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Tort Law.docx

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University of Waterloo
Legal Studies
LS 101
Frances Chapman

LS 101 TORT LAW Tuesday, October 23/25, 2012 Flexible, Different categories of tort Tort of Negligence  New tort, last 60 years began  Develops through the case law, some statue based on  Greatest number of torts today = car accidents  Sometimes called unintentional tort  Civil law = private law  Intentional tort o Within distinct categories of wrong  Restore victim to position prior to accident Definition of a tort  Latin term “tortus” – twisted or curved  Civil law wrongs o One person commits against another resulting in damages o Must have some sort of damage: body, property, dignity  Person who causes the harm must compensate the victim Basic principles of tort law  Plaintiff and defendant  Seek compensation  Balance of probabilities  Some governed by status o Property law separate of civil actions  One action can give rise to tort action, an equitable remedy, breach of contract and criminal charges  Purpose of lawyer to find cause of action o If your case is eligible to bring to court  Generally – intentional act, negligence, wrongful on surface, and some special torts  Who to sue? (person who has most money)  Remoteness: is it too far-fetched to go after a specific person? Be realistic  Criminal – threat to society/public o Crime against state o Punish criminal and incapacitate  Civil – compensate victims for negligence between 2 individuals o [plaintiff (tortfeasor) v. Defendant) o Financed by the person wronged (unlike criminal)  Overlaps between tort and criminal law ex. Breaking into someone’s property (trespassing)  Allow criminal case to proceed first since it helps one’s civil case  Standard of proof o Balance of probabilities (civil) o Beyond a reasonable doubt (criminal) LS 101 TORT LAW Tuesday, October 23/25, 2012 Categories of liability in tort  4 categories of tort: negligence, strict liability, intentional tort, other unique torts Negligence o Failure to take reasonable care to prevent future harm to another o The tortfeasor’s relationship with the victim o Something happens by mistake o Conduct fell below a standard of behavior that society considers acceptable o Donoghue v. Stevenson  Transformed negligence, changed tort law  A woman drank gingerbeer with a snail in it, sues manufacturer: but didn’t have relationship since her friend bought the drink (no direct relationship between plaintiff and defendant)  Concluded that manufacturer owed duty of care to plaintiff  Opened up manufacture’s liability for first time  Person you owe a duty of care to is your neighbor  Everybody is your neighbor  Not just specific relationships – but relationships you have around you  Concept continues today – “duty of care” to others  Plaintiff must prove that the defendant’s conduct gave rise to a duty of care, and that duty was owed to the plaintiff  The foreseeable plaintiff test/ o Expect highly of your neighbors o Opened up to large number of actions in civil court with negligence o Fail what a reasonable person would have done in the standards of community 7 elements must be present for a negligence suit to be successful 1. Duty of Care  Did the defendant owe a duty to the plaintiff?  Find relationship between two parties  People are responsible for their inadvertent conduct when they anticipate that their conduct may cause injury to others  To maintain a standard of vigilance in their conduct and to act in a careful manner  Is there is a duty of care, was it breached?  Fault = is it reasonable foreseeable that this would happen to plaintiff?  Reasonable person: someone who has knowledge of both parties 2. Standard of Care  Court must ask what a reasonable person in that situation would have done  Standard of a reasonable person  Defined as an imaginary person who is not perfect, but considerate and careful of others  Is a man who is not a genius, acts in general and approved practice, normal intelligence  Plaintiff must prove there was a breach of standard of case  Legislation, customs  Failure to act  Misfeasance: doing something badly, causes harm LS 101 TORT LAW Tuesday, October 23/25, 2012  Nonfeasance: failure to act  Statutory obligation to act  Position or role in an organization  Ex. Lifeguard must save one from drowning  Individual innocently or negligently created the situation  Volunteer is not liable for accidental damages for injuries for trying to help someone  Foreseeable risk  Likelihood that damage will occur and how severe the harm will be if it does occur 3. Breach of that care  Was there a breach? Yes or no 4. Injury and causation  Injury must be directly caused by the defendant  Metal distress: high level of anxiety, fear  Close casual connection  The “but for” test  Plaintiff must prove if defendant’s actions haven’t happened, injury wouldn’t have occurred  Reasonably foreseeable, not too remote, therefore liable 5. Remoteness  Defendant is not responsible for every outcome  Sometimes so unexpected  Limits the damages to that which are foreseeable, natural, or directly caused by the negligent act  Some connection in space, time, or probability  “think-skulled plaintiff “rule: take plaintiff as you find him 6. Contributory negligence  Prejudicial conduct = contribu
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