2526034 Torts Negligence and Product Liability Chapter 7 2ed

7/26/2019 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(

2526034 Torts Negligence and Product Liability Chapter 7 2ed

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