Management and Organizational Studies 2275A/B Chapter Notes - Chapter 5: Ginger Beer, Contributory Negligence, Intentional Tort

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Business Law Chapter 5
Differences in Tort
Proving an intentional tort
-there has to be an injury or loss, with the exception of trespass (actionable per se)
-deliberate/willful act took action, move their body in the certain way even if they never intended to
hurt somebody
- prove the elements of the tort
-After plaintiff proves elements of tort, the defendant will then have to put forth any defenses can be
disproving the elements of the tort
Negligence Tort
-inadvertent, careless conduct that causes injury to another
-important area of tort liability for professionals
-Essential Elements:
-A: A duty to exercise care- plaintiff proves that defendant owes him/her a duty to be careful
-B: Breach of the standard of care prove that defendant fell below the level of care
-C: Causation The act caused the injury
-D: Damages- Victim suffered a loss (not actionable per se)
-plaintiff has to prove all these
-then defendant will try to attack all of these
-if a plaintiff is not able to convince the judge for any one of these, there will not be a case
Donoghue v. Stevenson (manufacturer of the ginger beer)
-Donoghue’s friend has a contract – the friend paid for the food and drink
-gift is not a contract not paying
-friend gave her a ginger beer with a decomposed snail in it
-Since Donoghue got the drink from a friend as a gift, no contract is made Donoghue didn’t pay for it
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-she doesn’t win the case on the trial or appeal level
-she appeals it to the highest court in England (equivalent of supreme court)
-just because she, Donoghue, doesn’t have a contract with the manufacturer, it doesn’t bar her from
getting a remedy
-there is a legal obligation for us as a society to be good neighbors (present a duty of care) to others
-huge departure from the law at that point (1930s)- changed the law
-opened up huge area of negligence
-she didn’t have a contract, but that didn’t prevent her from getting remedies
-test to determine the existence of a duty
Is duty owed?
-Reasonable Forseeability Test If it would be apparent to a prudent person that the conduct was likely
to cause injury- duty is owed
-We owe a duty to anyone we can reasonably anticipate might be harmed by our conduct
Anns Case
-limits the application of the duty of care
-we can’t all be in charge of everyone else (somebody else’s brother’s keeper)
-now unique to Canada in the common law world
-financial advisor and client goes to lunch: financial advisor owes duty of care to client, but if a third
party listens to the advice, buys stocks afterwards, and then loses all of his or her money, the financial
advisor doesn’t owe a duty of care to the third party because it is not reasonably forseeable. The
financial advisor doesn’t know that the third party will listen to the advice and buy the stock.
-not reasonable forseeable: there is not enough of a relationship between the financial advisor and the
third party
-duty of care is not having a contract: it says that as neighbors, you shouldn’t do something to injure me
A: Duty to exercise care must exist
-Misfeasance
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-an act that causes harm to another (wrongdoing)
-court will provide remedy
-Nonfeasance
-a failure to prevent an injury
-courts reluctant to provide remedy
B: Breach of the standard of care
-What would a reasonable person have done in the circumstances?
-Actions that fall below socially acceptable standards create liability for damages
-Risk The greater the risk of injury, the higher the standard
Liability of Children
-Children liable for their torts standard is that of a reasonable child of that age
-Parents not generally responsible for their children’s torts
-except where there is obvious failure to control, instruct or supervise
-or a statute imposes a duty
C and D: Causation and Damages
-“But for” test – “but for” the conduct of the plaintiff, no injury would have resulted (Physical causation)
-Remoteness test whether the specific type of injury suffered was reasonably foreseeable (legal
causation)
-Thin skull rule. Take victims as they are found
Damages
-unlike intentional torts, which may be actionable without specific damage, negligence requires a loss to
person or property
-“no pain, no gain
Defences
-convince that a duty of care isn’t owned
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