225 final notes.docx

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University of Toronto St. George
Rotman Commerce
Marion Laurence

Lecture 6: PRODUCTS LIABILITY Liability of manufacturers for injury or loss arising from defects in its products Burden of Proof:  Consumers: prove that the product caused the harm  Manufactures: show that the defect was not something for which it should be held responsible for since they took all the precautions necessary to prevent the defect Duty of Care:  Extends to all who use products and are injured as a result Duty to Warn:  Make sure users are aware of risks associated with the product  May be enough to warn a “learned intermediary” ie, a physician that does boob jobs  CONSUMERS: must show she would not have used the product after the warning and that the failure to warn must have been the case of the injury CHECKLIST for NEGLIGENCE: Elements:  Duty of care owed  Standard of care breached  Injury caused Elements redefined: Product Liability  Defective products causing injury  Dangerous products triggering a duty to warn Defences to Negligence:  Contributory negligence: negligence of an injured party that contributes to her own loss or injury  Failure to migate damage: duty to act reasonably and quickly to minimize the extent of damage OCCUPIER’S LIABILITY: 1. Invitee (licensee): person permitted by occupier to enter premises for business purposes Duty owed: prevent injuries from hazards Ex. shop owner must put up signs for wet floors for shoppers 2. Trespasser: person entering premises without occupier’s consent/permission Duty owed: must not set out to harm the trespasser OTHER TORTS: Criminal offences: conversion and theft, deceit and fraud, trespass to land and break and enter, assault and battery and criminal assault. Public nuisance: interference with the lawful use of public amenities  Actions against wrongdoer brought only by gov’t agency on behalf of public as a whole  Individual who is able to show a special injury that is substantially greater than that suffered by other publics may bring an action for compensation against wrongdoer Private nuisance:  Right of occupier to enjoy land free from interference such as excessive noise, contaminated soil False Imprisonment:  Unlawfully constraining or confining a person  Ex. shop lifting: does not apply if info given to police and they arrest Malicious Prosecution:  Causing someone to be prosecuted for a crime without an honest belief that the person committed it Defamation: Libel(written) and slander (spoken)  Making an untrue statement that injures the reputation of a person  The absolute defence is that the statement is true, BUT defendant must prove the truth of statements  Court will not award damages unless the plaintiff can demonstrate that the allegations are serious, causing real and significant injury to her reputation  Immunity: letters of reference, speech in parliament  in good faith Economic Tort:  Product defamation: false or damaging statements about other people’s products  Passing off: representing your goods as someone else’s (ex. similar packaging) REMEDIES:  Restore the injured party in the same position would have been if tort hadn’t occurred LECTURE 7: LIABILITY OF PROFESSIONALS Question: is it incompetence or negligence? Potential Liability:  Contract Duties set out in contract  perform services with due of care Breach of contractual promises gives rise to liability  Fiduciary duty  Special relationship of trust, reliance  Duty of HIGHEST GOOD FAITH  Duty of care under tort law to persons who may foreseeably be injured by her negligence  No conflict of interest  No benefit to fiduciary at expense to client unless given informed consent  Tort  Usually sued for breach of contract but possible to sue in tort for negligence  ***third party may rely on advice of professional Liability for Inaccurate Statements:  Deceit  Knowingly make a falst statement  Conceal information  Intend to mislead  Fraudulent: SUE FOR TORT OF DECEIT  Negligent Misrepresentation  Statement that is incorrect and is made without due care for its accuracy  Being wrong is not negligence if proper steps taken to back up statements  Liability should be restricted to the use of the info for the same purpose as that for which prepared Standard of Care for Professionals:  Standard of the competent professional, not just any man on the street Causation: Did the client rely and act upon the advice of the professional? Would the client have acted in that way if he had not received that advice? OFFER AND ACCEPTANCE OFFER: tentative promise  Must be communicated in writing or by conduct  Person must be aware an offer has been made Standard Forms:  in general, purchaser is bound by terms  purchaser must have notice of terms and have clear opportunity to refuse Notice of Terms:  required notice: must take steps necessary to bring terms to attention of offeree  unusual/unexpected terms: brought directly to the attention of the offeree STAGES: 1. between offer and acceptance  LAPSE: not accepted within time specified or within reasonable time if not specified  Lapsed offer cannot be accepted. Acceptance is new offer  Revocation must reach offeree before acceptance  OPTIONS: keep the offer open, not contract with anyone else, for specified time 2. rejecting the offer  once rejected  void  CHANGING some terms in an offer is a COUNTEROFFER not accepting  If counteroffer rejects, original offer does not revive either 3. accepting the offer  communicated to offeror Mail: once acceptance letter dropped in mail box  revocation: effective when letter is RECEIVED by person, not mail box  if offeror states preference for anything other than post, acceptance valid when RECEIVED Fax: not effecive until received Email: deemed received when it is capable of being retrieved by recipient Ways in which an offer may come to an end:  offeree fails to accept within time limit or reasonable time  offeror revokes the offer before accepted  offeree rejects the offer or makes counter offer  offeree accepts before any of the 3 above occurs LECTURE 8: CONSIDERATION The amount paid, or the promises made, by each party for the actions of the other.  the price that makes the promisor’s promise binding Gratuitous Promises:  unilateral, without corresponding promise or payments  generally unenforceable  no
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