BUSN 1320

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Author:
xx.chelsii
ID:
279027
Filename:
BUSN 1320
Updated:
2014-07-16 01:36:51
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Midterm
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Description:
chapter 5 and 6
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  1. Intimidation
    Plaintiff suffers a loss as a result of the defendants threat

    • (1) Defendant threatened to break duty in tort, contract, or commit crime
    • (2) Threatened to party that they must submit
    • (3) Party must have suffered a loss

    2 forms: 2-party & 3-party
  2. Conspiracy
    • two or more defendants agree to act together to cause plaintiff a financial loss
    • Not a tort if one party hurts another economically 
    • IS a tort if 2 or more parties hurt another economically
    • *hard to prove-
    • If defendant actions were lawful: Have to prove primary purpose was to hurt the plaintiff
    • If actions unlawful: Courts have to prove should have known that their actions would have hurt the plaintiff
  3. Interference with Contractual Relations
    Defendant disrupts a contract that exists b/w plaintiff and third-party

    "Competitor lures away an employee or customer"

    2 forms:

    • 1. Direct inducement
    • 2. Indirect
  4. Direct inducement to breach
    directly cause breach with plaintiff

    • (1) must know about contract between plaintiff and 3rd party
    • (2) intend to cause the party to breach contract
    • (3) must actually cause the breach
    • (4) plaintiff must suffer a loss
  5. Indirect inducement to breach
    Indirectly cause breach to plaintiff

    • Plaintiff must prove:
    • The same criteria as with direct inducement
    • & the defendants actions were unlawful
  6. Deciet
    Party suffers damages upon a false representation made by a party with intention of deceiving the other

    • (1) defendant made a false statement
    • (2) Must know statement is false
    • (3) intend to mislead the plaintiff
    • (4) plaintiff reasonably relied on statement
    • (5) Plaintiff suffered a loss
  7. Unlawful interference with economic relations
    Def. commits an unlawful act for the purpose of causing the plaintiff to suffer an economic loss

    • (1) intention to injure plaintiff
    • (2)unlawful or illegal act
    • (3)economic loss suffered
  8. Occupier's Liability
    Requires an occupier of premise to protect visitors from harm

    • Occupier: anyone who has substantial control over premise
    • Premise: include more than just land (cars)

    • 3 forms of Occupier's liability
    • Traditional common law rules
    • Modified common law rules
    • Statutory rules
  9. Traditional common law rules
    • 4 Categories of visitors; liability depends on category
    • (1) trespasser
    • (2)licensee
    • (3)invitee
    • (4)contractual entrant
  10. trespasser & occupier's duty
    one who does not have permission to enter

    duty: not recklessly injure the trespasser
  11. Licensee & occupier's duty
    person who has permission to enter but does not further the occupiers interest

    duty: protect the licensee from hidden dangers that known to occupier
  12. invitee & occupier's duty
    person who has permission to enter the land who further economic interests

    duty: take reasonable care to protect an invitee from potential dangers that occupier knew or should have known about
  13. contractual entrant & occupier's duty
    enters into contract to use the premise, rather than to receive services that are offered

    duty: contractual obligation to make sure premises are as safe as possible
  14. Common law rules modified
    Jurisdictions still using common law have eliminated the broad categories; focus on occupiers obligations

    • licensee and invitee treated the same
    • duty of common humanity to all trespassers
  15. Major statutory changes
    • Duty of occupier applies to premise AND activities
    • Duty of reasonable care for ALL visitors
    • Duty can be modified by warning sign
    • Other statutes may affect liability (i.e. landlord not responsible for tenant's guests)
  16. Nuisance
    defendant unreasonably interfers with the plaintiff's use and enjoyment of own land (Siracha hot sauce)

    • (1) interference with use and enjoyment of land
    • (2) Unreasonable?
    • -Only a nuisance if there is unreasonable interference in plaintiff's use of land
    • -depends on a variety of factors
    • -not everything in which is a nuisance will be a nuisance
  17. Defenses to nuisance
    • 1. consent to activity
    • 2. statutory authority: means that the defendant caused a nuisance while acting under legislation
    • 3. No defence to move into a nuisance
  18. Rules in Ryland v. Fletcher
    defendant can be held strictly liable for their non-natural use of land if something escapes from their property and injuries the plaintiff 

    Elements

    • 1. defendant must make non-natural use of land (creation of special danger OR creation of special or unusual danger)
    • 2. Escape from defendants land
    • 3. Loss or injury to the plaintiff
  19. Defences to Rylands v Fletcher
    • (1) Plaintiff consented to defendants non-natural use of the land
    • (2) Escape may be  result of a natural force or 3rd party
    • (3) statutory authority - if loss was inevitable result of an act that defendant was statutory  authorized to do then no liability
  20. Defamation
    statement leads a reasonable person to have a lower opinion of the plaintff

    • Must prove:
    • 1. false statement
    • 2. Reasonable person would believe the statement is true
    • slander: statement that is spoken
    • libel: statement that is written
    • 3. statement could hurt the plaintiff's reputation
    • 4. statement must be published
    • -concerned with repu. not feelings
    • -committed every time statement is repeated
  21. Defenses to defamation
    • 1. justification/truth
    • 2. absolute privilege
    • 3. qualified privilege
    • 4. public interest responsible journalism
    • 5. fair comment
  22. Justification/Truth (DTDefamation)
    No liability f statement is true
  23. Absolute privilege  (DTDefamation)
    Operates as COMPLETE immunity

    • Limited to statement made:
    • during parliamentary proceedings
    • between high government officials
    • by a judge, lawyer, or witness in legal proceedings
  24. Qualified privilege (DTDefamation)
    • Applies where:
    • 1. defendant has legal, moral, or social obligations to make statement
    • 2. statement is made to someone who has a similar duty or interest in receiving it
  25. Public interest responsible journalism  (DTDefamation)
    Occurs when a journalist despite getting some facts wrong, acted in accordance with standards of responsible journalism in publishing a story...
  26. Fair comment defene
    Fair comment is an expression of an opinion regarding a matter f public importance

    • TEST:
    • MUST be an informed opinion
    • Opinion must concern the public interest
    • Defence applies as long as the opinion in question could honestly be held by some person
  27. Injurious Falsehood
    False statements about a firm, it products, or business intended to dissuade others from doing business with the firm

    • 3 forms of injurious falsehood:
    • slander of a title untrue statement of the right of another to the ownership of goods
    • Slander of goods statement alleging that the goods of a competitor are defective, shoddy, or injurious to customer
    • other...

  28. Test of injurious falsehood
    • 1. Defendant made false statement about company/property
    • 2. defendant acted out of malice (meant to hurt plaintiff, knew false and would hurt, intended to)
    • 3. False statement caused a loss
  29. Negligence
    • Most common tort
    • Negligence: determines whether the def. can be held liable for carelessly causing injury to the plaintiff
  30. Elements of negligence (4)
    • PLaintiff required to prove the defndant:
    • 1. Owed a duty of care
    • 2. Breached a standard of care
    • 3. caused harm to the plaintiff (causation)
    • Defendant than may prove any available defences
    • 1. Plaintiff's contributory negligence
    • 2. Voluntary assumption of risk
    • 3. Illegality
  31. Duty of care
    • Defendant required to use reasonable care to avoid injuring the plaintiff
    • If there is a duty of care, liability is possible
    • If no duty of care than no liability

    • Test:
    • Whether or not similar duty imposed before?

    • If not, then look to
    • Proximity
    • Reasonable foreseeability
    • Policy
  32. Duty-Proximity
    • did parties share relationship of sufficient proximity?
    • proximity: close and direct connection between the parties
    • Occurs in different way:
    • 1. physical
    • 2. social
    • 3. commercial
    • 4. direct causal connection (loss occurred without other factors)
    • 5. reliance: Did plaintiff rely on defendant's representation that they would act a certain way
  33. Duty-Reasonable Foreseeability
    Was it reasonable that the plaintiff could be injured by the defendants carelessness?

    • OBJECTIVE test
    • Would reasonable person ave foreseen risk of loss?
  34. Duty-Policy
    Policy-General overriding considerations

    Policy: Focuses on legal, social, political concerns

    Effect of policy: even if there is reasonable forseeability and close proximity... a duty of care can be rejected for external policy reasons

    No general duty on individuals to rescue another
  35. Breach of standard of care
    • Tells the defendant how they should act
    • Liability for negligence only where the standard of care has been breached
    • it is breached when defendant acts less carelessly
    • Plaintiff entitled to expect reasonable conduct
    • applied at time of breach
  36. Sudden peril doctrine
    • Even a reasonable person may make mistakes in an emergency situation
    • Less care required in an emergency
  37. Causation of harm
    • Can only be liability if the defendant's carelessness caused the plaintiff's loss
    • General test is the BUT-FOR
    • -Requires the plaintiff to prove that they would not have suffered a loss but for the defendants carelessness...
    • Key question would the loss have occurered but-for the breach of standard of care?
    • If yes, no liability
    • If no, then maybe liability
  38. Causation-residual points
    • Must be proven on balance of probabilities
    • all-or-nothing concept (causation)
    • Plaintiff only required to prove that the defendants carelessness was the only cause
  39. Carelessness-Remoteness (2 step inquiry)
    • Even if there is factual causation, liability not imposed if loss is remote
    • causation is essentially a 2-step inquiry:
    • is there factual causation?
    • -But-for test satisfied/
    • -Primarily a question of fact
    • Is there legal causation
    • -is the loss remote?
    • -primarily a question of fairness
  40. Causation-remoteness
    loss is remote if it is unfair to hold the defendant responsible for it

    • Is the type of harm reasonably foreseeable?
    • Scope of principle-Focus on type of harm
  41. Causation-Remoteness: Thin Skull Principle
    • Remoteness affected by thin skull principle
    • Thin skull: Occurs when the plaintiff was unusually vulnerable to injury
  42. Causation-Remoteness: Intervening Act
    • An event that occurs after the defendants carelessness and that causes the plaintiff to suffer an additional injury
    • General Rule: defendant liable for losses arising from foreseeable chain of events
  43. Professional Negligence
    Negligence test remains the same: Duty, Breach, Causation

    • MAJOR changes to the standard of care element:
    • When is there a breach to the standard of care by a professional?
    • -Professionals must live up to their training
    • More expected of specialists or experts
    • Standard is determined at time of negligence
    • "Reasonable professional"- need not always be perfect
    • Compliance with statutory standard may protect the defendant
  44. Manufacturers liability (3 types)
    • Types:
    • Manufacture
    • Design
    • Failure to warn
  45. Manufacturers liability-Manufacture
    Manufacture: Careless manufacture of specific item

    applies to defects, usually an isolated incident
  46. Manufacturers liability-Design
    • usually a widespread problem
    • Monstrous burden on designer (headlights)
    • Law in Canada need not require safest available design as long as design was reasonable in the circumstances
  47. Negligence defences
    • Contributory negligence(MOST IMPORTANT)
    • Voluntary assumption of risk
    • Illegality
  48. Negligence defences-Contributory negligence
    Loss is caused partly by the defendant's carelessness and partly by the plaintiff's own carelessness

    • Effect of contributory negligence: 
    • Old rule if you were contributory negligent at all, you were barred from recovering damages
    • Modern rule court will apportion the responsibility for the damages
    • forms of contributory negligence
    • 1. Plaintiff unreasonably entered into a dangerous situation
    • 2. Plaintiff unreasonably to the creation of the accident (encouraging drunk driver to drive)
    • 3. Plaintiff unreasonably contributes to the extent of injury (not wearing a seatbelt)
  49. Negligence defense-Voluntary assumption of risk
    Defence applies if plaintiff freely agreed to accept risk of injury

    • Elements:
    • Voluntary assumption of physical risk
    • Voluntary assumption of legal risk

    • EFFECT:
    • complete defense
    • rare that defense works
    • where exclusion clauses apply
  50. Negligence defence-illigality
    May apply if the plaintiff suffered a loss while participating in an illegal act

    • ELEMENT: applies only when the plaintiffs claim undermine integrity of the legal system which is said to occur
    • Plaintiff tries to profit from wrong-doing, escape criminal penalty
    • EFFECT:
    • Complete defense (not proportionate)
    • Limited in practice because of harsh result

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