2526034 torts negligence and product liability chapter 7 2ed
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Torts, Negligence and Product
Liability
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Torts
TORT: any wrongdoing for which an action for damagesmay be brought
Examples: Negligence,
product liability, !eceit "nterference with #ontractual Relations Passing Off
Nuisance "n$urious %alsehood !efamation &ssault and 'attery
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Negligence
Negligence is a careless act or omission that causes harm to anotherand for which the law entitles the in$ured party to compensation(
Examples:
failing to pro)ide ade*uate warnings about dangers in a product gi)ing negligent professional ad)ice such as in the case of an
accountant, doctor, engineer, architect or lawyer in$uries caused to a plaintiff by the careless dri)ing of the
defendant+s deli)ery dri)er
in the case of bar owners, ser)ing alcohol to intoxicated personswho later in$urethemsel)es or others due to their state ofdrunenness
failing to mae sure that an employee gets home safely after acompany officeparty where alcohol was ser)ed
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Pro)ing Negligence
Must prove three things in a negligenceaction
1. Duty of care
2. The Standard of Care
3. Causation
The Standard of Proof is a measure of
degree to hich these three things must!e proven
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!uty of #are
-. "t must ha)e been reasonably
foreseeable that the plaintiff could ha)e
been in$ured by the defendants conduct &
plaintiff is foreseeable if he was in the
/one of danger created by the defendant(
0. There must not be any compelling policy
reasons for refusing to impose a duty ofcare(
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1tandard of #are
"n order to be held liable for negligence the conduct of the defendantmust fall below a standard of care(
The standard of care that the defendant must exercise towards theplaintiff is that of a reasonable person in the same or similarcircumstances( The reasona!le person test is an ob$ecti)e test(
Professionals such as doctors, surgeons, dentists, accountants,engineers and lawyers are held to a higher standard of care nownas a speciali"ed standard of care. This is the standard of areasonable professional with that type of speciali/ed training(
Other factors to consider in determining whether the defendantbreached the standard of care include:
2iolation of a statute creates a arguable presumption of negligence #ustom in the community
The emergency doctrine( This holds the defendant to lower standardof care because an emergency re*uired him to act in the mannerthat he did in order to a)oid a greater harm from occurring(
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#ausation
The plaintiff must pro)e that the defendants carelessness caused theplaintiff to suffer some damage(
#anadian courts use the 3but for3 test in determining causation( This testre*uires the court to as the *uestion 3'ut for the defendants actions,would the plaintiffs harm ha)e occurred4
3Exceptions:-( The court may refuse to apply the 3but for3 test if it would lead to anunfair result and deny the plaintiff a remedy( %or example, if there werese)eral causes which could ha)e caused the plaintiffs damage, thenthe plaintiff only has to pro)e that the defendants carelessness was amaterial cause of the damage, not the only cause. This is similar to thesubstantial factor test used by courts in the 5nited 1tates(
0( Res "psa Lo*uitur( 6Latin for 3the thing speas for itself. This doctrinemaes an inference of liability because the thing that caused theaccident was in the exclusi)e control of the defendant( "n other words,it could not ha)e been be anyone but the defendant who caused theharm(
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1tandard of Proof
The plaintiff has to pro)e all of the elements of
the tort of negligence on what is called a
!alance of pro!a!ilities.
This means he has to pro)e that there was agreater than 789 chance that the defendant+s
carelessness caused the plaintiffs loss(
"f the e)idence of both sides is found to be
e*ually belie)able by the trier of fact 6i(e( the
$udge or $ury., then the plaintiff will lose(
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!efenses to Negligence
#emoteness
$ntervening %ct
Contri!utory &egligence
'oluntary %ssumption of #is( )'olenti*
+oint and Several ,ia!ility
'icarious ,ia!ility
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Remoteness
E)en if the plaintiff can pro)e the three elements
discussed abo)e, if the loss suffered by the
plaintiff was too remote to result from the
defendant+s careless conduct, then thedefendant will not beheld liable in negligence(
The courts loo at whether the type of harm that
the plaintiff suffered was a reasonably
foreseeable result of the defendant+s
carelessness( "f the loss was unforeseeable,
then defendant will not held liable(
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"nter)ening &ct
an e)ent which happens after the
defendants negligence that worsens the
plaintiff+s damages(
"n general liability is restricted to damages
caused directly by the negligence and not
indirectly through other acts not readily
foreseen(
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#ontributory Negligence
"f the plaintiff+s damage has been caused
partly by his own carelessness and partly
the defendant+s, then the plaintiffs damage
award will be reduced in proportion to the
plaintiffs own negligence(
The defendant must pro)e the plaintiff was
negligent using the negligence testsabo)e(
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2oluntary &ssumption of Ris
"f plaintiff new the ris and )oluntarilyassumed the ris by engaging intheacti)ity then defendant will ha)e no
liability("f a plaintiff signed an exclusion clause, the
defendant may be able to pro)e )olenti(
;owe)er, the party seeing to rely upon theclause must show that they brought it tothe attention of the customer(
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2icarious Liability
This doctrine holds an employer liable for
torts of their employees committed in the
course of employment(
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Product Liability
5nder the tort of negligence, this is the
liability of a manufacturer>ser)ice pro)ider for
negligently made or pro)ided goods or ser)ices
that cause harm 6in$ury, death, damage. toanother (
?anufacturers owe a duty to consumers of their
products to see to it that there are no defects in
manufacture which are liely to gi)e rise to in$ury
in the ordinary course of use(
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Typical Product Defects
component- manufacturing process- ordesign pro!lem that failed to meet productstandards
failure to do uality control on product priorto release
failure to test product adeuately failure to provide arnings or proper user
safety instructions failure to develop product ith minimal ris(
for usage
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Liability #ontract or Tort
Liability can be based either in contract or in tort(%or example, when you purchase a productwhere you ha)e a contract with the seller, youmay be entitled to sue for breach of contract for
defects in that product("f, howe)er, the contract contains an exclusion
clause limiting or exempting the seller fromliability, you may ha)e to sue under the tort of
negligence(1imilarly, if you are not the purchaser, but merely aconsumer ha)ing no contract with the seller, youwould ha)e to sue under negligence(
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%ailure to @arn
Perhaps the most difficult area for
manufacturers is the nature and extent of
the warnings they ha)e to gi)e(
The nature and scope of the manufacturer+s
duty to warn )aries with the le)el of
danger entailed by the ordinary use of the
product(
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1trict Liability
where liability is imposed without proof of
negligence i(e( if you produced it, sold it,
ser)iced it, you are liable
a noAfault based standard of liability
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1trict Liability )ersus Negligence
/.0. and many 0.S. states use strict lia!ilitystandards in product lia!ility cases- although/.0. allos state of art and development
ris( defences Canada uses negligence standard if
manufacturer folloed reasona!le standardof care in design- manufacturing- pac(aging-
la!eling- and mar(eting of product- then notlia!le even if product defective
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Other 'usiness Torts
!eceit
"nterference with #ontractual Relations
Passing Off Nuisance
"n$urious %alsehood
!efamation &ssault and 'attery
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!eceit
!eceit is fraudulent misrepresentation that induces anotherto enter into a contract(
"n order for the defendant to be found liable, the plaintiffmust pro)e that:
i. the defendant made a false statement,ii. the defendant new about the statement,
iii. the defendant intended to mislead the plaintiff and
i). the plaintiff suffered a loss as a result of reasonably
relying on the defendants statement("f these four elements are present then the plaintiff can
reco)er damages in tort and be released from hiscontract with the defendant(
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"nterference with #ontractual
Relations
This occurs when the defendant induces the
plaintiff to breach a contract that the
plaintiff has with another party( The most
common example of this is where adefendant poaches the plaintiffs
employee( ;owe)er, it applies to any
contractual relationship(
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Passing Off
This occurs when the defendant represents
another person+s products or ser)ices as
his own(
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Nuisance
The tort of nuisance occurs when the defendant engages inan acti)ity that unreasonably interferes with theneighbours use and en$oyment of his land(3 "t does notha)e to be intentional(
'elow are some examples of nuisance: & factory that emits toxic chemicals that drift o)er to the
plaintiffs farm and destroys the crops
Loud music from a club that disturbs residents in the
neighbourhood #ooing smells from a next door restaurant
Running a foul smelling pig farm in a residential area
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"n$urious %alsehood
This occurs when the defendant maes a falsestatement about the goods or ser)ices producedby someone else that is harmful to thereputation of those goods or ser)ices.
Lawsuits under the tort of in$urious falsehoodusually occur in situations of negati)e orcomparati)e ad)ertising(
"n order to succeed in an action for in$urious
falsehood, the plaintiff must pro)e that thedefendant made a false statement about theplaintiffs goods or ser)ice with malice or otherimproper moti)e(
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!efamation
!efamation is the public utterance of a false
statement of fact or opinion that harms
another+s reputation(
@here the statement is made orally, it is
called slander(
"f it is made in writing, then it is called libel(
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&ssault and 'attery
People often confuse these two torts because they areoften $oined together in the same claim, although theyare two different torts(
&ssault occurs when the defendant intentionally causes the
plaintiff to reasonably belie)e that offensi)e bodilycontact is imminent(+ ;e does not ha)e to actually comein physical contact with the plaintiff( "t is enough thatthere is a threat of imminent physical harm( %or example,raising your fist to someone would be an act of assault(
'attery on the other is the actual offensi)e bodily contact(%or example, actually following through with your fist andhitting someone(
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!amages in Tort
Beneral !amages compensate for pain, lossand en$oyment of life, and loss of life expectancy
Pecuniary !amages compensate for loss offuture income, costs of future care and otherexpenses
Puniti)e !amages awarded to punishdefendant where defendant has acted in aseriously CmaliciousD manner
&ggra)ated !amages awarded to compensatethe plaintiff for distress and humiliation causedby a defendant+s reprehensible conduct(
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$mpact on $nternational usiness
product lia!ility costs can !e high
0.S.4 5 most pro!lematic countryhy6 5 contingency fees- strict lia!ility- 7uried trials-punitive8tre!le damages- many states have no cap on damages
/.0.4 5 strict lia!ility- damages capped
Canada4 5 more restricted and sensi!le7udicial trials- limited contingency fees
limited use of punitive damages and 9 1 M cap
+apan 5 lia!ility very difficult to prove5 system supports manufacturers
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Liability "nsurance
Liability insurance is an insurance policy whereby
the insurance company agrees to pay damages
on behalf of a person that incurs liability, up to
the monetary limits stated in the policy("t includes a duty to defend, which means that the
insurance company has to pay your legal
expenses in defending the lawsuit(
&ppropriate liability insurance is an important part
of ris management for businesses(