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BU231 Complete Notes 48 pages.docx

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Laura Allan

BU 231 Class Notes Terms Action the lawsuitCause of Action type of lawsuit tortPlaintiff defendantparties to the actionClaim the reason for the lawsuitDamages Prima Facie on the face of itTort LawThe object of tort law is to place the injured party back in the position heshe wouldve been had the tortuous act not occurred o Harm is a required element of any tort The wrongful act must cause the harm o Our tort system today is fault based some torts dont require an element of fault o When choosing a writ you need to make sure you find the one that best suits your case because youmay win a case under one writ but not another that may even be closely relatedStrict liability some torts are still considered to be strict liability and therefore no fault element is required public nuisanceIntentional TortsNuisanceo Public or Privateo Interference with the lawful use of public land or private land o Need to prove IntentTrespass o Entering someone elses land without consent o Harm must be caused o Need to prove intentAssault and Battery o Assault Threat of violence to a person o Battery Unlawful touching of a person without consent o You can have one without the other but they are usually togetherIntentional infliction of Mental Distress o Intent to cause harm o Recognizable physical or psychopathological harm must occur person cant just claim they are distressedo Shows harm does not need to be physical False Imprisonmento Unlawfully restraining or confining another person o Does not need to be physical manager shouts stop thief to innocent personMalicious Prosecution 1BU 231 Class Notes o Reporting person to the police when there is no good reason to believe that person committed a crime o This is the next step to false imprisonment Defamationo Making an untrue statement that causes injury to the reputation of anothero Slander spoken libel written o The elements are intent maliciousness statement made statement false rdpublished to 3 party must cause genuine and significant injury to the reputation of the plaintiff o Defenses Statement was true or qualified privilege statement made in good faith and with honest belief in its truthfulnessDefenses to Intentional TortsConsent o Injured party consented to the act that caused the harm there is no tort o Absolute defense but must be genuine and informed consent Selfdefense o The party asserting the defense needs to show that the self defense was necessary and that no excessive force was used pull a gun on someone who punches you o Force for force o Absolute defense Necessity o Defense to Trespass where the right of way was impassable o No other option but to destroy property tear down building to stop spread of fire Volition o Act must be voluntary o Ie Getting away with trespassing because someone else forced you onto the property Capacity o Requirement of mental capacity to inform intentif absent forms a complete defense Tort LawNegligenceNegligenceis the careless causing of harm to the person or property of another o Takes up the majority of tort law because most of the time people dont intentionally harm people 3 Part test for Negligence 2BU 231 Class Notes 1 The defendant owed the plaintiff a duty of care 2 The defendant breached that duty of care by falling below the standard of care and 3 The defendants actions caused the injury Duty of CareDOCo Take reasonable care to avoid injury to others must be foreseeableo Everyone has the duty to not injure their neighbour good neighbour principle o Your neighbour is Wherever you are you must be careful of those around you o Test for DOC 1 is there a close enough relationship that the act should have been foreseeable 2 are there any considerations which ought to negative or limit scope class of people it is owed damages to which a breach of it may give rise Standard of Care o The reasonable and competent ordinary person on the young street subway lowest level of care o The professional standard of care o The fiduciary o Children will be considered adults when engaging in adult activitiesdriving car Causation o but for testo Remotenesselement of forseeability need to be present at the time of the tort o Things directly related not a string of bad events Vicarious liabilityoEmployers can be held liable for the tortuous actions of their employees when the employee is acting in the course of hisher employment Employee still liable Burden of Proof o Plaintiff has the onus of demonstrating that the elements of a tort exist o The onus then shifts to the defendant to prove valid reason why they didnt and use a valid defense o Plaintiff can use Res Ipsa Loquiturthe thing speaks for itselfwhen there is no other obvious explanation for the harm caused barrel of flour exampledefendant would need to prove why it was not possible for them to do itDefenses Contributory negligenceo The plaintiff in some way acted negligently and contributed to their own harm o Only a partial defenseCan occur in 3 ways 3
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