Chapter 4: Negligence Flashcards Preview

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Flashcards in Chapter 4: Negligence Deck (36):
1

4 Elements of Negligence

Existence of Duty to Care
Breach of Duty
Injury resulting from the breach
Proximate cause of the injury by the breach

2

Types of Negligence

intentional and unintentional

3

Types of Liability

Strict and conditional

4

The person committing the tort

Tortfeasor

5

Tort Definition

An intentional or unintentional injury (other than a breach of contract) to the victim's
body
mind
property
pocketbook

6

Reasonable Person Test

what would a careful, thoughtful person in the same circumstance have done?

not mentally ill or children

7

Purpose of Tort Law 6

Specifically to restore the injured party to the position he or she was in before the injury

regulation
deterrence
compensation
dispute resolution
education
prevention

8

Strict Liability

A defendant is automatically liable even though no injury has occurred

9

Intentional Torts

Assault (threat of serious unwanted touching)
Battery (act of unwanted touching)
Trespass
Conversion- a person w/o authority wrongfully takes, retains or disposes of the personal property of another
False imprisionment
Intentional infliction of mental suffering
deceit (fraudulently misleading another)
intentional interference with a contract (urging someone to breach a binding contract)
deceit

10

Burden of Proof

Civil 51%
Criminal 98%

11

Defences to Intentional Torts (7)

Consent
Self Defence
Defence of Property
Defence of a 3rd person
Necessity
Legal Authority
Lack of intention

12

Negligence (Unintentional Torts)

A defendant will be liable for a reasonably foreseeable consequence of their actions

51% probable consequence of an act

13

Thin Skull Rule

a tortfeasor who can reasonably forsee some injury as a consequence of their conduct may be liable for more serious consequences

14

The thing speaks for itself

res ipsa loquitur

15

Res ipsa loquitur

the thing speaks for itself

if a plantiff establishes that the injury could not have happened but for some negligence, then the thing speaks for itself

caused by misadventure not normally occurring w/o negligence
the thing causing the injury was w/in the defendants control
the plaintiff did nothing to provoke the accident
the plaintiff had no prior knowledge of the danger

16

Negligence per se

failure to meet the requirements of a government law.

you are guilty of negligence even if there is no injury

17

Contributory Negligence

if you are injured partly or solely because of your own actions

18

Voluntary Assumption of Risk

a person who participates in an activity knowing the injury that could result has VOLUNTARILY ASSUMED a risk

19

Voluntary Assumption of Risk (4)

knew about it
understood the risk
had a choice to avoid the risk
voluntarily assumed the risk
defendant was not in breach of statutory duty from which the injuries flowed

20

Last Clear Chance

When the injuries to a plaintiff are a result of their own actions blame can be placed on someone else when

the plaintiff is negligent
bc of their own negligence, the plaintiff finds themselves in a dangerous situation
defendant is aware of the danger the plaintiff is in
the defendant has an opportunity to avoid the injury by exercising his on ordinary care, but fails to do so.

21

Waivers

When on party agrees to not to try to impose liability on the other if there is an injury

22

Disclaimer

attempts by one party to unilaterally impose on the other the terms specified in a waiver

23

Vicarious Liability

employers are responsible for the torts of their employees

24

Negligent Misrepresentation

If someone negligently gives advice or information knowing the recipient intends to rely on it and the recipient does rely on it to his or her detriment

duty of care is breached

25

Passing off

when the public is mislead into believing that one companies goods/services are those of a similar brand/product.

26

Defamation

publication of a false statement about someone

27

Slander

spoken defamations

28

Libels

written defamations

29

Injurious Falsehood

defaming a business, property or product

30

Food and Drug Act

food service operators may be held strictly liable for selling contaminated food

31

Sale of Goods Legislation

Implied warranties about the goods sold

32

Occupier's Liability Legislation

Occupiers owe a duty of care to thoes entering on, or in the vicinity of, their premise

33

Invitee

someone who enters upon the occupiers premises while having with the occupier a common interest of mutual advantage (restaurant patron, customers, staff etc)

34

Licensees

someone who is on the premise with the express or implied permission of the occupier (job applicants)

35

Trespassers

on the premise without the implied consent of the owner

36

Prevention of Negligence Claims

SOPs
Staff Training
Regulatory Adherence
Record Keeping
Waivers and Disclaimers
Releases
Insurance