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51 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Tort |
Civil wrong or injury recognized under law, other than breach of contract, whereby an injured party acquires the right to sue the defendant, usually for a court award in the form of compensation. |
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negligence |
The omission to do something which a reasonable person, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. |
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define The reasonable person and which case cited for definition |
Mythical creature of the law whose conduct is the standard by which the courts measure the conduct of all other persons and find it to be proper or improper in particular circumstances as they may exist from time to time. - not an extraordinary or unusual creature - not superhuman - not required to display the highest skill of which anyone is capable - not a genius who can perform unusual feats - not possessed of unusual powers of foresight Arland vs Taylor |
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Nuisance |
Private nuisance is interference with a persons enjoyment and use of living area Public nuisance is interference involving the rights of many |
2 types |
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3 elements that must be established when alleging negligence |
A duty of care Breach of that duty Casual relationship between the beach and damages |
ABC RULE |
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Prima Facie |
"On the face of it" or "at first glance" |
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Donoghue vs Stevenson brought about duty to your neighbor principle which is defined: |
persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question |
Snail in ginger beer |
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Occupier defined |
Person who has the immediate supervision and control of the premises and power to admit and exclude the entry of others. |
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4 categories of entrant |
Trespassers Licensee Invitee Contractual entrant |
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Strict liability |
Permits tort action to succeed against an occupier without having to prove negligence. Rylands V. Fletcher |
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Good Samaritan doctrine |
Defence against torts for an attempted rescue by someone who voluntarily helps a victim in distress |
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obligations of landlords |
To keep their premises in good repair. Responsible for maintaining all the common areas for safe use |
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Parents only liable for children when |
-Child was acting on the parent's express instructions or under their authority -Child was employed by parent and acting within the scope of the employment -Damage was caused by a dangerous thing or animal which parents allowed cold to control |
3 items |
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Bailor and bailee defined |
-Bailor owner of property who temporarily transfers the possession to another - bailee is party who receives the property for an agreed temporary amount of time |
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Proving negligence based on breach of statute |
- statute must have been breached - the conduct which was a breach must also have caused the damage for which compensation is being sought - statute must be intended to prevent the damage which occurred - Person making the claim must be among the group which the statute intended to protect Even though the defendant may have complied with the statue does not mean necessarily that it is a defence to a claim of negligence |
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Factors considered when assessing duty of care owed to a trespasser |
- gravity of probable injury - likelihood of probable injury - character of intrusion or trespass - nature of the premises trespassed upon - knowledge the occupier had (or ought to have had) of the likelihood of a trespassers presence - cost to occupier of preventing harm |
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Special damages |
Awarded for out of pocket expenses such as medical bills or wages already lost |
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General damages |
Compensate the victim for non monetary, hard to quantify aspects of the claim. Such damages require the discretion of the judge to fix the amount which will properly compensate the injured party |
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Nominal damages |
Awarded when plaintiff has right of action but suffered no real loss. A nominal amount such as $1 may be awarded. Tend to be awarded in libel or slander or false arrest cases |
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Punitive or exemplary damages |
Generally awarded, I addition to other damages, as punishment to the defendant where reckless or willful behavior is a factor Not generally awarded of criminal system has already imposed punishment Not covered by liability policies |
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Defences against negligence |
- denial - remoteness of damage - inevitable accident - no duty owed - emergency - act of God - voluntary assumption of risk -disclaimer |
Dad's rarely invoke nonsense echos at volcanic destinations |
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Strict liability applied to these cases |
- fire or large volumes of water used for industrial or transportation purposes - commercial use of or commercial quantities of gas and electricity - use of poisonous gases in fumigation - spraying of herbicides - keeping wild or domestic animals with known vicious tendencies |
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Exceptions from strict liability |
- act of God - escape caused by plaintiffs own actions - escape by deliberate wrongful act of tp - dangerous object is on defendants land with the implied or express consent of the plaintiff - when authorization to bring and keep the dangerous object on the defendant's land is granted by statue |
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Proximate cause |
Uninterrupted unfolding of events without intervention of another cause from the initial act to the conclusion |
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Joint tortfeasors |
Two or more persons acting in concert for a common purpose and causing injury or damage to another |
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Joint and several liability |
Allows plaintiff the option to select one tortfeasor (when there is more than one) to sue |
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Principal and agent |
Qui facit per alium facit per se - over who acts through another acts himself |
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Ways agency can be created |
By contract By ratification By estoppel By necessity |
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Misfeasance |
Improper performance of something that is legal to do |
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Nonfeasance |
Omission to perform duties which by law one is bound to do. |
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Malfeasance |
An act which in itself is unlawful and is conducted by someone in an official capacity as an official duty |
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Ladder of supply |
Manufacturer Manufacturers agent Distributor or jobber Wholesaler Retailer Installer, inspector, or repairer Purchaser, consumer or user |
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Res ipsa loquitor |
Allows burden of proof to shift to manufacturer to show it was not negligent. The premise holds that the accident could only have occurred bc of the manufacturer's negligence |
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5 sections of CGL |
Coverages Who is an insured Limits of insurance Conditions Definitions |
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CGL coverages |
A- bodily injury and property damage B- personal and advertising injury liability C- medical payments D- tenants legal liability |
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Coverages under CGL coverage A |
Insurer agrees to pay those sums that the insured becomes legally obligated to pay as compensatory damages because of bodily injury or property damage |
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Bodily injury defined |
Bodily injury, sickness, or disease sustained by a person including death resulting from these at any time |
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Property damage defined |
Physical injury to tangible property including all resulting loss of use of that property |
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Occurrence defined |
An accident including any continuous event or exposure to substantially the same general harmful conditions |
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Occurrence policy vs claims-made policy |
Occurrence policy triggers coverage when damage occurs during its policy term. Claims-made policy triggers when tp first makes claim against insured, timing of event does not wholly determine coverage |
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Coverage territory |
Include Canada the USA, its territories, possessions, international waters or airspace if the injury or damage occurs in the course of travel between these two countries. Coverage anywhere in the world for traveling salesperson away for a short time on business. Goods or products made or sold in Canada or the US are also covered anywhere in the world |
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Exclusions for bodily injury and property damage |
Expected or intended injury Contractual liability WCB legislation Employers liability Aircraft or watercraft Automobile Property owned rented or occupied by insd, property sold given away or abandoned, property loaned to insd, personal property in insd's care, part of property being worked on Property damage to insd's product Property damage to insd's work Property damage to impaired property Product recall Electronic data BI from personal and advertising injury Professional services Abuse |
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Coverage under CGL coverage B |
Personal and advertising injury covers: False arrest detention or imprisonment Malicious prosecution Wrongful eviction from entry into or invasion of the right of private occupancy Oral or written publication that slanders or libel Oral or written publication that violates a persons rights of privacy Use of another's advertising idea in the insd's advertisement Infringing upon another's copyright trade dress or slogan in the insd's advertisement |
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Exclusions under personal and advertising injury coverage |
Knowing violation of rights of another Material published with knowledge of its falsity done by or at the direction of the insd Material published prior to the policy Criminal acts Breach of contract Quality or performance of goods Wrong description of price Infringement of copyright patent trademark trade secret or other intellectual property rights (unless infringement occurs in insd's advertisement) Media and internet type businesses Electronic chatrooms or bulletin boards Unauthorized use of another's name or product |
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trade dress defined |
Total image and overall appearance of a company or product that may include features such as size shape color color combinations texture graphics or even particular sales techniques |
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CGL Coverage C |
Medical payments for reasonable medical expenses incurred by a tp regardless of fault. Injury must occur accidentally on premises the insured owns or rents or as a result of insd's operations, within the policy period and coverage territory Injury must occur accidentally on premises the insured owns or rents or as a result of insd's operations, within the policy period and coverage territory period and coverage territory |
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Medical payments exclusions |
Any insured under the policy except volunteers A person hired to do work for or on behalf of any insured or a tenant of any insured Any person injured on premises normally occupied by the injured party Anyone entitled to WCB Persons taking part in athletics Products - completed operations hazard Exclusions under coverage A |
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Coverage D (CGL) |
tenants legal liability coverage protects the insd against liability incurred for damages from all perils (unless specifically excluded) to the rented premises |
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Coverage d tenants legal liability exclusions |
Property damage expected or intended Contractually liability |
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Common exclusions |
Asbestos Fungi or spores Nuclear material Pollution exclusion Terrorism War |
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Pollution exclusion |
Part 1 removes coverage for bodily injury property damage or personal and advertising injury arising out of an actual, alleged, or threatened spill discharge emission dispersal seepage leakage migration release or escape of pollutants. (Except BI from smoke fumes soot or vapor from buildings heating cooling or dehumidifying equipment, or heat smoke fumes from a hostile fire)
Part 2 |
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