Courtesy - Vahura
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Wednesday, September 3, 2008
Res Ipsa Loquitur - Law of Torts - Notes
Res ipsa loquitur - It is based on legal maxim called "Res ipsa loquitur" which means the thing speaks for itself. In order to use "Res ipsa loquitur " plaintiff must show the following:
- Absence of Explanation - There is nothing to prove
- Impossibility of Happening - The event would not have happened on its own in given circumstances.
- Management and Control of object causing accident in defendant's hand.
Byrne v. Boadle (159 Eng. Rep. 299, 1863) - A barrel of flour fell from a second-storey loft and hit the plaintiff on his head. Under these conditions, the plaintiff could not provide direct evidence as to whether the person responsible for the barrel had breached his duty of care. The court held that the fact of the barrel falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence.
Municipal Corporation of Delhi v. Subhagwanti (1966 AIR 1750) - Suits for damages were filed by the plaintiff as heir of three persons who died as a result of the collapse of the Clock belonging to the defendant Corporation. The court held that doctrine res ipsa loquitur was rightly applied as in the circumstances of the case the mere fact that there was a fall of the clock tower, which was exclusively under the ownership and control of the defendant, would justify raising an inference of negligence so as to establish a prima facie case against the defendant.
Tender Years - Law of Torts - Notes
Tender Year Doctrine - Children are not treated in the same manner as the adults. "Tender Year Doctrine" has been incorporated in common law to recognize the fact that children due to their young age are incapable of identifying negligence and hence cannot be made liable for the same. The youth in tender years doctrine has been not defined leading to certain states defining fixed age bracket for it and others comparing child in question to what a child of same age would have done in similar circumstances.
Appelhans v. McFall [757 N.E.2d 987 (2001)] - Plaintiff, an aged man was walking along when a 5 year old boy collided his bike with the man and fractured his hip. The collision took place in broad daylight, on a clear pavement, with no pedestrians, autos, or bicyclists present. Roadway was also straight and flat. Plaintiff alleged that parents negligently failed to instruct their son on proper hike usage and supervise him riding because they should have known that his youth would prevent him from considering the safely of those around him. The court held that the child was incapable of identifying negligence and hence the defendants were not liable.
Attractive Nuisance Doctrine - Law of Torts - Notes
Attractive Nuisance Doctrine - It states that a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by a hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition. The doctrine has been applied to hold landowners liable for injuries caused by abandoned cars, piles of lumber or sand, trampolines, and swimming pools. It is being used in several provinces of the United States.
The following factors are considered while applying the doctrine (Restatement of Torts §339):
- The place where the condition exists is one on which the possessor knows that children are likely to trespass
- The condition is one of which the possessor knows will involve an unreasonable risk serious bodily harm to such children,
- The children, because of their youth, cannot realize the risk involved in inter-meddling with it
- The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved
- The possessor fails to exercise reasonable care to eliminate the danger
Bennett v. Stanley [748 N.E.2d 41 (Ohio 2001)] - A five-year-old boy trespassed into his neighbour’s yard to play by their unkempt, pond-like pool, fell in, and drowned. His mother also drowned trying to save him. The father sued the neighbours in negligence. The court applied the attractive nuisance doctrine and held the neighbours liable
Vicarious Liability - Law of Torts - Notes
Vicarious Liability - It is a concept based on legal maxim "Respondeat superior" which means let the master answer. It is usually applied in fiduciary relationships such as employer and employee or principal and agent. Vicarious liability is applied only if the person causing the tort is acting within the regular course of his employment. In Unites States in certain cases even parents are held vicariously liable for their children's acts.
Keppel Bus Co v Ahmad ([1974] 2 All ER 700) - Plaintiff was a passenger who objected to a bus conductor's treatment of another passenger and then insulting language was assaulted by the conductor. The employer was held not liable as the court held that insults to passengers are not part of the due performance of a conductor's duty.
Bayley v Manchester, Sheffield and Lincolnshire Railway Co [(1873) LR 8 CP 148] - A porter, believing a passenger was on the wrong train, violently pulled him off, causing injury. The court held the porter acted as an employee but did so in a negligent way and hence the defendant was vicariously liable for plaintiff's loss.
Tuesday, May 27, 2008
Damages - Law of Torts - Notes
Damages - Tort law provides for several kinds of damages. Some of them are discussed below:-
Contemptuous Damages - Contemptuous damages are generally awarded by the court to display its disapproval at the claimant in pursuing the claim to court when they have been unreasonable in doing so.
Nominal Damages - Nominal damages are awarded where the claimant has suffered no loss but has had a right infringed.
Constantine v Imperial Hotels Ltd ([1944] KB 693) - Plaintiff was refused accommodation to without just cause. Plaintiff was awarded a small sum of five guineas in damages.
Ordinary Damages - The damages which provide for everything required are called ordinary damages.
Exemplary Damages - Exemplary damages or Punitive damages or are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit.
BMW of North America, Inc. v. Gore [134 L. Ed. 2d 809 (1996)] - Plaintiff purchased a new BMW and later learned that the car had been repainted. In a suit for suppression of a material fact, plaintiff was awarded $2 million in punitive damages. The appellate court reduced damages considerably and held that the Due Process of the Constitution limits the amount recoverable in punitive damages when the damages constitute grossly excessive punishment for a tortfeasor.
Prospective Damages - Damages which are expected to follow from the act or state of facts made the basis of a plaintiff’s suit; damages which have not yet accrued, at the time of the trial, but which, in the nature of things, must necessarily, or most probably, result from the acts or facts complained of.
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