...Introduction: Japan’s tort liability system has been condemned for its shortcomings, including how complex tort cases are treated, such as tort litigation arising from a mass accident or environmental pollution. Although several administrative compensation schemes were adopted in response, they were incapable of addressing cases concerning environmental pollution cases. Instead, the tort liability system has been addressing the limitations of the administrative compensation system despite its defects.The high profile Minamata Case is a great illustration of this. This paper will In essence, the case showed the perception of judges about the unequal bargaining power between victims and large companies and how the Japanese judiciary has helped create a pro-active approach to environmental pollution cases. Part I – General Rules of Tort Liability The operation of current tort liability system is based on tort provisions under the Civil Code and other special tort provisions. In case law, the loss claimed by a victim can be compensated with primary remedy of monetary damages if it had a relationship of ‘adequate causation’ with the tortfeasor’s act. However, concerning the environmental pollution cases, proving a causal relationship is difficult because the court generally heightens the standard of due care owed to by a defendant company. Part II – The Pollution-Related Health Damage Compensation System Background of Minamata case The manner of the outbreak is a result...
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...logan 2e 00 fmt 2004-1-6 12.38p Page i North Carolina Torts logan 2e 00 fmt 2004-1-6 12.38p Page ii logan 2e 00 fmt 2004-1-6 12.38p Page iii North Carolina Torts second edition David A. Logan Roger Williams University Ralph R. Papitto School of Law Wayne A. Logan William Mitchell College of Law Carolina Academic Press Durham, North Carolina logan 2e 00 fmt 2004-1-6 12.38p Page iv Copyright © 2004 David A. Logan Wayne A. Logan All Rights Reserved ISBN 0-89089-847-2 LCCN 2003115021 Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America logan 2e 00 fmt 2004-1-6 12.38p Page v To our students, who keep us learning. logan 2e 00 fmt 2004-1-6 12.38p Page vi logan 2e 00 fmt 2004-1-6 12.38p Page vii Contents Preface Acknowledgments Part I The Basic Negligence Cause of Action xix xxi 1 3 5 8 15 15 19 22 25 27 27 33 Chapter 1 Duty 1.10 Duty 1.20 Misfeasance and Nonfeasance [1] Special Applications of the Misfeasance Rule [a] Negligent Entrustment of Chattel [b] “Negligent Entrustment” and Alcohol [c] Spoliation of Evidence Chapter 2 Duty Despite Nonfeasance: The Special Relationship Exceptions 2.10 Duty Despite Nonfeasance 2.20 Duty Because of a Special Relationship between the Plaintiff and the Defendant 2.30 Duty to Control Another for the Benefit...
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...Effective from the academic year 2011-12 THREE YEARS’ LL.B. POGRAMME First LL. B. Semester – I FIRST LL.B. - SEMESTER 1 (MONSOON) PER WEEK CORE COURSE 101 SUBJECTS Law of Tort including MV Accident And Consumer Protection Laws Criminal Law Paper – I (General Principles of Penal Law) Criminal Law Paper – II (Specific Offences) Law of Contract Special Contract Constitutional History of India Use of Law Journals and Legal Software LECTURES 4 OTHERS 1 TOTAL 5 CREDITS (SEM)29 5 CORE COURSE 102 CORE COURSE 103 CORE COURSE 104 CORE COURSE 105 FOUNDATION 106 F SOFT SKILL 107 K 4 4 4 4 1 1 1 1 1 1 1 1 5 5 5 5 2 2 5 5 5 5 2 2 1 Semester – I Monsoon Semester CORE COURSE 101 : LAW OF TORT INCLUDING MV ACCIDENT AND CONSUMER PROTECTION LAWS Objectives of the course : With rapid industrialization, tort action came to used against manufacturers and industrial unit for products injurious to human beings. Presently the emphasis is on extending the principles not only to acts, which are harmful, but also to failure to comply with standards that are continuously changing due to advancement in science and technology. Product liability is now assuming a new dimension in developed economics. In modern era of consumer concern of goods and services, the law of torts has an added significance with this forage into the emerging law of consumer protection. It operates in disputes relating to the quality of goods supplied and services rendered and in...
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...Chapter 10 Product Liability I. Definition of Product Liability Manufacturers and anyone in the chain of product distribution can be legally liable for defective products that cause injury to the purchaser, a user or bystander, or their property. Most states have adopted strict product liability, whereby an injured person may recover damages without showing that the manufacturer was negligent or otherwise at fault without a contractual relationship. II. Theories of Recovery The primary theories on which a product liability claim can be brought are breach of warranty, negligence, and strict liability. A. Breach of Warranty In a warranty action, the question is whether the quality, characteristics, and safety of the product were consistent with the implied or express representations made by the seller. 1. UCC Warranties may be either express or implied for merchantability or fitness for a particular purchase, as set forth in Chapter 8. 2. Privity of Contract Breach-of-warranty is based on contract law. Generally, an injured person to recover for a breach of warranty, he must be in a contractual relationship (privity) with the seller (a consumer or buyer of the product) and prevents recovery from bystanders not in privity with the seller. B. Negligence To prove negligence in a product liability case, plaintiff must show defendant did not use reasonable care in designing or manufacturing its product or in providing adequate warnings...
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...Chapter One: The Legal Environment 1. Business activities and the legal environment 2. Sources of American law 1) Primary sources of law * Constitutional law (The U.S. Constitution, state constitutions) * Statutory law ( federal statutes, state statutes, ordinances; uniform laws) * Administrative law (administrative agencies: federal, state, local) * Case law 2) Secondary sources of law * Books , articles 3. The common law tradition 1) Stare decisis * Two aspects * Controlling precedents (binding authorities) * Departures * Persuasive authorities 2) Equity * Remedy, courts of law(king’s courts), remedies at law(legal remedies) * Equity, chancellor, courts of equity(chancery courts), remedies in equity(equitable remedies) * Plaintiffs, defendant * Action at law, action in equity * Merging * Equitable principles and maxims 3) Schools of legal though Jurisprudence * The natural law school * Legal positivism * The historical school * Legal realism, sociological school 4. Classifications of law 1) Substantive law & Procedural law 2) Civil law & Criminal law 3) National law & International law Chapter Two: Constitutional Law 1. The constitutional powers of government 1) Federal form of government: national government and the states share sovereign power. 2) Separation of powers: a system of checks and balances * Legislative...
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...disputes. The clause’s exact terms & other proof may be critical to the court’s determination of its effect. Whole of agreement clauses state that the document as executed by the parties constitutes their “intact agreement”. It is general for business contracts consist of Entire Agreement Clauses (EAC) as part of the usual boilerplate clauses. Depending on the positions being adopted in a difference of opinion, parties may seek to enforce them or avoid them. An EAC may, depending on its wording, seek to: 1. confirmation the agreement of the parties that all the express terms are said in a document, thereby excluding other alleged express terms; i) prohibit a term that might otherwise be implied; ii) restrain (perhaps cease) a party from claiming that it was induced to enter the contract by some inaccurate representation of the other party; iii) specify that the parties need to deter courts from resort to "factual context" or "surrounding circumstances" when interpreting the contract; and/or 2. Nullify the effect of any earlier agreements or collateral contracts between the parties. An EAC may seek to indicate the parties' purpose that there are no other convey terms of the agreement. The aim is to prevent any further contractual obligations arising outside the terms of the document. However, such a term cannot be conclusive, because the contract is the agreement not the document - whether the document evidences that agreement...
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... | |POSTCODE |PHONE | |4510 |(07) 5428 2759 or 0429 291 133 | |EMAIL | |ERIN.STORR@students.cdu.edu.au | |UNIT NAME | |Torts | |UNIT CODE |Semester __2____ | |LWZ116 |Year __2014_______ | |LECTURER NAME...
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...Pelman vs. McDonald Marjorie Volcy GBA504 October 13, 2012 Childhood obesity have increase drastically over the past 20 years and recently ten per cent of the world's school-aged children are estimated to be carrying excess body fat, with an increased risk for developing chronic disease. Of these overweight children, a quarter are obese, with a significant likelihood of some having multiple risk factors for type 2 diabetes, heart disease and a variety of other co-morbidities before or during early adulthood. The prevalence of overweight is dramatically higher in economically developed regions, but is rising significantly in most parts of the world. Studies suggest that excess body weight cost the US health-car systems an estimated $31 billion to treat overweight and obese children who develop any health issues due to their obesity state. One of the first lawsuits in the US against fast food industry was the case of Ashley Pelman vs. McDonald Corp. Ashley’s’ mother Roberta Pelman allege that McDonald Corp practices when making and selling its products were deceptive and that the deception caused minors consuming the products to injure their health by becoming obese. The very first time Pelman brought this case to courts the Judge dismisses the suit with leave to amend on January 22, 2003. The case was dismissed under the New York Consumer Protection Act this was because the Pelman’s failed...
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...filed by Petitioners in this Court. Petitioners request this Court to grant Petitioners’ request for a permanent injunction of Rettick’s claim in the Tribal Court of the Taraconic Tribe. The Tribal Court of the Taraconic Tribe does not have adjudicatory jurisdiction over Rettick’s tort claim a gainst P etitioners because neither Floyd Industries, LLC, nor Sandra Floyd are members of the Taraconic Tribe, because the fact that the clai m arose on tribal land is non-dispositive for jurisdiction, and because Rettick’s claim did not meet any of the ex ceptions for the general rule of limited exercise of inherent tribal power. Rettick’s claim did not meet the exceptions because his claim presents a simple torts claim that neither threatens the self -government of the tribe nor suggests the claim is contractual in nature. Because it is clear that the tribal court lacks jurisdiction over the claim, Petitioners request this Court to exercise jurisdiction over this case without waiting for exhaustion of claims in the tribal court. Accordingly, Petitioners request this Court to grant Petitioners’s request for a permanent injunction of Rettick’s claim in the Tribal Court of the Taraconic Tribe. II. FACTUAL BACKGROUND Orin Rettick (“Rettick”), a member and the Chief of Police for the Taraconic Tribe, alleges that h e was injured by a handgun sold and delivered to him by Floyd Industries, LLC and Sandra Floyd (herein collectively referred to as...
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...“DAMAGE AS A CONSTITUENT OF TORT LAW” INTRODUCTION The word tort is of French origin and is equivalent of the English word wrong, and the Roman law term delict. It is derived from the Latin word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked. It is commonly used to mean a breach of duty amounting to a civilwrong. Of the various attempts to define tort, Salmond's definition is rather popular. Salmond defines tort as a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. A tort arises due to a person‟s duty to others in generally which is created by one law or the other. A person who commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one, they are called joint tortfeaser. Their wrongdoing is called tortuous act and they are liable to be sued jointly and severally. The principle aim of the Law of tort is compensation of victims or their dependants. Grants of exemplary damages in certain cases will show that deterrence of wrong doers is also another aim of the law of tort. OBJECTIVES OF LAW OF TORTS i. To determine rights between parties to a dispute. ii. To prevent the continuation or repetition of harm e.g. by giving orders of injunction. iii. To protect certain rights recognized by law e.g. a person's reputation or good name. iv. To restore property to its...
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...Tort Law p2 * The difference between contract law and trot law is that: （这个可以不用写下来） At the core of contracts, we have agreed with specific others to do or not to do things. With Tort law, it’s much broader than that. In the agreements that we make, are not necessarily so specific and identifiable. They are much more general. * Contract law is the law that enforces agreements that I reach with individual people. There are parties to a contract. 例：I agree not to build on my property. I agree to sell you my automobile. I agree to tutor your child. Whatever your agreement might be, I agree to cater your daughter’s wedding. ---That’s contract law. It’s specific between identified parties. * A contract is an agreement between two or more individual identified parties. * Tort law is where in essence I enter into an obligation, a contract if you will with society. 例： I will act with reasonable care. I will not pollute the water of your town. I will not spread false information about you as harmful and wrong and damage your reputation. I will drive my car in a reasonable manner. If I am preparing a meal, I will take all the reasonable steps necessary to make sure that the meal is prepared in accordance with all health and safe regulations. If I operate a store, I will use all reasonable means that I have available at my disposal to make sure that the aisle ways are safe. * A tort is a “Civil Wrong”. --- That’s how we define a tort. * As...
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... to the plaintiff.” (Rogers, Winfield and Jolowicz on Tort (15ed. 1998)) Negligence protects against three different type of harm damage to property, personal injury and economic loss . Before 1932, no generalized duty of care in negligence existed. The common law in some circumstances did recognize the duty of care should be owed e.g. road accidence. The tort of negligence was fully established in the case of Donoghue v Stevenson (1932). Mrs. Donoghue went to the café with a friend who bought her a bottle of ginger beer. Mrs. Donoghue drank half the ginger beer, the rest was poured into a glass, out floated the remains of a decomposed snail, as a result become ill. HELD the manufacture owned a duty of care to the ultimate customer. In order to be successful in the claim of negligence, you must prove the existence of the following three elements : i. Duty of care ii. Breach of duty iii. Damage Duty of care is the first thing that the courts try to prove whether there is an existence of negligence . From the information provided it is clear that the surveyor gave a false statement, which caused you to buy the house. This is (unclear antecedent) called negligent misstatement . This was established in the case of Hedley Byrne & Co v Heller (1964) in which it was stated that duty of care was owed if three elements where established : i. That there was a special relationship between the parties involved ii. The party relying on the statement iii. Thereby suffering...
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...The essay will discuss the meanings of intention, motive and malice as used in the law of torts. The law of tort is concerned with civil wrongs, in the sense that a wrong or tort is committed against an individual (which includes legal entities such as companies) rather than the state. The importance of the Law of tort is that individuals have certain interests or rights which are protected by Law. These interests are protected by a court awarding a sum of money, known as damages, for infringement of ones rights. Alternatively, by the issuing of an injunction, which is a court order, to the defendant to refrain from doing something. It is important to take note of the Latin words, damnum and injuria as used in tort. Damnum means damage caused or suffered, and injuria means a right of action or claim. This is because there are some cases in which the defendant’s act or omission may have infringed or caused damage to the claimant but the claimant may have no action as the interest affected may not be one protected by Law. In Law this position is referred to as damnum sine injuria meaning damage suffered without violation of a legal right. For example; A opens a fish and chips shop in the same street as B’s fish and chips shop. A reduces his prices with the intention of putting B out of business. A has committed no tort as losses caused by lawful business competition are not actionable in tort On the other hand, there are also cases where the defendant’s act or omission causes no...
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...role of the law of tort in japan. After minamata, what are the litigations, how these cases change the role of law of tort in japan. Any wider impact and significance ? japan’s image etc. 2012 ‘The long running Minimata litigation exposes the weaknesses of Japan’s treatment of environmental pollution.’ Discuss. How weak was the law on environmental pollution. How it has changed since then. 2010 Consider the significance of the Minimata litigation on Japan’s approach to environmental protection. How the environmental protection has changed. How the cases come to court more. The contemporary enactments. “The Minimata litigation is an example of the failure of law and lawyers in Japan”. Discuss. How did the law and lawyers fail. Discuss the role of the courts in protecting human health and the environment in the light of the Minamata (1973) litigation. What was the role of the courts in protecting human health and environment in Minamata. After that, the cases that ensued, what role do courts play. And what about now. ------------------------------------------------- Introduction Pollution cases and product liability cases, where tortfeasors are major companies and the loss is widespread. The development of technology made atomic energy and various highly hazardous materials available. There are also medical malpractice cases. Despite the social changes, provisions regarding tort liability in the Civil...
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...Part 1: Law in Society A) A responsible business person would set a comprehensive code of ethics and values to be met by employees and associates, and would make clear how this code is to be enforced and in what matter it will be followed-up. A legal risk plan will be outlined and the business person will make the decision to retain a lawyer or hire an on-staff lawyer to handle all legal issues that may arise, and to follow up on the legal risk plan ensuring it is implemented accordingly and adhered to. Every business requires a budget and projected cash flow, which goes along with recruiting investors. All creditors will want to know the debt collection plan in place so the company can collect on its debts owed by customers and buyers. Employees will need to be hired and trained, and requires a review schedule to be implemented, ensuring that employees are meeting levels of service, hitting all the targets for sales, abiding by the code of ethics and upholding the company values. A clear and concise business plan is really the starting point, because any investors will want to know the advertising strategy (including target market), product lines, manufacturing/purchasing plans, management hierarchy, inventory monitoring and management, and the accounting policy to be used (IFRS vs GAAP.) A stupid business person would hire anyone, qualified or not, provide little to no training, and would likely be ignorant of legal risks surrounding their enterprise. There would be a lack...
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