Chapter 3 Review Questions LGST 369

Chapter 3 Review Questions: What is a "tort"? A tort is a failure to meet a private obligation that is imposed by law. To whom is the obligation owed in tort law and in criminal law? Identify the person or party entitled to complain in court about a tort or a crime. In tort law the obligation is owed to a person. While in criminal law the obligation is owed to society as whole. The people entitled to complain in court for a tort would be the two personal parties involved in the tort, while in criminal law it would be the defendant and the crown. Is it ever possible for the same set of events to be both a tort and a crime? Explain your answer. Yes, it is possible for the same events to be both a tort and a crime. For example, if I hit you and you fall over and sustain an injury, I will be guilty of the tort of assault, as well as the crime of assault. Is it ever possible for the same set of events to be both a tort and a breach of contract? If so, why would it ever be desirable to sue for both? Yes, it is possible for the same events to breach a contract and commit a tort. If one sues for both, they will have the option of a forward-looking payment (contract) or backwards-looking (tort) and can therefore decide which compensation best fits their needs. "Tort law does not punish acts alone. A court will never impose liability if the defendant did not act with a guilty mind." Is that statement true? Explain your answer. This is a false statement, a strict liability tort does not require any intention of wrongdoing, or carelessness. Liability is simply imposed because the defendant was responsible for the situation that injured the plaintiff. This is due to strict liability torts being inherently dangerous. Explain the "one free bite" rule. The one free bite rule is a rule that states that tame animal owners are allowed one free bite, and liability cannot be shifted to the owner of the animal. There are exceptions to this, if the owner of the animal knew it was aggressive or has a history of being dangerous. As well victims can now seek damages from the owner.
How is liability insurance related to the concept of risk management? Liability insurance uses the tool of risk shifting, If one of your employees or the business itself is found guilty of a tort or breach of contract the liability insurance will cover the damages allowing the business or person to not get fucked. When does a "duty to defend" arise? Why is it important? A duty to defend arises when an individual is sued. An insurance company has to use all means to defend your interests with their resources if you are insured with them. It is important because litigation can be very costly. "Liability insurance creates an interesting tension between two of tort law's most important functions." Explain the meaning of that statement. Liability insurance helps compensation function of torts. Where it will allow victims to receive full compensation, however it also takes away from the deterrence function. As people will have little reason to be afraid if they are carrying insurance that will just pay for any wrongdoings. Is it possible to purchase liability insurance as protection against liability for every type of tort? Explain your answer. It is not possible; insurance companies will not cover any torts that are intentional or any criminal acts. This is usually done through an exemption clause within the contract itself. What is the difference between vicarious liability and personal liability? Vicarious liability is when one person is held liable for a tort that was committed by another person. While personal liability is what you, and only are liable for when committing a wrongdoing. On what grounds can vicarious liability be justified? Vicarious liability can be justified through the ground of: - Compensation - The compensatory function of tort law ensures that the victim receives full compensation, in that an individual employee may not have the funds available to compensate the victim but the business most likely will. - Deterrence - It encourages employers to avoid hazards actions, as they know they will be held liable as well. - Fairness - sometimes it is appropriate for a business to be responsible for its actions even if the loss is created by an employee. When will an employer be held vicariously liable for torts committed by
their employees? When will an employer be held vicariously liable for torts committed by their independent contractors? They are held liable if the tort occurs inside the employment relationship. If it is outside of that relationship, they are not liable. Such as when a employee uses a company truck off the clock to get groceries, and crashed into someone when driving negligently. An employer will be held vicariously liable for an independent contractor if it is proven that they are an employee. How does the vicarious liability of an employer affect the personal liability of an employee? It does not relieve the employee of personal liability, as if a person sues both the employer and employee and wins the claim, they may demand payment from either one. However, if they demand from the employer, the employer can legally demand the payment from the employee. This is rarely done though, as employees probably don't have a lot of money and it would destroy morale in the workplace. Are compensatory damages calculated in the same way in both tort and contract? Explain your answer. They are not, in tort law, compensatory damages are backwards looking, in that they try to award on the basis of what you have had. While contract damages are awarded forward looking, what would you have had if the contract had been performed. Explain the relationship between compensatory damages and the concept of remoteness. Damages will only be awarded if the tort is found to not be to remote. In that a judge will look at the case and see if a reasonable person in the defendant's position would have realized what the activity would have done to the plaintiff. If it is unfair to hold the defendant responsible than no damages will be awarded and is said to be to remote. "Courts often refuse to award punitive damages. In most cases, they refuse to do so because the defendant failed to fulfill the duty to mitigate." Is that statement true? Explain your answer. This is a false statement, courts usually do not award punitive damages in Canada, this is due to the fact that it must be an exceptional circumstance. Usually when the defendant has acted harshly, vindictively, or maliciously.
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