...Business Regulation /Torts and Liability Pedro A. Díaz Ramírez BUS/415 10 de octubre de 2011 University of Phoenix Profesor: Jesús Rivera Delgado Business Regulation /Torts and Liability Daños y Perjuicios Kmart vs. Colón Hechos del caso: La Sra. Colón sufrió daños a su cuerpo porque una mercancía en el pasillo de deportes de la tienda Kmart de Cayey le cayó encima mientras ella pasaba por allí. En dicho pasillo había cajas y carritos con mercancía en medio del pasillo y que dichas cajas estaban colocadas más altas que la estatura de la cliente. A causa de esto, la Sra. Colón sufrió daños a su salud y quedó incapacitada de trabajar, jugar con su hijo, y hasta relacionarse con su esposo, según ella declara y lo certifican los ortopedas que la atendieron en el hospital. En vista de esta situación la Sra. Colón demanda a dicha tienda y el Tribunal determina que KMart violó la ley de seguridad para los clientes de su tienda e indicó que “el incidente acaecido era claramente previsible. Por tanto, le impuso responsabilidad a Kmart al amparo del artículo 1802 del Código Civil, 31 L.P.R.A. sec. 5141. Además, como argumento alterno, el TPI sostuvo que, en todo caso, su fallo se justificaba al amparo de la doctrina res ipsa loquitur. Finalmente, resolvió que Kmart actuó temerariamente al haber negado su negligencia y responsabilidad. La condenó, por tanto, al pago total de $81,064.28, más costas y $2,000.00 de honorarios de abogado. La sentencia se dictó el 25 de febrero...
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...Critical Thinking in the Legal Environment: Torts and Product Liability Fall 2009 Introduction This assignment focuses on management skills that would be utilized in critical thinking in the legal environment specifically related to torts and product liability. A manager is constantly challenged with balancing responsibilities to the shareholders to make a profitable business and protecting the best interests of the employees and customers or end users of their products/services. This is especially challenging in large geographically diverse organizations, such as a McDonalds or car dealerships, where having statistical descriptive data, clear understanding of the policies, up and down the organization, and ensuring no significant information is being omitted is critical to running the company and avoiding lawsuits. A manager must be able to effectively analyze and evaluate data to make informed, intelligent decisions in many different situations. They need to be able to evaluate the reasons, without biases, in order to make sound decisions for the organization, as well as their employees and customers. There are lessons learned from the cases reviewed this week for managers related to critical thinking based on the two cases that are the focus of this paper, Liebeck v. McDonald’s and Pearson v. Custom Cleaners. . Liebeck vs. McDonalds As a very controversial tort case, Liebeck vs. McDonalds was a closely followed by the news and legal community. This...
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...Law of Torts Assignment draft This paper shall examine the current position of the Rescuer under Irish law, and critically examine how this position has developed under common law and statutes. This development can draw many of its origins from the 2009 Law Reform Commission consultation paper which essentially outlined a framework for the drafting of legislation. Furthermore analysing case law and statue from our jurisdiction and abroad, which was applied in the only real substantive case in Ireland to date, O’Neill v Dunnes Stores Ltd To determine the position of the rescuer in Ireland several factors were considered by the LRC such as the moral versus legal question of a duty to intervene, how intervention affects society and with an increasing level of litigation in modern Ireland, how the courts should view subsequent cases for and against Good Samaritans and Voluntary organisations. LRC Consultation Paper The recognition and protection of persons providing voluntary assistance has been addressed by the LRC Consultation Paper on Civil Liability of Good Samaritans and Volunteers, which proposes the introduction of a statute restricting the liability of such persons who intervene as rescuers. The recommendations in the paper essentially aimed to clarify the confusing position of rescuers in Ireland through the implementation of statute. Section 5.01 of the recommendations states “The Commission recommends that there should be no reform of the law to impose a duty...
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...“A satisfactory justification for strict liability in tort law has yet to be found.” It is generally recognised that being responsible at law or in ordinary life are very different concepts: one is based on blame while the other focuses on fault. This imbalance is embedded in the tension between the two bases of liability recognised in the law of torts. On the one hand, as stressed in Hoffman v Jones, ‘the most equitable result that can ever be reached by a court is the equation of liability with fault’. Courts have energetically defended the view that fault is crucial in establishing responsibility. On the other hand, the same jurisdictions have operated a shift since Rylands v Fletcher from this doctrinal claim to adopt a strict liability standard in particular circumstances. Despite its appearance in statutes, many claim that a satisfactory justification for strict liability in tort law has yet to be found. This essay will nevertheless argue that this stand is unsupported and untrue: it is nonsensical to call for one unique explanation for this area of the law. The law on strict liability responds to a social demand which should not be reduced to one ‘metatheory’. The first two parts of this essay will be dedicated to the analysis the ‘social and economic benefits’ of strict liability mentioned in Chavez v Southern Pacific Transportation Co. We shall then argue that these justifications are best understood when interrelated with a broader moral justification. I] Social...
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...contract and towards tort in product liability cases desirable? Introduction The approach taken with product liability cases has shifted over time. The Sale of Goods Act (1893) was an act put in place to state the terms and conditions of the contracts for the buying and selling particular goods. This act was later reformed in 1979, which fundamentally followed the same rules; the buying and selling of good were regulated by contractual agreements between the buyer and the seller. However as time progressed the sale of goods and product liability is moving from contracts and more towards tort liability. Contracts are legal promises between the buyer and seller in which the buyer promises to pay for a product that the seller must promise adheres to the standard expected from the product. A breach of contract includes that the buyer does not pay the right amount, or the more likely breach that the product has a design or manufacture defect that causes injury to the buyer. Tort liability instead simply makes the manufacturer responsible for any ‘injuries’ that the product causes the consumer. The idea behind this was because the seller is simply the agent of the manufacturer who has no part in the production process of the good sold. In this essay we will explain why product liability is starting to shift from contracts to tort. We will also discuss how tort law has developed over time focusing on the negligence rule and strict liability. Product liability law has become a very...
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...Tort Law of the People's Republic of China (Adopted at the 12th session of the Standing Committee of the Eleventh National People's Congress on December 26, 2009) Table of Contents Chapter I General Provisions Chapter II Constituting Liability and Methods of Assuming Liability Chapter III Circumstances to Waive Liability and Mitigate Liability Chapter IV Special Provisions on Tortfeasors Chapter V Product Liability Chapter VI Liability for Motor Vehicle Traffic Accident Chapter VII Liability for Medical Malpractice Chapter VIII Liability for Environmental Pollution Chapter IX Liability for Ultrahazardous Activity Chapter X Liability for Harm Caused by Domestic Animal Chapter XI Liability for Harm Caused by Object Chapter XII Supplementary Provision Chapter I General Provisions Article 1 In order to protect the legitimate rights and interests of parties in civil law relationships, clarify the tort liability, prevent and punish tortious conduct, and promote the social harmony and stability, this Law is formulated. Article 2 Those who infringe upon civil rights and interests shall be subject to the tort liability according to this Law. "Civil rights and interests" used in this Law shall include the right to life, the right to health, the right to name, the right to reputation, the right to honor, right to self image, right of privacy, marital autonomy, guardianship, ownership, usufruct, security interest, copyright, patent right, exclusive right...
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...dissimilarities of liability in tort and contractual liability along with elaborating the essence of liability in negligence and vicarious liability with the aim at depicting their applications in business contexts and daily situations. Besides, the study pursues litigations and statutes in the United Kingdom, the United State and Vietnam from the late seventeenth century until now. PART 1 THE PRINCIPLES OF LIABILITY IN NEGLIGENCE IN BUSINESS CONTEXTS 3.1 Contrast between liability in tort and contractual liability 3.1.1 The similarities and differences between liability in tort and contractual liability A tort is civil wrong for which precedents and legislative enactments imposes legal liability as personal injury, psychiatric harm, damage to property and economic loss in negligence, undermining reputations in defamation or the interference with the enjoyment of land in nuisance.(Allison, 1996) Contract law imposes obligations which the party has voluntarily agreed to assume. Tort should recompense for harm suffered rather than wrongdoer’s punishment that can be convicted by criminal law.(Baer, 1997) By contrast, contract law directs at forcing keeping promises. Besides, contractual liabilities are owed by contracting parties but tort liabilities are owed to groups of people.(Oldham, 2004) This can be a liability to the public at large, or to another individual because of the nature of the relationship.(Banakas, 1988) Similarly, in case of breach, both tort and...
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...BUSL250 – Mid-semester Notes Liabilities * Harm may be caused deliberately or carelessly * One person’s single harmful act to another person (deliberately or carelessly) can give rise to one or more legal liabilities * Legal Liabilities * Tortious Liability: harmful act can be a tort (civil wrong), other than breach of contract, remedy is compensation (commenced through litigation) * Vicarious Liability: Liability for harmful act caused by another * Statutory liability: harmful act by breach of statute, prosecution is punishment * Contractual liability: harmful act by breach of contract, remedy is compensation * Criminal liability: harmful act and harmful act is a crime, incurs criminal liability, prosecution for punishment * A harmful act may incur one or more legal liabilities * Tortious vs. contractual liability: tortious liability can incur in the absence of contract but contract liability can only incur if a contract exists. * Difference between tortious liability and criminal liability * Consequences of causing harm Tort of trespass * Trespass is actionable per se, which means that there is no need for the plaintiff to prove actual loss or damage in order to commence a civil action against the trespasser. It is, however, necessary to prove that the interference was either intentional or negligent. * Types of trespass * You commit the tort of trespass to land if you directly and intentional...
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...Q: 2 What interest groups favor of Tort Reform and why? Proponents or advocates of Tort Reform support maximizing tort liability because of the ripple effects excessive damages and legal fees have on industries and, by extension, taxpayers. Prices for services and products and products are impacted because of these ripple effects and more often than not make them costlier for consumption. Proponents of tort reform like doctors, hospital and insurance groups argue for reform while the powerful plaintiff bar and certain consumer rights groups argue against it. Arguments for tort reform generally involve medical malpractice torts along with product liability. Cases involving medical malpractice or product liability usually result in heavy penalties for the party rendering services or product. There are direct and indirect costs involved with these penalties. Tort liability has resulted in price increase for many products, for example, stepladders now cost 30% more due to this factor (Huber 1988; Discussion 1989, p. 2237).This may indirectly result in useful products/services not even making to the market. Insurance companies covering tort liability for medical mal practice or product liability have an economic interest in having a cap on the amount of penalties being awarded. It is in their economic interest in maximizing tort liability. Since insurance companies do not know the level of risk they need to insure for such services or products, they cannot...
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...Contents 1 Introduction 2 2 Describe the nature of general tortuous liability comparing and contrasting to contractual liability (3a) 3 3 Explain the liability applicable to an occupier of premise (3b) 5 4 Explain the liability applicable to the staff and discuss the nature of employer liability with reference to vicarious liability and health and safety implications of his employees (3c) 7 5 Distinguish strict liability from general tortuous liability with reference to Prime Computers (3 d) 10 6 Explain and apply the various elements of the tort of negligence and analyse the practical applications of breach of duty and remoteness in the given situation (4 a, b) 11 7 Conclusion 15 8 Reference 16 Introduction As a legal executive in a firm of solicitors, some clients have approached and seeking advice on several claims and legal disputes, which have recently arisen to them. I am required to write a report for the following contents: 1. General tortuous liability in comparison to contractual liability. 2. Vicarious liability and health and safety issues. 3. Strict liability in comparison with general tortuous liability. 4. The various elements of the tort of negligence. Describe the nature of general tortuous liability comparing and contrasting to contractual liability (3a) A tort is a legal wrong, and the principle is the law gives various rights to person, such as right of a person in...
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... Business contract shall be defined within the context of law of contract and business law . The former is narrower and the later is wider but all its components are subject to the essential elements of contract. Business law which is also known as mercantile law refers to laws governing and regulating trade , industry and agriculture . It includes laws relating to Contracts , Sale of Goods , Partnership , Companies , Negotiable Instruments , Insolvency , Carriage of Goods , Arbitration..etc. The difference between the law of Tort and the law of Contract is based on obligations and liabilities . In tort the obligations are imposed by law while in contract the obligation of the parties are created by their own free will and mutual consent. Key questions : 1.What are the essential elements of a valid contract in a business context ? Offer and acceptance , intention to create legal relations, consideration ,privity of contract . Types of contract: - face to face; written ; distance...
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...Compensation culture and tort reform ‘Compensation culture’bhas been described as ‘an amorphous term’ by Morris.b It is generally used to connote a society in which there is a propensity for anyone who has suffered a personal injury to seek punitive damages through litigation from someone connected to the injury, whether or not anyone was actually at fault, thus implying unreasonable willingness to seek legal redress when things go wrong. Commentators such as Morris, Robins and Williams have debated the existence of a compensation culture yet, in 2005, the House of Commons Constitutional Affairs Committee created a new session to investigate whether this compensation culture truly exists.bThe third report of this session is particularly illustrative, unequivocally stating that such a culture does not existband its existence is not a possibility in the near future.bThis report followed a publication by the Better Regulation Task Force (BRTF), which concluded that there is not a compensation culture, but that action was required to counter the popular perception that there is. Evidence from the Compensation Recovery Unit (CRU) supports this view as shown below. The CRU holds the most comprehensive and reliable data on the number of current personal injury claims as ‘all compensators must provide prompt notification to CRU of any claim for personal injury made against them.’...
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...Week 1- Law 122 : Why study law 1. Business decisions have legal consequences which affect profits and losses: * Some decisions impose liability, others create opportunities * Negative: dumping pollutants into environment * Positive: binding contractual party to promise 2. Risk mgmt. tool: Law sets the framework for risk, it gives you tools to manage the risk * Ex. Insurance, exclusion and limitation clauses, incorporation Dimensions of course 1. 2. Risk mgmt. 3. Legal reasoning: rules and analysis 4. Law/ moral dimensions What is law? * A set of principle and rules that courts will enforce * A way of thinking (or reasoning) about these principles and rules better description. Process determines legal reasoning * It is not just the result of a case that matters. The reasons for the result are where law happens. Law is bound up in the reasoning. So it is important to ask “why” and “how” not just “who won”. Law vs. Mortality Law: formally sanctioned, illegal behaviour Morality: informally sanctioned, moral behaviour 1. 2. Immoral but not illegal * Lying to friends 3. Immoral and illegal * murder 4. Moral but illegal Ethical perspective 1.1 pg.6 Can I watch someone drop without incurring legal liability? If I can legally do it,should i? Ethically is it okay? Ethical reasoning: * Focus on why something is ethically right or wrong...
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...A tort is a civil violation that causes injury or harm to a party, which tort law seeks to provide relief for those damages (Tort Law Overview, 2010). There are several main categories of tort law that are “intentional torts, negligent torts, and strict product liability torts” (Tort Law Overview, 2010, para. 4). We will use the above-mentioned categories to discuss the tortious acts caused by Nonlinear Pro against Quick Takes Video. We will identify potential tort risks, apply Harb’s 7-step risk management process to the main tort violation to mitigate the risk, and discuss when it is time to involve legal counsel. Potential Tort Risks After reviewing the product liability video Team A found there were a number of torts violations, we will discuss intentional torts, negligence, product liability. Intentional Torts According to Cheeseman (2010) an intentional tort is, “a category of torts that requires the defendant possessed the intent to do the act that caused the plaintiffs injuries” (p. 75). Here, we will discuss how Nonlinear Pro intentional misrepresented the product to Quick Takes Video. Intentional Misrepresentation. Intentional Misrepresentation is, false representation of material facts with the scienter, the innocent party must rely on the misrepresentation, and there is an injury (Chesseman, 2010). Nonlinear Pro promises Quick Takes Video a superior product that will meet their needs and cut project time in half. These benefits came at a lower cost than their...
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...small and big businesses like your company have numerous methods to protect themselves from lawsuits in the area of criminal activity and workplace torts. With proper training programs and a comprehensive set of electronic communications policies in place, companies such as yours can reduce many of the criminal and workplace torts that could occur within your workplace or business location and reduce the risk and occurrence of lawsuits and liabilities associated with the improper and illegal usage of the company resources such as Internet usage, email, and use of the company Network and computing systems. Many of the torts that typically occur outside of the workplace can easily occur within the workplace environment because of improper employee use, misuse, or illegal use of the Internet, social media, and email provided by companies such as XYZ Corp. A brief summary of the workplace torts that can create corporate liability and from which corporations and business owners must protect themselves from include but are not limited to: 1. Intentional torts (torts against a person): Assault, Battery, False Imprisonment, and Intentional infliction of emotional distress. 2. Property Torts such as Conversion and Copyright Infringement. 3. Dignitary torts activity that causes injury another person’s reputation or honor. 4. Torts are affecting business operations, such as Fraud and Tortious interference. 5. Negligence due to failure to provide a reasonable standard of care while...
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