Fundamentals Chapter 8.pptx

 Recall and Write Students have three minutes to summarize this chapter in 3 sentences or write a question about it, in the chat window. Remember the Forgetting Curve!  Chapter 8 - Principles of Legal Liability THE CANADIAN LEGAL SYSTEM Two legal systems 1. Criminal Law Wrongs against s...

 Recall and Write Students have three minutes to summarize this chapter in 3 sentences or write a question about it, in the chat window. Remember the Forgetting Curve!  Chapter 8 - Principles of Legal Liability THE CANADIAN LEGAL SYSTEM Two legal systems 1. Criminal Law Wrongs against society ○ Relies on a system of punishment as a way to enforce the rules (defined by statute in the Criminal Code) ○ Penalties for violating laws are in the form of fines, penalties, probation, and imprisonment ○ Not usually concerned with compensating victims ○ Criminal law wants to determine guilt Insurance companies won’t pay for financial consequences due to criminal acts of insureds  Chapter 8 - Principles of Legal Liability 2. Civil Law Settling disputes between individuals OR other legal entities in matters NOT INVOLVING criminal acts AKA. Private Law If a dispute CANNOT BE RESOLVED via. Negotiation between parties → proceeds to civil court that rules in accordance with legal principles involved GOAL of civil action is to seek compensation of financial loss or damage that the insured suffers Civil Law → a judicial forum to assign fault by interpreting and developing common law principles AND applying relevant statute law  Chapter 8 - Principles of Legal Liability HOW LAWS ARE INTERPRETED COMMON LAW All provinces (except Quebec) → legal responsibility of one’s actions is COMMON LAW Based on doctrine of precedence ○ Current court decisions should follow previous decisions in a logical fashion whenever circumstances are similar ○ Incorporates case law precedent and statute law Rules of precedent → subject to change ○ Precedent may be overturned and a new one is established  Chapter 8 - Principles of Legal Liability STATUTE LAW Government statutes ALSO impose civil liability Statute law is written law Derived from bills introduced into parliament AND provincial legislative assemblies for special needs/situations When passed, statute law takes priority over existing common law precedent STATUTE LAW OVERRIDES COMMON LAW ○ A person under 21 years is considered a minor ○ Most provinces, provincial statutes lower the age to 18 or 19  Two branches of civil law 1. Contract Law Contact - a legally enforceable agreement between TWO OR MORE parties Private agreement Terms express intentions of the two (or more) parties Civil court requires proper performance of terms of contract by all parties 2. Tort Law Torts (Private wrongs) ○ Trespass, nuisance, defamation (libel and slander), false arrest, invasion of privacy, negligence  Two branches of civil law DEFINITION OF TORT A wrongful act that has negligently caused damage or injury to another. The wrongful act may be intentional, a negligent act, OR a failure to act DEFINITION OF TORTFEASOR The party who commits a wrong against an innocent party If there are two OR MORE parties acting together to cause the injury/damage, they are called JOINT TORTFEASORS  Elements of a tort Three elements that MUST ALL be present in EVERY tort action i) Duty Owed ○ Law → people have the right NOT TO BE HARMED ○ This means → people’s duty is to refrain from causing harm to others ii) Duty Breached ○ When determining responsibility → court tries to determine if there was a break of LEGAL DUTY OWED TO plaintiff ○ EXAMPLE: Law requires occupiers of property take care → ensure their premises is reasonably safe for those using the property  Elements of a tort iii) Damages suffered as proximate result of defendant’s actions There MUST BE SOME injury/damage to the person having the right to be free from harm Proximate Clause Rule ○ Must be an uninterrupted unfolding of events WITHOUT introduction of another primary cause FROM initial action TO its conclusion Tort action → only if actual damage is suffered Law → holds people responsible ONLY FOR injury/damage that is the proximate OR direct result of THEIR actions  Classification of torts - two major classes i) Intentional Torts A wrong committed by someone who KNEW THE ACT WAS ILLEGAL Liability insurance policies → DO NOT PAY for INTENTIONAL injury/damage ○ Subject to criminal prosecution AND civil action for damages ii) Unintentional Torts A careless (vs. intentional) invasion of another’s rights If injury/damage results, the wronged person may sue for damages Liability policies → primarily designed to insure unintentional torts of insureds  Classification of torts - two major classes ii) Unintentional Torts DEFINITION NEGLIGENCE ○ Negligence → carelessness ○ The omission to do something that a reasonable person WOULD do OR doing something that the reasonable and prudent person WOULD NOT do Negligence --< must be proven that the legal duty owed to plaintiff was breached AS A RESULT OF carelessness OR neglect of defendant Negligence in performance of duty MUST BE ESTABLISHED ○ Failure to act reasonably = negligence ○ Doing something not reasonable = negligence NOTE: RESULTS MUST HAVE BEEN FORESEEABLE ○ Negligent ONLY IF results of the act or failure to act could have been REASONABLY EXPECTED (or foreseen)  Strict Liability Innocent Until Proven Guilty Up to plaintiff to PROVE defendant DID COMMIT the tort Strict liability Some activities are determined by legislation OR common law to create liability without regard to fault ○ WHAT DOES THIS MEAN: Sometimes the law proceeds on the basis that a person is guilty until proven innocent  Strict Liability Strict liability Activities giving rise to strict liability normally involves situations where harm to others would result if there were an accident ○ Performing a reasonable activity in an unreasonable setting EXAMPLE: storing large amounts of highly flammable materials in a populated area ○ Hazardous activities inherently dangerous regardless of care EXAMPLE: manufacturing dangerous products ○ Allowing the spreading of an intentionally started fire Transferring financial responsibility for losses Legal actions put a financial hardship on everyone involved DEFINITION DAMAGES ○ Amount of monetary award provided by courts Insurance companies will assume financial responsibility for private OR civil wrongs of insureds ○ Insureds can be individuals and other legal entities (associations, corporations, governments)  IMPORTANT LEGAL PRECEDENTS 1. Ownership of property i) Persons entering onto the premises COMMON LAW: when persons are injured → their rights depend on the circumstances under which they ended up on the premises ○ Someone entering onto the occupier’s premises a) Trespasser Someone who is on the premises without expressed or implied permission of the occupier LEGAL DUTY OWED ○ Law → puts a level of duty on the occupier of the premises for the SAFETY OF THE TRESPASSER ○ Occupiers cannot set traps OR intentionally cause harm to trespasser  IMPORTANT LEGAL PRECEDENTS 1. Ownership of property i) Persons entering onto the premises b) Licensee (not applicable in BC, AB, ONT, and NS) DEFINITION LICENSEE ○ One who comes onto premises for his own purpose BUT WITH OCCUPIER’S CONSENT ○ Definition CANNOT EXTEND to the person doing business with the occupier EXAMPLE: postal workers, meter readers, hunters, snowmobilers, insurance salespersons Social guests → classified as licensees  IMPORTANT LEGAL PRECEDENTS 1. Ownership of property i) Persons entering onto the premises b) Licensee (not applicable in BC, AB, ONT, and NS) LEGAL DUTY OWED ○ Occupier of premises → duty to protect licensee from known concealed traps and dangers ○ Occupier owes a higher duty of care to a licensee than a trespasser  IMPORTANT LEGAL PRECEDENTS 1. Ownership of property i) Persons entering onto the premises c) Invitee (not BC, AB, ONT, NS) A person is an INVITEE onto the land of another IF ○ 1) He enters by invitation, express or implied ○ 2) His entry is connected with owner’s business OR with an activity the owner conducts OR permits on his land AND ○ 3) Occupier has some financial OR other material interest in the matter at hand Usually a business customer is in the category of invitee BUT economic benefit doesn’t have to be present EXAMPLES invitees: parties using municipal parks, playgrounds, libraries BUT MUST HAVE AN INVITATION  IMPORTANT LEGAL PRECEDENTS 1. Ownership of property i) Persons entering onto the premises c) Invitee (not BC, AB, ONT, NS) LEGAL DUTY OWED ○ Occupier of premises has a duty TO PROTECT THE INVITEE against dangers that he knows about but also against dangers that with reasonable care he might discover WHAT DOES THIS MEAN Occupier has duty to make premises safe for invitee Loose handrails, nails protruding from walls, loose ceiling fixtures Occupier has a duty to invitees to correct deficiencies to make premises safe for use  IMPORTANT LEGAL PRECEDENTS 1. Ownership of property i) Persons entering onto the premises c) Invitee (not BC, AB, ONT, NS) LEGAL DUTY OWED ○ NOTE: Duties of occupiers established IN STATUTE in SOME provinces BC, AB, Ont, NS have Occupiers’ Liability Acts Amend common law terms of licensee and invitee Instead classifying them as “visitors” These statutes replace common law duty with a common duty to take ALL responsible care to ensure all visitors are reasonably safe when using premises  IMPORTANT LEGAL PRECEDENTS 1. Ownership of property i) Persons entering onto the premises c) Invitee (not BC, AB, ONT, NS) LEGAL DUTY OWED ○ VISITORS - LEGAL DUTY OWED The Occupiers Liability Act replaces common law duty → to take reasonable care to ensure all visitors are reasonably safe using the premises DEFINITION OF VISITOR Anyone entering premises OTHER THAN a trespasser  IMPORTANT LEGAL PRECEDENTS 1. Ownership of property i) Persons entering onto the premises d) Children COMMON LAW - children lack mature judgement to avoid risk AND need to be protected ○ Property like construction sites attract children and is AKA an attractive nuisance OR an allurement LEGAL DUTY OWED - occupier must ensure premises are safe from ANY DANGER WHATSOEVER ○ ii) Persons Outside the Premises Neighbours and passers-by can be injured or damaged due to the condition of the occupier’s premises and activities conducted there  IMPORTANT LEGAL PRECEDENTS 1. Ownership of property i) Persons entering onto the premises d) Children LEGAL DUTY OWED - common law → owners OR occupiers of property have a responsibility to neighbours and passers-by ○ RESPONSIBILITIES - Actual use of property AND maintenance of buildings ○ If a property is used “normally” occupiers must maintain their building or land to avoid escape of water or sewage or obnoxious matter to the detriment of their neighbours ○ If occupiers bring a dangerous thing onto premises for their own benefit and isn’t there by nature, they are held STRICTLY LIABLE if it escapes and causes injury to others Water in swimming pools, gases, poisons, toxic products  IMPORTANT LEGAL PRECEDENTS 2. Liability of a landlord When condition of rented premises causes injury to occupiers OR damage their property there is NO RECOURSE for damages against landlord LEGAL DUTY OWED - common law → landlords aren’t responsible to ensure a building or land rented to others is fit for the purpose it is rented for UNLESS ○ They specifically warrant the fitness for the purpose OR they conceal adverse conditions EXCEPTIONS ○ a) when landlord rents furnished premises to a tenant, it is PRESUMED that the premises are fit for the purpose leased at outset of tenancy ○ b) If landlord has contracted to keep premises and FAILS, after reasonable notice, any injury/damage to property of tenant is the landlord’s responsibility  IMPORTANT LEGAL PRECEDENTS 2. Liability of a landlord LANDLORD liable when contracts to maintain premises AND FAILS to do so after reasonable notice Buildings with multiple tenancies ○ Landlord is responsible to BOTH tenant and others for condition of common areas (roof, stairways, parking areas, lobbies)  IMPORTANT LEGAL PRECEDENTS 3. Liability of a tenant to landlord Businesses that operation out of rented premises have the potential liability for loss/damage to building Tenant’s responsibility for loss can be addressed in ○ Tort Law If tenant is liable in tort for damages caused, the building owner → entitled to compensation If the damage is due to tenant’s negligence, the tenant is liable to landlord for damages ○ Contract Law Mostly, extent of tenant liability for loss is identified in the contract  IMPORTANT LEGAL PRECEDENTS 4. Liability of a Bailee DEFINITION BAILEE FOR HIRE ○ Someone with temporary custody of personal property of another for purpose other than sale AND WHO is compensated for caring, servicing, fixing the property EXAMPLES: furriers, dry cleaners, garages, delivery firms  IMPORTANT LEGAL PRECEDENTS 4. Liability of a Bailee LEGAL DUTY OWED - bailees for hire have potential for loss to a customer’s property in their possession ○ Extent of liability: Tort Law Bailees for hire must exercise the same care for a customer’s property as would be exercised by other parties in the same business (AKA. Ordinary Care) Common law → bailees are responsible WHEN duty of ordinary care is breached due to their negligence Contract Law Duty in law to exercise ordinary care over property in their care, bailees can assume other responsibilities for property under a SEPARATE CONTRACT  IMPORTANT LEGAL PRECEDENTS 5. Employer’s liability for employees i) Employer’s Liability for Torts of Employees LEGAL DUTY OWED ○ Common law → employers are held liable for torts of employees while in course of employment ○ AKA. Vicarious liability The indirect legal responsibility one person might have for another’s actions ○ COMMON LAW → Employer is responsible for torts of employees while they perform their duties  IMPORTANT LEGAL PRECEDENTS 5. Employer’s liability for employees i) Employer’s Liability for Torts of Employees EXCEPTIONS ○ Employers NOT LIABLE when employees are acting outside scope of their duties. ○ NO LIABILITY on employer for damages WHEN Employees delegate part of their authority OR arrange for another who ISN’T an employee to do their work without the employer’s consent ○ Employees on a frolic of their own They take time from their duties to attend to personal matters ○ Employees use employer’s property without authorization for their own purposes  IMPORTANT LEGAL PRECEDENTS 5. Employer’s liability for employees ii) Employer’s Liability for Injuries to Employees Employers → concerned about liability to employees who are injured in the course of employment LEGAL DUTY OWED ○ Most occupations are under the Workers’ Compensation Act that provides employees with no fault insurance benefits for injuries received on the job ○ For NO FAULT insurance benefits, employees give up the right to sue the employer for injuries received on the job  IMPORTANT LEGAL PRECEDENTS 5. Employer’s liability for employees ii) Employer’s Liability for Injuries to Employees EXCEPTION ○ Employers may be liable for damages when injuries are caused to employees in a trade or occupation NOT COVERED under Workers Compensation Plan ○ Separate arrangements for insurance are necessary Employer’s Liability Rider Enrolling employees in the workers’ compensation plan  IMPORTANT LEGAL PRECEDENTS 6. Liability for independent contractors Occupiers of property (owners, tenants) often use independent contractors to perform work ○ Occupiers may insure to extent of liability for injury/damage to others arising out of work performed by independent contractor LEGAL DUTY OWED ○ Occupiers of property ARE NOT LIABLE for negligence of independent contractor they have contracted to perform work IF IT CAN BE SHOWN Reasonable care was taken to select the in independent contractor Was reasonable that the work the independent contractor was asked to do SHOULD HAVE BEEN undertaken  IMPORTANT LEGAL PRECEDENTS 6. Liability for independent contractors EXCEPTION - occupier and independent contractor shares in any liability for injury/damage WHEN ○ Work being contracted is inherently dangerous (dynamite) ○ Injury/damage is due to contractor’s use of defective fixtures, machinery, equipment supplied by occupier ○ Occupier controls how the work is to be done  IMPORTANT LEGAL PRECEDENTS 7. Joint liability TORTFEASORS: Two OR MORE people act negligently to cause injury/damage to others PROBLEM -- > when damages are awarded against two or more persons for the SAME tort action ○ How is the responsibility divvied up? ○ This dispute may take a long time to resolve SOLUTION → ensure plaintiffs receive damages ASAP, law says that if equal liability is disputed, each tortfeasor is liable for the ENTIRE amount of the word ○ RESULT → PLAINTIFF RECEIVES TWICE THE JUDGEMENT AMOUNT SO, each tortfeasor usually agrees to pay an equal share of damages and take steps needed to resolve their dispute  IMPORTANT LEGAL PRECEDENTS 8. Liability for animals i) Domestic Animals Mostly dogs → injury when they bite innocent third parties LEGAL DUTY OWED ○ Common Law → there is NO FIRST FREE BITE and dog’s owner is legally liable from the first bite ○ From the Dog Owner’s Liability Act of Ontario NOTE: some towns, cities, municipalities, some dog breeds are declared dangerous and bylaws are established requiring owners to have greater control over these dogs Some locations require certain types of dogs to have a limit of liability insurance to pay for injuries  IMPORTANT LEGAL PRECEDENTS 8. Liability for animals ii) Wild Animals Zoos and others who have wild animals LEGAL DUTY OWED ○ Common Law → owner of any animal whose natural ferocity OR wildness is common knowledge WILL BE HELD STRICTLY LIABLE for injury/damage inflicted by it  IMPORTANT LEGAL PRECEDENTS 9. Liability of children Activities of children → playing with matches, careless use of firearms and motorized recreational vehicles LEGAL DUTY OWED ○ Children are responsible for injury/damage they cause UNLESS CAN PROVE they were incapable of understanding the consequences of their actions Parents → usually not required to pay for torts of children UNLESS IT CAN BE SHOWN ○ i) A demonstrated failure by the parents to properly supervise/control their child’s activities Parents leaving young children unattended at home or at a public event  IMPORTANT LEGAL PRECEDENTS 9. Liability of children Parents → usually not required to pay for torts of children UNLESS IT CAN BE SHOWN ii) Injury/damage caused by dangerous thing(s) or animal(s) relinquished by parents to control of the child ○ Parents ARE FINANCIALLY RESPONSIBLE for injury/damage if they give these items to their children Gun or knife ATV, dirt bike, snowmobile, watercraft Firecrackers Powered model aircraft  IMPORTANT LEGAL PRECEDENTS 9. Liability of children Parents → usually not required to pay for torts of children UNLESS IT CAN BE SHOWN iii) Injury/damage caused by a child acting on authority of parent(s) ○ Example: cutting the lawn, removing snow, painting exterior of dwelling/outbuilding iv) Injury/damage arising out of duties of employment in parent’s business ○ If parents employ their children in their business, they are responsible for injury/damage arising from this employment  Term and Definition Students have two minutes to create a “flashcard” and write it in the chat window. Write the term and the definition. It can also be a concept. No concept is too simple! Remember the Forgetting Curve!