Chapter 4: Tort Law

Devon Hodgkins
Flashcards by Devon Hodgkins, updated more than 1 year ago
Devon Hodgkins
Created by Devon Hodgkins about 7 years ago
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Flashcards on Chapter 4: Tort Law, created by Devon Hodgkins on 11/25/2014.

Resource summary

Question Answer
What are the main differences between tort & criminal law? tort law compensates victims who have suffered injury or wrong as a result of the actions of an individual or organization. Criminal law holds citizens accountable for each other under a society's criminal code.
State the three requirements for a successful action under tort law 1) the defendant owed the plaintiff a duty of care 2) the defendant breached that duty of care 3) the defendant's conduct caused injury to the plaintiff.
What is the difference between public nuisance and private nuisance? Public nuisance is an act or omission that affects the lives, safety or conduct of the public or a section of the public. Private nuisance may be injury to the property of someone or the interference to the enjoyment of that property (excessive noise)
what are some defenses against tort of defamation? - Proof that statements are true - Fair comment which covers areas such as political commentary, book or play reviews and critiques. - Absolute privilege which allows statements to be made in certain contexts without a fear of a defamation suit. (members of parliament can make comments to each other within parliament) - Qualified privilege which arises in situation such as a superior giving a report to management regarding an employee's job performance.
What is negligence? and what must a plaintiff substantiate in order to win a case of negligence? Negligence occurs when one party acts in a manner that is unreasonable and below expected standards and it results in harm to another party or their property. plaintiff must substantiate the same three elements as with other tort cases. - defendant owed plaintiff a duty of care - defendant breached that duty of care - defendants conduct cause injury to the plaintiff.
List and describe the facts that are considered by the court when it is reviewing the required standard of care. - How likely was any damage to occur? was the chance high or low? if high, then a higher standard of care is expected. If low, then a lower standard of care might be acceptable. - How serious could the damage be? Is it likely that if something goes wrong, someone would just be inconvenienced? or could he or she be badly hurt? - Who is likely to be affected? If children or invalids are affected, a much higher standard of would be expected than if healthy adults were involved.
To what does the "thin skull rule" pertain? This rule states that one takes the victim as they are found. In other words, the defendant cannot argue that the plaintiff suffered a brain injury due to a pre-existing condition or state, such as a skull that is thinner than average, and therefor the defendant is not fully responsible for all of the damage that ensued.
Which case is most often cited for the tort of product liability and why is it important? The case most often cited in product liability is Donoghue V. Stevenson. This ruling is important because it set the precedent that manufacturers of products owe duty of care to persons other than the actual persons who purchased the product.
What Precedent was set by the Hedley Byrne v. Heller decision? The Hedley Byrne v. Heller decision set the precedent that a negligently made statement which caused the plaintiff to suffer only pure economic loss was deemed cause for recovery of damages.
How does the court normally decide on the level of standard of care required from a professional; in a performance of their duties? The courts base the standard of care required of a professional on what is a reasonable level of care skill expected of a professional of normal competence. The courts measure reasonable care against the established professional standards of the professional organization as well as against the situational factors that may require a higher standard of care than that determined by the professional standards
What is "burden of proof"? This is the requirement for the plaintiff to prove the defendant is liable.
What is Nuisance? Nuisance is the excessive or unlawful use of one's property that affects the life, safety or rights of another citizen or property owner.
What are some defenses to a tort of Nuisance? 1) The damaged causes is negligible or unimportant 2) The property is being used in a lawful manner 3) The damage caused by the action is an unavoidable result of performing an action allowed by statute.
What is trespass to chattels? Trespass to chattels is when personal property is touched for no reason. (slashing somebody's tires)
When is Detinue? Detinue is when personal property is taken without permission.
What is conversion? This is when a piece of property is lent out to be used for a certain purpose and to be returned, but then the property is used for other purposes or not returned.
In defamation, what is the difference between Libel, and Slander? Libel is when defamation is captured, recorded or written, where as Slander is a verbal statement in defamation.
what is the difference between assault and battery? Assault occurs when the other person thinks that they are going to be attacked or feel threatened, whereas battery is when the person is actually attacked or violated.
Intentional Torts consists of what types? - nuisance - trespass to land - trespass to chattels, detinue, conversion - defamation - deceit - false imprisonment - assault & battery
Unintentional torts consist of what types? - negligence - negligent misrepresentation - product liability - occupiers liability - professional liability
What is "remoteness" Remoteness is when it is deemed that there is not a close connection between the wrongful act on the part of the defendant and the injury incurred by the plaintiff. (do not confuse remoteness with physical distance).
what must occur for a case of negligent misrepresentation to happen? - There mus be an untrue statement - It must have been given negligently - There must be a special relationship giving rise to duty of car; and - There must be reliance which is foreseeable.
What is defamation? Defamation is the making of a statement that unjustly damages someones reputation.
How is a tort of deceit successful? - The defendant made a false statement, knowing it would be false or without believing it to be true, with the intention that the plaintiff would act on it. - The plaintiff actually acted on it and suffered loss or damage.
What is False Imprisonment? False imprisonment is the unlawful restraint of another party against his or her will.
What is product liability? and who does this concern? Product liability covers matters arising from negligence in the design, production and sale of the goods or products. This is a concern to the people in the manufacturing sector.
What does Occupier's Liability impose on Property owners? Occupiers liability imposes that occupiers of a property owe a duty of care to those who enter the property and should make reasonable efforts to ensure their property is safe.
What is Strict Liability? strict liability is the liability in which there is no need to prove intent, negligence or fault, as long as it is proven that it was the defendant who caused the damages.
What is vicarious Liability? Vicarious liability is liability that occurs when a person is held responsible for the tort of another even though the person being held responsible may not have done anything wrong.
What is an example of vicarious liability? Employers who are held vicariously liable through actions of their employees.
What is Contributory Negligence? contributory negligence is the recognition that the plaintiff might have contributed to the injuries he or she suffered along with the defendant.
What are common cases for contributory negligence? Common cases for contributory negligence are car accidents. If the plaintiff is to be considered 25% to blame, then he or she will only be able to recover 75% of any damages awarded by the court action.
Who is a Tortfeasor? A tortfeasor is a party who committed a tort (a defendant found liable for a tort).
What is a Joint Tortfeasors? Joint Tortfeasors are two or more parties who together committed a tort.
What are two types of joint tortfeasors? 1) true tortfeasors: two or more parties who clearly acted together in the actions that resulted in the injury of the plaintiff. 2) concurrent tortfeasors: are parties whose independent acts both resulted in the injury to plaintiff. They did not discuss anything or in any way act together, but jointly their actions resulted in the injury.
What are three types or tort damages that may occur in a tort case? 1) General Damages: term used to describe an amount of money awarded to the plaintiff for the pain and suffering that resulted from the actions of the defendant. 2) Punitive or exemplary damages: are used to deter the defendant and others from doing the same action again. 3) Economic Loss: are amounts awarded to directly replace income or revenue loss as well as out of pocket expenses that resulted from the defendant's actions.
What can a professional organization do to avoid unintentional torts against themselves? They can work on Risk Management, which include strategies such as: - Keep skills and knowledge current - follow professional standards of practice - Stay within area of expertise - use exclusion clause in contracts - use risk allocation strategies in contracts - professional liability insurance.
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