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LAW - post midterm notes.docx

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Management (MGS)
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FINAL EXAM NOTES Torts - Fault – conduct that intentionally or carelessly disregards interests of others  Requires person harmed to prove the fault of the person who caused the harm - Strict Liability – does not require fault  If A causes harm to B, A may be strictly liable, even if A was not trying to harm B or careless - No Fault Schemes –  Ontario automobile insurance: driving considered a sufficient social good that the inevitable harm it will cause should be compensated without fault – but compensation is limited  Worker’s compensations: industrial accidents are compensated without employer fault, even if employees are careless - Vicarious Liability – employers are vicariously liable for harm caused by employees in the course of employment - Negligence – A causes injury to B through a careless act 1. Duty of Care: A has duty of care to B if A could reasonably have foreseen that A’s conduct could cause harm and that B would suffer that harm 2. Standard of Care: 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 the plaintiff? (Duty may extend beyond the person directly injured – family members, spouse or spouse to be) 3. Causation: Plaintiff must be injured as a result of the breach of duty if care owed (Breach must cause injury) (If there are intervening causes that law apportions fault to both defendants if both have harmed the plaintiff) - Extent of damages – - If A is liable in negligence to B, B is liable for all direct damages (damages that flow from breach without intervening cause), even damages that could not be expected - Thin skull victim – suffers extensive injuries from a small accident (take you victims as they come) - Economic Loss – - Law compensates for economic loss if there is physical injury to persons or property - “Pure loss” (loss without injury to property or person) can be recovered – loss resulting from inability to use damaged property or need to repair property is recoverable, IF there is a sufficiently lose relationship between the property damage and the person suffering the economic loss as a result of that damage - Burden of Proof – - Plaintiff needs to prove causation  Sometimes plaintiff may not be able to demonstrate how the harm occurred so they must please “res ipsa loquitur” (the thing speaks for itself) based on the idea that the most likely cause of the plaintiff’s injury is the negligence of the defendant - Defendant must prove that they were not at fault, or owed no duty to the plaintiff, or the damage was too remote - Contributory Negligence and the Apportionment of Loss – - Courts will apportion the fault and reduce the amount of the loss in proportion to the plaintiff’s fault - If the plaintiff’s subsequent action aggravate the loss, the amount of recovery will be lower - Products Liability – Liability of manufacturers for injury or loss arising from defects in products - Defective individual item (product)or - Defective design 1. Duty of Care: Products liability extends duty of care by the manufacturer to all those use products are injured as a result Manufacturer must prove that the cause of defect is not something for which it should be liable (IE: product caused an injury that was no foreseeable (one that is not normally associated with the product) 2. Standard of Care: Manufacturer must prove that they took all reasonable precautions to prevent the defective product from reaching customer 3. Causation: The customers must prove that the product cause harm 4. Duty to Warn: *** - If there are dangers, the manufacturer must warn of them - Manufacturer must warn even after the fact - If the duty to warn is the ground of the suit, plaintiff must show the she would not have used the product after warning - Strict Liability on the Manufacturer – - If the manufacturer can, under the present state of technology, be aware of the defect, the manufacturer will be liable for damage from that defect - If the product can be produced at all in a manner that eliminates the defect, the manufacturer is liable for the defect - Occupier’s Liability - Duty of owner or occupier of land to visitors – - Owner or occupier must not be negligent concerning dangers on property (keep premise safe) - Duty applies to trespassers – the duty is generally not to harm the trespassers or be reckless in doing something that might harm the trespasser Other Torts - Private Nuisance – right of occupier to enjoy land free from interferences (fumes, noise, contaminant in soil or water) (only for land owners) Remedy: Can sue to get them to stop doing what they’re doing - False Imprisonment – unlawfully constraining or confining a person - Malicious prosecution – causing someone to prosecuted for a crime without an honest and reasonable belief that the person had committed it - Defamation – making an untrue statement that injures the reputation of a person - 2 Kinds  Libel (written) and Slander (spoken in public) - 2 Defences: statement is true (usually the case) or person has no reputation to defend - Immunity from defamation suits - Qualified Privilege – Statements made in good faith with an honest belief in accuracy (usually used by newspaper) - Letters of reference, reports of Parliamentary and legal proceedings, fair comment and criticism in matters of public interest - Remedies: sue for damages of loss of reputation (celebrities and media) - Intentional interference with contractual relations – Inducing a breach of contract  Luring away an employee or inducing breach of supply agreement - Product defamation – making false or damaging statements about the products of another - Passing off – representing your goods as the goods of another - Remedies in Tort – Normal remedy is damages for losses - Damages are calculated to put the injured party in the same position that party would have been in had the tort not occurred -  Special damages: damages to compensate for quantifiable losses (lost wages or specific expenses) -  General damages: damages at large, for losses or injury caused by the harm that cannot strictly be quantified - Other Remedies (but not often used) - Restitution of property - Injunction against activity - Mandatory injunction requiring defendant to do something, such as remove a fence Liability of Professionals Contract – professional –client relationship created by a contract  “Contractual Duty” - Duties set out in contract in return for a fee - Professionals under a contract impliedly promises to perform the services required in accordance with the standard of his/her profession - Failure to do so is a breach of contractual promises gives rise to liability (for any foreseeable loss that the client suffered as a result of the professional’s breach of the contract) - The professionals profit from giving advice so they should bear the risk - Fiduciary Duty – Place the interests of the client above his/her own and to avoid any conflicts of interests with those of the client  Duty of highest good faith Basis for Potential Liability – - Fiduciary duty can exercise power unilaterally (exercise will affect beneficiary’s interest) - Fiduciary duty can exercise discretion (beneficiary particularly vulnerable to fiduciary) - No conflict of interest where fiduciary has conflicting duties or interests of fiduciary conflict with duties to the client - No benefit to fiduciary at expense to client, unless client gives info
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