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COMM381 - Midterm notes.docx

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Queen's University
COMM 381
Philip Osanic

TORT LAW What is a TORT? o Coming from the French word “tort”, meaning “wrong”, a tort is a civil wrong done to a person’s body, property or reputation, whether the wrong was done (or omitted to be done) intentionally or otherwise. Types of Torts  Negligence – careless actions causing harm  Intentional Torts – intentional actions causing harm  Nuisance – a hybrid  Fiduciary Duty – utmost good faith, a concern of professionals Torts: A Quick History  Arises from medieval English criminal law, as a separate system for compensation for victims of crimes when the King’s court granted a “writ”.  Onlythntentional torts were recognized initially – “trespass”.  In 20 Century – the rise of negligence as the most important form of tort action: Donoghue v. Stevenson. Purposes of Torts  Primarily: compensation  Secondarily: specific and general deterrence – a form of social regulation.  Maybe: punishment; allocation of loss among societal actors Liability  In a tort action, the plaintiff wants to prove that the defendant is liable for the plaintiff’s harm - she wants to show that the defendant is civilly responsible for an action causing harm on a balance of probabilities. This is distinct from criminal guilt which is proven beyond a reasonable doubt.  In a torts case, one looks for fault or liability, NOT GUILT!  Legal responsibility – whether civil or criminal – can arise regardless of the amount of intention or involvement by the defendant. Levels of Intention Subjective Intention  Express intention to do a certain act, or recklessness, or implied intention.  This is the level of intention sought in criminal cases, and for intentional torts.  In general, the law is concerned with the intent to perform an act, not its consequences.  What is recklessness? o One is reckless when one commits an act, not necessarily wanting to cause specific harm, but knowing that some harm will result nonetheless. Negligence  An act or omission which causes harm, which the actor ought to have known would result in some harm, even if the harm is not intended.  The harm caused must be reasonabl
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