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BU231 MIDTERM > Unintentional Torts > Flashcards

Unintentional Torts Flashcards

1
Q

Negligence

A

Is the careless causing of harm to a person or property of another

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2
Q

Negligence 4 Part Test

A
  1. The defendant owed the plaintiff a duty of care
  2. The defendant breached that duty of care by falling below the standard of care
  3. Damages/ injury are caused
  4. The defendant’s actions caused the damages/injury
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3
Q

Duty of Care

A
  • the legal duty imposed on every one to take reasonable care to avoid injury to others
  • the injury must be foreseeable
  • the duty is not all encompassing (owe a duty to the other person)
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4
Q

Test for Duty of Care

A
  1. Is there a sufficiently close relationship between the parties
    - So that, in the reasonable contemplation of the [defendant], carelessness on its part might cause damage to that person (reasonably foreseeable)
    Ex – doctor-patient, lawyer- client
  2. Are there considerations which ought to be negative or limit
    - The scope of the duty
    - The class of persons whom it is owed
    - The damages to which a breach of it may give rise
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5
Q

Standard of Care

A
  • After you have confirmed and proved that they owed a duty of care, did they breach the standard of care?
  • Objectively as a third party, would a reasonable person have done that given the circumstances (has to be contextual
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6
Q

What is a reasonable ordinary person?

A

To find this there should be standards (health and safety), regulations, following practices, finding experts to explain how things are done (academic or practical experts)

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7
Q

Special Standard of Care

A
  • The reasonable and competent person in a specific profession, where someone requires a specialized skill and knowledge
  • The professional standard of care
  • Children – the standard of a reasonable child of the same age, unless engaging in an adult activity
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8
Q

Other factors when considering the standard of care (not a part of negligence test)

A
  • Degree of the likelihood that harm will occur
    Ex - ice cream scooper vs doctor
  • The potential severity of the harm
  • The social utility of the action involved
    Do not want to set the standard too high and scare employees off, Ex – nurse vs doctor
  • The feasibility of eliminating risk
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9
Q

Causation

A
  • Only entitled to the damages where there was a breach in the standard of care (not the ones prior to the incident)
  • If there is no harm/ loss there is no negligence
  • But for test
  • The defendant does not need to be the sole cause of the harm, it is sufficient for the plaintiff to show that the defendant’s conduct was a cause of the harm/loss
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10
Q

But for test

A
  • Would the injury have occured “but for” the conduct of the defendent? If test, then this is the cause of the loss/harm
  • Ex – texting and driving and hit black ice, breached the standard fo care by texting and driving, but even if you were paying attention it would be likely that you would have hit the car
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11
Q

Remoteness

A
  • The conduct of the defendant cannot be too removed/ remote from the harm caused
  • Element of foreseeability is required – the fact that harm could occur (but not necessarily the specific damages) had to be foreseeable at the time of the tort
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12
Q

Damages

A
  • There must be damages to sue
  • What damages did they suffer?
  • Have to prove the damages – have receipts, and all the evidence
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13
Q

Types of Damages

A
  1. Special (pecuniary)
  2. General
  3. Punitive
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14
Q

Special (pecuniary)

A
  • quantifiable (sales losses)
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15
Q

General

A
  • non-quantifiable, courts do their best to compensate
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16
Q

Punitive

A
  • rare
  • punishment for egregious conduct
  • ex – out of pocket losses, for a car accident it would be hospital bills, PT, lost wages)
17
Q

Professional Negligence

A
  • Professionals (lawyers, doctors, accountants) may be held to a higher standard and must avoid conflicts of interest
  • What would a reasonable professional done in that situation
  • Specialists within fields of expertise are held to a higher standars than generalists
  • Ex – heart surgeon has a higher standard of care than a family doctor when completing heart surgery
18
Q

Product Liability

A
  1. Negligent Design
  2. Negligent Manufacture
  3. Failure to warn
19
Q

Negligent Design

A
  • The product that was made
  • Ex – the car itself
20
Q

Negligent Manufacture

A
  • The manufacturing plant
21
Q

Ongoing Duty to Warm

A
  • Dangerous products
  • Products that are discovered to be defective
  • Scientific and technological advancements
22
Q

Prove Product Liability

A

The plaintiff must prove that the product, as designed, manufactured, or labelled, fell short of reasonable standards which failure caused the products to be dangerous and harmful

23
Q

Occupier’s Liability Act

A
  • owes a duty of care for people who come onto their land
  • Ex – need to shovel the driveway when it snowns
24
Q

Occupier

A

person who has control over the property

25
Q

Occupier’s Liability Act to Trespassers

A
  • Still owe a duty of general humanity
  • Ex - Occupier cannot set traps – cannot cause deliberate harm
26
Q

Where the use of land is to encourage activity

A
  • user of premises willingly assumes all risk
  • Ex – people who own a lot of land up north and allow people to cross country ski. We want to encourage landowners to allow the public to use it
27
Q

Where the use of land is to encourage activity

A
  • user of premises willingly assumes all risk
  • Ex – people who own a lot of land up north and allow people to cross country ski. We want to encourage landowners to allow the public to use it
28
Q

Defences to Negligence

A
  1. Contributory Negligence
  2. Voluntary Assumption of Risk
29
Q

Contributory Negligence

A
  • Plaintiff contributed to their own injury (in part) and therefore should be partially liable for their own injuries
    Occurs in three ways
    1. Plantiff can contribute to the incident that caused the injury
    2. The plantiff can expose themselves to a risk of injury
    3. The plantiff can fail to take reasonable steps to minimize the injury after it has occured (mitigation)

Partial defence – the court will apportion damages to the degree of fault or negligence on the part of the defendant

30
Q

Voluntary Assumption of Risk

A
  • The plaintiff is engaged in an inherently risky activity
  • The plaintiff knew of the risks and voluntarily assumed the risk

Complete defence –
Took on the risk and knew all the possible risks
This is the equivalent of consent

31
Q

Failure to Warn

A

learn something later, it is the company’s duty to warn the customers

BU231 MIDTERM (10 decks)

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