner recognized by the law.
Categories of Torts
Unintentional Torts, careless or negligent actions that cause unintended harm to people or business
Struct Liability Torts, it requires no proof of negligence
Torts that can be either Intentional or Unintentional
Intentional Torts, when a person or business deliberately harms another.
Business Torts
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.
Torts Involving Verbal or Physical Aggression, employees losing their temper, or because you are in repossesions.
Torts Involving Property
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
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.
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
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.
Product Liability, when a manufacturer carelessly designs, produces, or distributes goods that injure a member or members of the public;
occupier's liability, which occurs when a business carelessly fails to keep its premises safe for its customers and other visitors to enter
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
Elements of Negligence
the defendant owed them a duty of care
the defendant breached the standard of care that was reasonable in the circumstances
the breach caused the plaintiff loss or injury
the defendant should have foreseen the plaintiff loss or injury
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.
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.
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.
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.
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, 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.
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.
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.
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.
Defending against tort actions
Failure to prove tort
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.
Contributory negligence, role that a plaintiff may play in negligently contributing to the cause or aggravation of their own injury
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.
Voluntary assumption of risk, defence based on proof that the plaintiff knowingly entered into a risky situation and thereby assumed responsibility for any injuries
waiver of liability, acknowledgement of the risks in an activity and an agreement to assume them.
a warning can act as a waiver.
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