Torts

Question 1

Torts

Answer 1

The word “tort” means “wrong” in French. Tort law acts to compensate persons who have suffered damages at the hands of another. Tort law determines the legal responsibility of the defendant and the value of the harm. Different types of torts look at different types of circumstances. There are two basic elements to torts: damages and compensation.
There are two types of torts: intentional torts and negligence. Torts are acts or omissions that result in injury or harm to an individual in such a way that it leads to a civil wrong that occurs as liability

Question 2

tortfeasor

Answer 2

The actor of the wrongs has historically been called a tortfeasor. When a wrong is committed by a tortfeasor, damage is done to another. The offender, or tortfeasor, or defendant, who commits the act is the accused in a civil suit. The plaintiff, who is the injured party, files the lawsuit on which the civil court will make a decision. The offender ultimately becomes the defendant, who must respond to the accusations of the plaintiff in a civil suit.

Question 3

plaintiff

Answer 3

The plaintiff, who is the injured party, files the lawsuit on which the civil court will make a decision.

Question 4

defendant (civil law suit)

Answer 4

The offender ultimately becomes the defendant, who must respond to the accusations of the plaintiff in a civil suit.

Question 5

Litigation

Answer 5

Litigation: When a person, business, or entity enters into a lawsuit, whether they have filed the lawsuit, or are responding to it, they are entering into a process known as “litigation.” Lawsuits or “actions” are brought before the court for the purpose of enforcing a particular right.

Question 6

Civil law

Answer 6

Civil law is a major branch of the law. In common law legal systems such as England and Canada and the United States, the term refers to non-criminal law. The law relating to civil wrongs and quasi-contracts is part of the civil law, as is law of property

Question 7

Law of Canada

Answer 7

Law of Canada
The legal system of Canada is pluralist: its foundations lie in the English common law system, the French civil law system The Constitution of Canada is the supreme law of the country, and consists of written text and unwritten conventions

Question 8

Harm (tort law)

Answer 8

In tort law, harm can be defined as a loss or disadvantage suffered as a result of the actions or omissions of another

Question 9

Intentional Tort

Answer 9

Intentional torts are committed by an offender who understands that he or she is committing a tort. Intent does not always equate to directly causing an end result. In some cases, the intent may be something else, such as the possession of knowledge that some harm may occur. The harm may result from intentional action, or due to some circumstance that the offender feels will be excusable. Intentional torts and negligence arise based on intentional and unintentional acts committed by individuals. Damages are decided in civil courts by first determining fault and harm, and then by assigning a remedy. Sometimes, the damage can be excused if the circumstances indicate that the defendant acted with permission, or in his or her own defense. The main standard used to make a decision is the reasonable standard of care: what would a reasonable person do?

Question 10

Negligence Tort

Answer 10

Negligence occurs when an individual does not exercise duty of care. Torts are acts or omissions that result in injury or harm to an individual in such a way that it leads to a civil wrong that occurs as liability. This loss can be physical harm, such as slipping and falling on a wet floor, or personal property harm, such as allowing water to ruin furniture. The damage is the result of what someone else did, or did not do, either intentionally or based on a lack of reasonable care.

Question 11

An Excusable Action

Answer 11

Some circumstances that could allow the defendant to argue that the action is excusable would include: permission by the injured party, or defense of property, self, or another person (Kionka, 2013). If the injured party agrees to allow the defendant to juggle knives and one slips and causes harm, the action might be excusable to some extent. If a defendant caused harm to the plaintiff’s car while trying to avoid being hit by the car, it would likely be excusable.

Question 12

Intentional torts

Answer 12

Different types of intentional torts are based on different circumstances and face different remedies, or means of recovering losses:
Assault
Malicious prosecution
Defamation
Invasion of privacy

Question 13

Assault (intensional tort)

Answer 13

Assault is an intentional tort that occurs when an individual has a reasonable apprehension of an intentional act that is designed to cause harm to himself or herself, or to another person.

Question 14

Malicious prosecution (intensional tort)

Answer 14

Malicious prosecution occurs when an individual files groundless complaints to initiate a criminal matter against another.

Question 15

Defamation (intentional tort)

Answer 15

Defamation occurs when an individual intentionally creates and promotes malicious falsehoods about another. Defamation can occur in two ways: slander and libel. Slander is, in effect, when falsehoods are spoken. Libel occurs when falsehoods are expressed in written or other recorded forums.

Question 16

Invasion of privacy (intentional tort)

Answer 16

Invasion of privacy involves unwanted production of negative public information. Different standards apply to invasion of privacy based on the status of the individual as a public figure.

Question 17

Slander (intentional tort, type of defamation)

Answer 17

Slander is, in effect, when falsehoods are spoken. Slander is a subtype of defamation–an intentional tort.

Question 18

Libel (intentional tort)

Answer 18

Libel occurs when falsehoods are expressed in written or other recorded forums. Libel is a subtype of defamation–intentional tort.

Question 19

Negligence (tort law)

Answer 19

Negligence is a type of tort that has two meanings: It is the name of a cause of action in a tort, and it is a form of conduct that does not meet the reasonable standard of care. For an action to be deemed negligent, there must be a legal duty of care, or responsibility to act, based on the reasonable standard in a situation. An individual can be considered negligent if he agreed to watch a child, but did not do so, and then harm came to the child. An individual would not be considered negligent if he did not know that he was supposed to watch the child, or did not agree to watch the child. Negligence is decided by determining the duty of the defendant, whether or not the defendant committed a breach of that duty, the cause of the injury, and the injury itself.

Question 20

A reasonable person

Answer 20

A reasonable person is defined as someone who must exercise reasonable care based on what he or she knows about the situation, how much experience he or she has with the situation, and how he or she perceives the situation. In some cases, this knowledge could be based on common knowledge of community matters, such as knowing that a bridge is closed for repairs.

Question 21

Duty to aid

Answer 21

In some cases, the duty of care is based on a special relationship, which is a relationship based on an implied duty of care. This implied duty of care often comes about as a duty to aid, or a duty to protect another, e.g., a nurse caring for patients in a hospital, or a lifeguard being responsible for swimmers in the guarded area. A passerby does not have a duty to aid, but if the individual tries to help, then he or she is responsible for acting responsibly.

Question 22

The elements of a negligence cause of action

Answer 22

The elements of a negligence cause of action are:
A duty by the defendant to either act or refrain from acting
A breach of that duty, based on a failure to conform to the standard of care by the defendant
A causal connection between the defendant’s action or inaction, and the injury to the plaintiff
Measurable harm that can be remedied in monetary damages

Question 23

Foreseeable probability of harm

Answer 23

Negligence case decisions are influenced by whether or not a defendant could have predicted that an action or inaction could have resulted in the tort, or foreseeability (Baime, 2018). Responsibility is often based on whether or not the harm caused by an action or inaction was reasonably foreseeable, which means that the result was fairly obvious before it occurred (Baime, 2018). A person assisting an inebriated individual into her car could be considered negligent due to the likelihood that harm would come to her while she is driving in an intoxicated state. This situation is an example of the foreseeable probability of harm.

Question 24

Strict Liability (non-intentional tort)

Answer 24

Strict liability provides a remedy when harm is suffered through no intentional fault. The courts needed to create a standard that would cover this form of tort, or one without fault. Strict liability determines liability, or harm, based on reasons other than fault. The mistakes leading to harm can be completely unintentional, and in some cases, unavoidable. Yet, damage is done, and a civil suit arises.

Question 25

abnormally dangerous activity standard (non-intentional torts)

Answer 25

The courts needed to create a standard that would cover this form of tort, or one without fault. The courts came up with the abnormally dangerous activity standard, which assigns responsibility when an individual engages in some form of dangerous activity, even if care is taken to avoid mishap. If a homeowner has horses in a pasture that is bounded by electric fencing, it can be determined that the homeowner exercised reasonable care. However, suppose that the electricity goes down, the horses get out onto the road, and an accident occurs as a result. In this case, the owner is responsible, even though he took reasonable care and the event was unforeseen.

Question 26

Assigning Strict Liability (Abnormally Dangerous Activities test)

Answer 26

For a court to assign strict liability based on abnormally dangerous activities, the activity must meet certain criteria. The court must establish that at least four of the following six factors are present (CCBC Legal Studies, n.d.): The activity poses a high degree of risk of harm to a person, the land of another, or the property owned by another. The harm resulting from this activity would likely be substantial. The use of reasonable care would not eliminate this risk. The activity is not something that would be considered a matter of common usage. The activity is not appropriate for the place where it occurs. The danger of the activity overshadows the benefit it poses to a given community. In essence, the basis for determining strict liability is the extent of the risk involved in the activity.

Question 27

Example of assign strict liability based on abnormally dangerous activities: Pet owner.

Answer 27

This basis could also apply to the ownership of dangerous pets. A dog that is known to be aggressive would qualify the owner for strict liability should it get out and bite someone. The courts would find that the owner knew, or should have known, that the dog was dangerous and had a propensity to cause harm (Kionka, 2013).

Question 28

Trespass

Answer 28

In some situations, the owner of the dangerous activity might not be held liable. One such situation is trespassing. Trespassing occurs as an individual enters or remains upon property owned by another without permission (Kionka, 2013). In the case of trespassing, the owner of the property does not have a duty to make the premises safe based on reasonable care for the trespasser (Kionka, 2013). Also, the owner does not have a responsibility to cancel or alter activities on the premises to avoid endangering the trespasser

Question 29

A case where an owner can be held liable for injury to a trespasser.

Answer 29

When the area in question is a common place for trespassing When the owner knows a trespasser is present When the trespasser needs aid, then the owner has a duty to rescue him or her When the trespasser is a child, and the dangerous activity is deemed as an attractive nuisance, or an attraction that a reasonable child would wish to view. Even though trespassing can present an exception to liability in the presence of a dangerous activity, it is not a given.

Question 30

Product Liability (non-intentional tort)

Answer 30

Individuals are not always the defendants involved in civil suits. Manufacturers, wholesalers, distributors, and retailers can also be named in torts that pertain to products and qualify as strict liability. Some products contain flaws that were not intentionally created; such flaws may not be discovered until an individual suffers harm as a result of using them.

Question 31

Res ipsa loquitor (torts)

Answer 31

It is not always possible to conclusively prove that an act or omission was responsible for the harm (Baime, 2018). As a result, the courts developed the doctrine of res ipsa loquitor, which means that whatever it is speaks for itself. The burden of proof shifts from the plaintiff to the defendant, who must disprove negligence. However, the plaintiff must first establish three factors: The defendant had control over the product in question while it was being manufactured. Under normal use and circumstances, the product would not cause damage or harm, but damage or harm has occurred in the case in question. The behavior of the plaintiff did not significantly contribute to the harm caused. If a car does not stop, people will likely be injured. The manufacturing defect would result in a product liability lawsuit, based on legal responsibility for the harmful consequences proximately caused by the product defect. Since the courts would not be able to see the negligence occurring, the courts would base their decision on res ipsa loquitor and the fact that the brakes would not normally fail under normal use by the driver.

Question 32

The Unreasonably Dangerous Product Standard

Answer 32

In the case of product liability, the court uses an unreasonably dangerous product standard to determine liability. The unreasonably dangerous product would be so dangerous that the danger would be beyond the expectation of the user, and a less dangerous option could have been produced instead (Kionka, 2013). This type of unreasonably dangerous product often falls into one of three categories (Kionka, 2013): A flaw in the manufacturing process that occurred because the manufacturer failed to exercise proper care during manufacturing A defect in the design of the product, which makes it dangerous, and safer alternatives are available and economically feasible The product includes insufficient warnings or instructions for the proper use of the product and its potential dangers

Question 33

Defenses for product liability

Answer 33

There are defenses to product liability claims. In some cases, the plaintiff’s own behaviors contribute to his or her injuries, based on his or her own negligence. This situation is known as contributory negligence. Contributory negligence, when determined by the court, prevents any recovery of damages by the plaintiff (Baime, 2018). So, if the court finds contributory negligence, the plaintiff is unable to recover any damages for the injury. Two forms of contributory negligence are assumption of risk and misuse.

Question 34

Assumption of risk, Defence of product liability (torts)

Answer 34

Assumption of risk is one defense. In some cases, the defendant can argue that the user assumed the risk of using the product if he or she used the product while knowing that the defect in the product created a risk (CCBC Legal Studies, n.d.). An individual who purchases a saw and sees that the guard is too small to cover the teeth, but decides to use it anyway, is assuming the risk of using the product. If the saw cuts the individual, then the manufacturer could argue that the person assumed the risk because he saw the defect, understood the risk, and used the saw anyway.

Question 35

Misuse: defense for product liability (tort)

Answer 35

Another defense is product misuse. In some cases, an individual will use a product in ways that it is not meant to be used (CCBC Legal Studies, n.d.). The user might not be aware of a defect, and he or she proceeds to use the product incorrectly. Misuse by the individual would be to blame for any resulting harm.

Question 36

comparative negligence for product liability torts

Answer 36

Plaintiffs might also be responsible for comparative negligence. With comparative negligence, the plaintiff’s own actions in the use of the product contributed to the harm caused by the product, but the plaintiff might still receive damages (CCBC Legal Studies, n.d.). The amount of negligence on behalf of each part (plaintiff and defendant) is compared to determine the damages to which the plaintiff is entitled (Baime, 2018). If a plaintiff is found to be 30% responsible, and the defendant 70% responsible, then the plaintiff would be entitled to 70% of the damages suffered.