Lecture 4+5 (Keller)

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Department
Management and Organizational Studies
Course
Management and Organizational Studies 2275A/B
Professor
Cristin Keller
Semester
Fall

Description
Lecture 4 + 5 The Nature of Torts (OJ simpson case had a criminal and tort case – criminal for murder and tort for wrongful death) • A social wrong (not necessarily a crime) that causes injury to another • When an intentional or careless act harms another • Injured party usually sues for monetary compensation (for money that puts them back in position before they were harmed) • Crimes are social wrongs that affect society as a whole • Some crimes are also torts • Tort law changes behaviour - simply through the threat of liability Notes: - Tort is a civil wrong involved between two individuals - Government is not involved - Tort is a civil case - “Accused” = criminal case, “plaintiff and defendant” = civil case - Plaintiff has to prove the case by stating what is wrong - Based on balance of probabilities *** Categories of Tort **** VERY IMPORTANT • Intentional – Deliberate acts that cause injury or loss – Every tort has to be proven by plaintiff based on the element of the tort • Tort of battery, tort of wrongful death have to all be covered individually • Unintentional (negligence) – Careless or negligent acts that cause injury or loss – All torts get proven by plaintiff exactly the same way (no difference between negligent acts) Judicial Remedies (what will judge give to successful plaintiff) • Courts will compensate for: – Physical, economic, emotional and mental injuries that result from tortious action • Mental disorder, but not simply mental or emotional distress • Court attempts to restore victim to original position (in $$$$$) • Special damages – specific damages you could show a receipt for • General damages – future estimates • Punitive (Exemplary) damages – damages intended to punish – All damages dealt by judge are taken from defendant and given to plintiff Vicarious Liability • Liability without personal fault (held responsible even though you didn’t commit the act) • Imposed on employers when they are held liable for torts committed by employees during the course of their employment • Or by statute, such as a vehicle owner being liable for the use of it by another person Notes: - Can occur for unintentional and intentional torts Intentional Torts (usually about something you did vs. something you didn’t do *negligence+) • Examples – Trespass to Person (Assault and Battery) – Trespass to Land – False Imprisonment – Nuisance – Defamation • All of these are Deliberate torts – that person knew what they were doing when they committed the act 1. Trespass to Person: Assault and Battery (have to know elements) • Assault - where there is fear of contact • Battery - the least touching of another without consent (action of contact) – Defendant will try to bring down case fee by disproving the elements of tort (it was an accident) • Defences – Consent (informed) (doctor example – they agreed to do it) – Self-defence (reasonable force) • Can only use the same level of force that is being dealt to you Notes: - Although a criminal case it can be filed as a tort so the plaintiff gets $$$$ 2. Trespass to Land (know elements) 1. Being on another’s land without authority a. Permission implied for business offering public services b. Invitee – allowed to be on land because you invited me c. Has authority to be there (policeman, firefighter, etc…) - Occupier has the duty to take care of trespassers as well as those there with authority • Continuing trespass remedied by injunction (school kids walking across property) – Injunction is filed (equitable remedy) Notes: - Actionable-per-say: don’t have to incur any damages to you to be able to file a tort 3. Trespass to Chattels (tangible things) – you took my stuff without the authority (know elements) • Chattels – Tangible Personal Property (Goods) • (Land – Real Property) • Actions: – Conversion (just taking the item) – Detinue (taking the item and trying to sell it) • Criminal and tort case 4. False Imprisonment (know elements) • The unlawful and intentional restraint of persons against their will • Restraint must be total in mind of plaintiff – Can’t leave class example (ability to move around/freedom is restrained) – Plaintiff thinks they can not leave (IF THEY DO THEN ITS NOT FALSE IMPRISONMENT) • Victim may submit, or be forced to comply • Defence – Citizens arrest: restraint may be justified if persons have done something for which they may be arrested Section 494, CCC Arrest without warrant by any person (HAVE TO BE RIGHT cause if not then its false imprisonment) 494(1) Any one may arrest without warrant: (a) a person whom he finds committing an indictable offence; or (b) a person who, on reasonable grounds, he believes; (i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person Arrest by owner, etc., of property 494(2) Any one who is: (a) the owner or a person in lawful possession of property, or (b) a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property. Delivery to peace officer 494(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer. Malicious Prosecution (in the past you sued me and you lost and now I will sue you for financial/emotional…etc losses) • Prosecution abandoned or “not guilty” (case in the past that was unsuccessful) • Prosecution motivated by malice • has to be almost no evidence for original prosecution (original suing shouldn’t have happened) Private Nuisance • Public nuisance affects public in general (Government plaintiff) (anomaly – doesn’t usually happen) • Private nuisance interferes with others’ use of their property • Strict Liability for inherently dangerous situations or products • Liability where we don’t care how much you tried not to do something, just care that it happened • Chemical leaking example (don’t care that they tried to stop it, just that it happened) Defamation (know elements) 1. A detrimental false statement about someone that is of a factual nature (has to be false) • Can’t be an opinion, 2. Must be published or broadcast (at least one other person heard it) 3. Caused plaintiff some type of loss • Slander - spoken defamation • Libel - written defamation • Defences to a defamation action: (have to disprove elements) – Truth (not false statement) – Absolute Privilege (can say whatever they want – can say anything in parliament) – Qualified Privilege (doesn’t have absolute priviledge but can get away with it – supervisor with employee review) – Fair Comment (I gave an opinion not a fact) – Public interest (tabloid magazines excuse) Product Defamation – someone gave a false statement about our product and now we’re suffering • Reputation and value of property – Quality – Title • ************************HAVE TO MEMORIZE****************************** Other Torts Impacting Business (all in same category) • Inducing breach of contract – Commonly, luring people from one company to breach their current employment or supply contracts to the other company • Interference with economic relations (interference with relationship) • Intimidation • Intentional infliction of mental suffering – Harassment • Deceit (Fraudulent Misrepresentation) • Blue = don’t need to know • Conspiracy – … To injure business interests • Passing off (suing a company for creating a product that looks like yours) – Knockoffs • Misuse of Confidential Information – Breach of confidence Privacy • Privacy protection provided by statute law – Provincial privacy statutes • Tort of “Intrusion upon Seclusion” (privacy) – Ontario Online Torts • Myths: – Internet is uncontrolled – Victims have few remedies available – ISPs have no direct liability • Defamation is actionable when published/broadcast on the internet (can use a tort against someone online) – Hard to see who is liable Government and Private Information • Privacy Act (Canada) • Personal Information Protection and Electronic Documents Act – Regulates collection and use of private information – Provides a model code (when people can use confidential info and when it can be accessed) Evolution of Tort Law • Constant evolution of the law • Tort of Spoliation – Deliberately spoiled or destroyed evidence Chapter 5 Case Example (MUST KNOW): - Donahue and Stevenson case: o English case o They go to a pub and friend orders a gingerbeer (this is a contract as someone has payed money for something) and gives other friend the beer (gift) o Gingerbeer is in opaque bottle and finds a dead snail at the bottom o No contract in this case as the friend got the beer as a gift (did not give anything to other friend for the beer) o Girl sues the pub as they weren’t careful o Goes to highest court in England o For the first time ever, the court recognizes that we all owe each other “the duty of care” (obligation to be careful to others)  All owe each other the care that we must do things not to harm others o First case of negligence as before a contract was required for damages (first time someone without a contract can hold someone else accountable) Negligence • Inadvertent, careless conduct that causes injury to another Negligence: It’s A,B,C, and D • 4 Essential Elements: (HAVE TO PROVE ALL) – A: A duty to exercise care (plaintiff has to convince court on a balance of probabilities that defendant owes me a duty to be careful) – B: Breach of the standard of care (what actions did you have to take to show you were being careful) – proving that defendant fell bel
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