Unintentional Torts

Negligence

Negligence

Carelessly causing harm to an individual or property

4 Part Negligence Test

1. Duty of Care

2. Standard Care

3. Causation

4. Damages

Duty of Care

Definition:

Legal duty imposed on everyone to take care to avoid reasonably foreseeable injuries to others

Test:

1. Reasonably foreseeable

2. Consideration of limit

   1. Scope of duty

   2. Class of person to whom it’s owed

   3. Damages a breach may cause

Standard of Care

Definition:

A level of care that a reasonable ordinary person would exercises in the situation

Considerations:

1. Professionals - Held to higher standard of care

2. Fiduciary - Must hold client’s interests and wellbeing over own

3. Children - Standard of reasonable child of same age (unless engaged in adult activities)

Causation:

“But For” Test: Would the injury have occurred “but for” the conduct of the defendant? – If yes, then this is the cause of the loss/harm

What Happens When Causation Cannot Be Established?

Malfeasance: Providing a positive act but performing it negligently, IS actionable

Nonfeasance: Failure to perform a positive act, NOT actionable

Defences To Negligence

1. Contributory Negligence

2. Voluntary Assumption of Risk

Contributory Negligence

Definition:

Plaintiff contributed to their own injury and should be partially liable for their own injuries

Possible Occurence:

• Plaintiff contributed to incident causing injury

• Plaintiff exposed themselves to risk of injury

• Plaintiff failed to take reasonable steps to minimize injury

Partial Defence

Court will divide damages based on degree of fault or split 50-50

Voluntary Assumption of Risk

Plaintiff engages in inherently risky activities, knew the risks and voluntarily assumed it

Product Liability

Plaintiff must prove that the product, as designed, manufactured, or labelled, fell short of reasonable standards which caused the products to be dangerous/harmful

Types of Product Liability

1. Negligent Design

2. Negligent Manufacture

3. Failure to Warn

4. Ongoing Duty to warn

Occupier’s Liability

Duty of care given to persons who enter premise of the occupier

Fiduciary

Someone who stands in a special relationship of trust to another person

Fiduciary Duty

Must place beneficiary’s interests over the fiduciary’s own interest, avoiding conflict of interest

Corporate Opportunity Doctrine

Director/Office, as a fiduciary can’t take corporate opportunity for themselves

Misrepresentation

Any statement that is untrue (Written, Verbal or action)

Types of Misrepresentation

1. Negligent Misrepresentation

2. Fraudulent Misrepresentation

Negligent Misrepresentation

Definition:

If Statement made is carelessly untrue

Test:

1. Statement is made

2. Statement is false

3. Maker must owe duty of care

4. Statement falls below standard of care

5. Hearer must act reasonably on statement

6. Hearer must suffer a loss because of the statement

Fraudulent Misrepresentation

Definition:

If statement made is intentionally untrue

Test:

1. Statement is made

2. Statement is false

3. Defendant knows the statement is false

4. Hearer must act reasonably on statement

5. Hearer must suffer a loss because of the statement

Rules Applicable To All Torts

1. Vicarious Liability

2. Burden of Proof

3. Circumstantial Evidence

Vicarious Liability

Employers are generally liable for the tortious actions of their employees, when that employee is acting in the course of their employment

• Torts within scope of employment

• Torts that are reasonably foreseeable + require evasive measures

Burden of Proof

• Plaintiff has burden of showing tort occurred

• Burden shifts to defendant to show they didn’t commit tortious act

Circumstantial Evidence

Item of evidence that is anything other than eyewitness testimonial

Circumstantial Evidence Rule

A method for plaintiff to meet burden of proof to show the defendant was the cause of their injury

Pure Economic Loss

When no property is harmed but plaintiff sustains economic loss

Business Related Torts

1. Inducing Breach of Contract

2. Unlawful Interference with Economic Relations

3. Passing-Off

Inducing Breach of Contract

Definition:

When one party is accused of coercing another party to breach a contract they had with a third party, causing damages

Test:

1. Defendant has knowledge of the contract

2. Defendant indented to procure a breach of that contract

3. Defendant’s conduct caused the third-party to breach contract

4. Plaintiff suffered damages due to the breach

Unlawful Interference with Economic Relations

Definition:

Using threats/unlawful means to convince another party to stop doing business with someone else

Test:

1. Defendant intended to injure plaintiff’s economic interests

2. The interference was done by illegal or unlawful means

3. Plaintiff suffered economic harm or loss as a result

Passing-Off

Definition:

Presenting one’s own product as that of another

Test:

1. The existence of goodwill regarding the applicant’s name or product

2. Deception of the public due to a misrepresentation on part of the respondent

3. applicant has suffered or has the protentional to suffer damages due to the misrepresentation

Product Defemation

When one party intentionally makes untrue statements about another company’s products