Textbook Chapter 12.docx

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Department
Management and Organizational Studies
Course Code
Management and Organizational Studies 2275A/B
Professor
Philip King

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Chapter 12 – Other Torts Introduction  Examples of activities and businesses that could be subject to a tort action  A customer in a grocery store slips on a lettuce and falls, breaking his ankle  A store detective detains a shopper, assuming incorrectly, that the shopper has stolen merchandise  A salesperson intentionally overstates an important quality of a product because she wants to close a sale  A golf course adversely affects an adjacent landowner because players continually drive balls into her yard  Examples of businesses are liable for its tortuous conduct  A newspaper专栏作家 columnist mali诽谤s the environmental record of a business  Vandals街头艺术 continually spray-paint涂鸦raon factory walls  A competitor ent诱使esa skilled employee to break his employment contract and join the competitor’s business  A new business creates a logo that is remarkably similar to that of an existing business in the same market Torts and Property Use  Tort actions may arise in relation to property in a number of ways  Most common: the occupier* of the property harms others *occupier: someone who has some degree of control over land or buildings on that land Ex> owner, a tenant, or a temporary provider of a service, possible to have more than one occupier of land or a building  The main tort actions:  Occupiers’liability  Nuisanc损害  Trespas非法侵入  Occupiers’Liability  Differences among different provinces  Newfoundland, Quebec, Saskatchewan – retain the common law  Other provinces have occupiers’liability legislation  New Brunswick, statute has abo废除shoccupiers’ liability as a specialized category altogether  Liability at Common Law  Contractual entrant: someone who has contracted and paid for the right to enter thepremises 经营场址 - Ex> visitors to a pottery exhibit with tickets - Duty: “ the premises are as safe as reasonable care and skill on the part of anyone can make them” - Highest standard of care is owed among the four visitors  Invitee: any person who comes onto the property to provide the occupier with a benefit - Ex> store customers, delivery, service personnel, etc - The occupier must warn the invitee of any “unusual danger, which he knows or ought to know” - No requirement to warn of usual or common danger that “ordinary reasonable persons can be expected to know and appreciate.”  Licensee: someone whose presence is not a benefit to the occupier but to which the occupier has no objecti反对 - Ex>adjacent business to take a shortcut through occupiers’ building, guests invited to someone’s property for a social occasion - General rule: the occupiers are responsible for any unusual danger of which they are aware or that they have reason to know about  Trespasser: someone who is not invited onto the property and whose presence is either unknown to the occupier or is objected to by the occupier - Ex> burglar - The occupier will be liable for any act done with deliberate intention of doing harm to the trespassers, or an act done with reckless 鲁莽的 disregard 忽视;不尊重 for the presence of the trespasser - Occupier does owe trespasser “at least the duty of acting with common humanity towards him.” - Trespasser is owed a very low duty, courts have often mitigated the harshness of the result, especially for children  Liability under Occupiers’Liability Legislation  Objective: simple the common law  Ontario’s Occupiers’’Liability Act - Replace common law by a generalized duty of care on the “neighbor” principle set  Provides a high duty of care (= negligence standard) to contractual entrants, invitees, and licensees  Ensures that occupier must not create deliberate harm or danger to trespassers *Alberta – the responsibilities increase where the trespassers are children  BusinessApplication of the Law: Slip and Fall Business face liability for the tort of negligence as well as under occupiers’ liability legislation. A customer fell when she was shopping. The store had neglected to clean up properly and had failed to take reasonable care for the safety of the plaintiff. “Slip and Fall” can top $50 000 in the most serious case  Case: St Prix-Alexander v Home Depot of Canada Inc, [2008] Factual Background: Alexander was shopping at a Home Depot store. An employee accidently hit her in the back of the head with a heavy box, and Alexander was seriously injured. Resolution: Tort of Negligence – the Home Depot employee was negligent because he did not bring the box safely to the ground and failed to keep a proper lookout for customers in the area Ontario’s Occupiers’ Liability Act – the occupier must take reasonable care for the safety of people on the premises. The employee failed in this duty. Home Depot is also liable for the plaintiff’s injuries due to vicarious liability based on the employment relationships.  Ethical Consideration: The Risk of Spectator Injury at a Game When spectators are injured by pucks at sporting events, they might sue for breach of contract, in negligence, or pursuant to occupiers’ liability (common law or occupiers’liability legislation) Argument: hockey club failed to provide the spectator with a reasonably safe environment, in breach of contract, tort, or occupiers’liability Defence: Occupiers’ liability: Occupiers’ Liability Act does not apply since it against the plaintiff volenti non fit injuria (the defendant is required to show that eh plaintiff assumed both the physical and legal risks involved) Breach of Contract: the ticket doubtless contains an exemption clause. If it does not contain this clause, the club could point out that there was no promise of absolute safety, (seat provided was reasonably safe) Contributory negligent: the plaintiff failed to properly watch for pucks Club’s legal defence might well fail  The Tort of Nuisance损害  Definition: any activity on an occupier’s property that unreasonably and substantially interferes with the neighbour’s rights to enjoyment of the neighbour’s own property  Can be intentional or unintentional actions  Examples:  Noise from a steel fabricator’s 800-ton press seriously interrupts the neighbours’ sleep  Ashes and unpleasant odou气味 escaping form a rendering compa(a business that acquires the leftover materials after meat is removed from a areughtered animal ) carried onto neighboring properties because of dated technology  General test: whether the impugned activity has resulted in “an unreasonable and substantial interference with the use and enjoyment of land”  Guidelines:  Intrusion must be significant and unreasonable  Nuisance typically does not arise where the intrusion is only temporary. Ex> construction & demolit拆迁n  Not all interests are protected by the tort of nuisance Ex> the right to sunlight  Courts will consider tradeoffs in interest. When the noise in question is reasonable and for the public good, the action in nuisance will fail.  Trespass  Define: wrongful interference with someone’s possession of land  Arises in several ways  A person comes onto the property without the occupier’s express or implied permission  A person comes onto the property with the occupier’s express or implied consent but is subsequently asked to leave. Any person who refuses to leave becomes a trespasser  A person leaves an object on the property without the occupier’s express or implied permission  Reasons for having the law  Resolve boundary/title disputes  Protecting property rights  Protects privacy rights  The rights to “peaceful use of land”  Trespass is actio可控告的e without proof of harm of damage  Compensations:  Monetary losses are recoverable  Injuncti禁令  Fines against the trespasser  Environmental Perspective: TortActions Relating to the Environment  Four main torts that may provide remedies for environmental damage 1) The tort of negligence (the plaintiff must establish all the steps of a tort action) 2) The tort of trespass (the plaintiff must show direct intrusion of pollutants generated by the defendant and which came on to the plaintiffs land without permission or authorization) 3) Actions based on Rylands v Fletche (the plaintiff must show that sth from the defendant’s land escaped onto the plaintiff’s land due to the defendant’s dangerous and non-natural use of his land) 4) The tort of nuisance (requires proof that the defendant’s pollutants amounted to an unreasonable and substantial interference with the plaintiff’s rights to enjoyment of his or her own property)  Seek injunctions and damages for associated losses Torts from Business Operations  Torts Involving Customer  Assault and Battery  Assault: the threat of imminent physical harm by disturbing someone’s sense of security  Battery: the actual physical contact or violation
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