Chapter 4 Flashcards
(pg 396-397) Who is liable for unsatisfactory performance or wrongdoing (breach of contract) under a work contract?
If an employee is performing work for the employer, any legal liability falls to the employer, even if the conduct was prohibited and not authorized.
Tort:
Act hurting a person or damaging property of another (physically, emotionally, or financially).
What are the three things upon which in tort law, a breach of obligation to the victim is NOT based upon?
Consent, agreement, or contract.
Is the intent of tort law to compensate victims for harm or to punish the offender?
To compensate victims for damages.
If tort law establishes there is right to claim in a situation, what other two things does it help determine?
Who bears the loss and how to apportion the losses.
Strict liability:
Liability imposed based upon cause regardless of whose fault or what the intention (earlier law uses this principle, but later laws were made to consider (indirect and consequential injuries).
Fault:
Blameworthy actions unjustifiable because it disregards the concerns of others.
What is one of the main reasons liability is often based upon fault? How might this incentive be made less effective?
Its deterrent effect i.e. causing fear of consequences. If a company has liability insurance however, the insurer may have to pay for the loss, and the incentive to be more careful is lost.
Where can fault be a disadvantage for a victim of an accident?
In the event that it cannot be proved that there is any Fault on anyone’s behalf, the victim may go uncompensated.
What is a general circumstance when strict liability may be used today, or the effects of certain legislation may result in a similar effect to that of strict liability?
When a person knowingly undertakes some risky activity, such as storing explosives or oil, fault is usually considered. However, the standard of care in such situations is so high that the effect is roughly the same as strict liability being applied.
Standard of care:
Level of care someone must take given some specific circumstances (likelihood of harm, degree of harm, utility of activity, feasibility of eliminating risk).
Public policy:
Economic, social, and political considerations and objectives believed to be beneficial to society.
No-fault insurance:
You will be compensated regardless of fault in an accident. It helps to expedite compensation without blame being passed around. However, this does not mean no one is at fault.
Workers compensation and vicarious liability:
Employers contribute to fund to compensate workers injured on the job, regardless of how the injury is caused. The fact that the injury may be as a result of employee’s carelessness and the employer may be blameless is negligible (study Fig. 4.1).
Give two public policy reasons for why the vicarious liability approach is used.
i) employees have limited assets ii) seems fair that whoever will profit from activity should be liable for the loss (burden).
What are the two types of torts?
Intentional and non-intentional.
Compare and contrast the two types of torts. What does the intention of the tort relate to?
Intentional torts is where conduct is deliberate, and vice versa for unintentional torts. In both, the harm may be unexpected, but intention relates to the behavior, not the resulting damage.
What is required for a tort to be actionable?
Must result in harm or damage.
Assault:
Threat of violence to a person.
Battery:
Unlawful physical contact with a person.
Public nuisance:
Interference with use of public facilities.
Private nuisance:
Interference with occupier’s use and enjoyment of property (does not include trivial annoyances, and is subject to several considerations).
