Civil Law Chapters 13 & 14
Civil law: • Private disputes between individuals or parties • Do not involve or affect other members of society as in criminal law. Types of Civil Cases • Contract • Divorces • Custody • Contested wills and estates • Personal injury
Parts of civil law: • Tort: An act of the legislature declaring, commanding, or prohibiting something; a particular law enacted and established by the will of the legislative department of government • Contracts: An agreement between two or more persons which creates an obligation to do or not to do a particular thing • Negligence: The omission to do something which a reasonable person, guided by those ordinary considerations which regulate human affairs would do, or the doing of something which a reasonable and prudent person would not do
Torts: • the act of omission (failure to do something) or the act of commission (doing something you should not) that causes harm. • there is no underlying agreement that establishes the rights and responsibilities between two parties. • In torts, the parties involved are strangers according to the law. The only reason they are brought together is the misfortune which resulted in the tort action.
Examples of Torts • Susan is struck by a reckless driver and suffers a loss of income because she can not attend work due to injuries. • The city fails to care properly for a public swing set and a child is injured as a result.
Contracts • An agreement between two people, usually in a written form. • Formal agreements that impose rights and responsibilities on the parties involved which are enforceable by law. A contract has distinct parts: • an offer and acceptance • consideration • capacity • consent and • lawful purpose.
Examples of Contracts • Jordan is hired by a grocery store to stock shelves for $8.00/hour. He does so, but the store refuses to pay Jordan for the work he provided. • Devon buys a stereo, agreeing to pay for it in 12 equal monthly payments. He makes the first three, but then fails to make the remaining monthly payments
Negligence • Occurs when someone acts carelessly, or fails to act at all, resulting in injury or loss to another person. Negligence has three characteristics: • the action is unintentional • it is unplanned • an injury results There are three stages to prove Negligence:
Stage One: Duty of Care • To act in a certain way or to not act carelessly. Examples: • the duty that motorists owe to other motorists and pedestrians • the care that doctors must give to their patients • the supervision that teachers must give to their students • the care that home owners must give to their visitors
Stage Two: Standard of Care • The degree of caution or level of conduct expected of a reasonable person. Examples: A reasonable person knows that driving 120 km/hour on an icy road could cause an accident.
Stage Two: Standard of Care The standard of care can be considered differently based on the following criteria. • Professional Liability • Medical Negligence • Children • Parental Responsibility • Rescuers
Professional Liability • Individuals with special skills, expertise, and training, have a high standard of care than the reasonable person. • Engineers, lawyers, etc. • Specialized standard of care: degree of caution of level of conduct considered necessary by a reasonable person with specialized training.
Medical Negligence • Doctor’s have a duty to explain medical procedures and any risks associated, side effects, etc. • If the doctor fails to share any of this information they have failed to provide their duty of care.
Parental Responsibility • Parents are not automatically liable for damages caused by their children, however a lawyer could argue that parents failed to train their child or supervise their activities. • If children are injured as a result of their parents negligence, they can sue their parents.
Rescuers • The standard of care of a rescuer in an emergency is quite low. • You do not, under the law, have a duty of care to help others.
Stage Three: Causation • If the first two stages have been proven then the plaintiff must prove that the actions of the defendant actually caused the injuries to the plaintiff. • Two factors must be considered: • Cause-in-Fact • Remoteness of Danger
Cause-in-Fact • “but for” test. • If an injury would not have happened “but for” the defendant’s actions, then those actions are a cause-in-fact of the injury.
Cause-in-Fact Examples • If a teacher took kids on school trip boating and failed to supply life jackets and a student drowned. • If the student was pushed overboard and drowned after being hit by the boat…
Apportionment • “But for” not having a life jacket, the student would not have drowned. However, “but for” being pushed in, she would not have drowned. She might have been saved “but for’ the boat driver who hit her, causing her to lose consciousness. • In this case the fault would be divided among a number of wrongdoers…Apportionment.
Remoteness of Danger • Harm that could not have been foreseen by the defendant due to the lack of a close connection between the wrong and the injury.
Intervening Act: • an unforeseeable event that interrupts the chain of events started by the defendant: • In the case of the boater hitting the student should the teacher have foreseen that such a thing could happen? It could be argued that the boat driver was an intervening act, and only the boat driver should be liable for the accident.
Liability • Product Liability • Occupiers Liability • Vicarious Liability • Automobile Negligence • Strict Liability
Product Liability • Refers to the legal liability of manufacturers and sellers to compensate buyers, users, and even bystanders, for damages or injuries suffered because of defects in goods purchased.
Occupiers Liability • The duty of those who occupy a property to maintain their property so that no one entering the premises is injured. • Includes renters. • No standard of care is owed to trespassers, however occupiers cannot purposely injure someone who is trespassing.
Vicarious Liability • In some circumstances, responsibility lies not only with the person undertaking (or failing to undertake) an action, but also with an individual responsible for the actions of another. Examples: • a vehicle owner for the vehicle even when the owner is not the operator, • a parent who is responsible for the actions of a child • an employer responsible for an employee.
Strict Liability • people will be held responsible for damage even though they did not act negligently or intend to cause any loss or harm. • may apply to people who keep wild animals, such as tigers or snakes. Examples: • Even if cages or fencing may be in place, the keeper of a harmful animal would be held legally responsible in the event of harm caused by their escape. • In the storage of dangerous chemicals on private property. If damages occur, the property owner could be held strictly liable and would have to pay for the harm done, even if not directly negligent.
Burden of Proof • The burden of proof in civil cases is on the balance of probabilities which means that it is more probable that one side is correct. The judge or jury listens to both sides then they weigh the evidence and make a decision.
Defences • Contributory Negligence: negligence acts by the plaintiff helped to cause their injuries.(Stopping in the middle of the road). • Voluntary Assumption of Risk: the plaintiff agreed accept the risk normally associate with the activity. (Athlete competing in physical sports, i.e. hockey or football). • Inevitable Accident: claims the accident was unavoidable due to an uncontrollable event. (Bee flies into your car and stings you so you crash). • Act of God: claims an accident was caused by an extraordinary, unexpected natural event. (violent wind storms). • Explanation: claims the accident occurred for a valid reason even though the defendant took every precaution. (Slowed down in icy conditions, but still crashed).
Civil Court • A civil case is started by one party filing a claim in the court against the other party and asking the court to decide the outcome. • This case would read differently from a criminal one in that it would be the Plaintiff (Jones) versus the Defendant (Smith). The plaintiff is the person starting the action or the one suing. The defendant is the person who allegedly caused the problem.
Civil cases with a monetary claim of $25,000 or less are heard in Small Claims Court. • Cases with a claim of over $25,000 are heard in the Supreme Court. The majority of civil cases are settled out of court.
Judge or Jury? • A civil case can be tried by judge or jury. • A civil jury has eight members. The decision of this jury does not have to be unanimous, as long as 75% or 6 out of 8 jurors agree after at least three hours of deliberation. The penalties are usually monetary in the form of a damage award.
Children & Civil Law • Person’s under the age of majority are known as “Minors.” • Minors can not sue or be sued under their own name. • Next Friend: adult who represents a child who initiates a civil suit. • Guardian ad litem: adult appointed by the court to act on behalf of a minor who is BEING sued.
Children & Standard of Care • The court places a different standard of care on children as they may not have the experience and wisdom to understand how their actions could cause injury. • HOWEVER, if a child performs an adult activity such as driving a car they are held to the same standard of care as an adult.
Parental Responsibility • Parents are NOT automatically liable for damages caused by their child. • They can be liable for negligence if they fail to train their children or supervise them. • Manitoba Parental Responsibility Act: a claimant can obtain up to $7500 from the parents of a child who commits a tort. • If a child is harmed due to the negligence of their parent, the child can sue for damages.
Children who Trespass • Law acknowledges that children are attracted to sites such as pools, or playgrounds. • Any item or site that might entice children is known as an allurement. • Occupiers must take reasonable precautions to protect children from being lured onto their property, i.e. putting a fence around your swimming pool.
Discussion Groups: Group 1: • Parents should be held responsible for their children's actions. Group 2: • What should be the age that are parents no longer responsible to provide consent for medical treatment for their children? Group 3: • What is considered reasonable discipline for a child?
Journal #4 In a one page reflection, respond to one of the following statements: • Parents should be held responsible for their children's actions. (Argue: True or False? Why?) • At what age should a person NOT require parental consent for medical treatment for their children? (Provide an age and your reason). • What is considered reasonable discipline for a child? (Explain using references to different circumstances).