A clear difference can be defined when determining what general tortious liability is compared and contrasted to contractual liability. In the case of Tort liability; a contract is not involved, but this fact does not mean an individual or company cannot be held accountable for their actions or lack of. To give an example, at a bakery some grains have spilled out of a bag, leaving a spill of grains all over the shop floor and when a customer arrives he or she slips and falls due to the spilled grains and gets injured.
The injured individual cannot file for a contractual liability claim, however he or she can make a file for a tortuous claim. To define who can sue in the case of tort it would entail the "injured party" and not only can they sue the seller (In the example the baker) but they can also sue the manufacturer of goods, the servicer and supplier. On the other hand when dealing with a contractual liability a whole different scenario is established. In the case of contractual liability, a contract is indeed involved.
So when someone is liable by contract, it means he or she is doing something wrong that was entailed in the contract making him or her liable, also known as a breach of contract. When someone is held liable he or she can claim damages only for the people involved in the contract, and can only sue the seller. However they can make claims for future damages that may have been induced by the defendant (including purchase price. ) Another difference that can be determined between tortious liability and and contractual liability is that with regard to privity.
As stated above in case of contractual liability, only the parties involved in the contract can sue. So if a party wants to sue on behalf of the contractual liability, it is determined that there is no privity of contract between the parties and thus the "injured" party outside the contract cannot sue. On the contrary in the case of tort liability this rule is not taken into account and all of the injured parties can indeed sue. (Adams, A (2010). Law for business students. 6th ed. London: Pitman Publishing imprint. 250-310)
The owner of a merchant store is required to maintain his or her store to such a extent that it would be safe for any visitor to visit, in law this is determined as a duty of care. Moreover a clear difference is established in law when looking at a young child and an adult individual. An adult within a society requires completely different needs and thus lives a totally different life compared to a child. Not only does an adult have different needs but is conscious about what is safe and what can and can't be done within society.
The owner must take this into account when he (as occupier of the premises) is setting up shop. In the case of a shoe store it may seem very little precautions would have to be taken, but when taking children into account, sharp bench edges and unstable shelves etc. can all be serious dangers. That's why it is of the occupier of the premise's responsibility to ensure that within reasonable foreseeability his store is safe for any visitor. (Adams, A (2010). Law for business students. 6th ed. London: Pitman Publishing imprint. 300) ii)
A premises can be considered any real estate, land, building, store , apartment, grounds, boat etc. An occupier of premises is anybody that is the owner and/or the responsible one for that premises. The occupiers Liability is; "the liability of a person who controls land or building(s) in regards to damages caused to others who enter thereon" (http://www. duhaime. org/LegalDictionary/O/OccupiersLiability. aspx) 1c) i) Vicarious liability is when someone is liable for the neglect acts of another individual, even if that someone is not directly responsible for the acts or injury caused by the individual their responsible for.
In the case of the liability of an employer towards an employee, the employer is indeed vicariously liable. To what extent the employer is vicariously liable is determined by how sufficiently the activity that gave rise to tort is closely connected with carrying out the contractual duties. If this is indeed sufficient the employer is vicariously liable. Even if the employee was negligent or disobeying to orders. However if the activity that gave rise to tort was not sufficiently closely connected with carrying out the contractual duties, the employer is not vicariously liable.
ii) When looking at independent contractors, an employer that hired them is never considered to be vicariously liable. An independent contractor is an accessory to the employers company rather than integrated in it. However even though a employer is never vicariously liable for the contractors torts, there are situations in which the employer may be held personally liable for damages resulting for the contractor's work. 1d) i) In the case of strict liability the claimant merely has prove that the tortious behavior occurred and that resulted in damages to succeed.
Strict liability is also called absolute liability and also means that the person held strictly liable doesn't necessarily have to be at fault or negligent. Strict liability is considered when a product of the defendant caused damages or the actions did. In the case of strict liability no fault has to be proven, also it does not matter if it was by accident or intentionally. In the case of tortious liability a fault does indeed need to be proven on the contrary to strict liability. Tortuous liabilities are always based upon the actual faults of a party.
A defending party would have been obliged to exercise reasonable care to prevent incidents from happening. In case of tortuous liability the intention of the defending party has to be taken into account ( has the party taken reasonable precautions to make sure their were no risks, dangers or safety hazards. ) 2a) i) the tort of negligence, "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. " (Per Alderson B., Blyth v Birmingham Waterworks Co 1856)
It is stated that any person that suffers damage from or because of defects in a product, or caused by the carelessness of the manufacture or of other parties responsible for the state of those products can indeed be entitled to sue in negligence. However, to be able to make a successful claim of negligence, the person intending to sue has to able to prove that; 1) The defendant owed the claimant a duty of care 2) The defendant failed to perform that entitled duty 3) And due to the failure damages were indeed suffered (Adams, A (2010). Law for business students.
6th ed. London: Pitman Publishing imprint. 258) The duty of care entails that a certain product or premises or service has to be sufficiently safe to be used or embarked upon. To describe I'll elaborate with an example, if a consumer buys a microwave to cook with, the manufacturer has to make sure that microwave is safe to use for the usage they are offering the product for. However if that consumer decides to use that microwave for a purpose it is not meant to do (such as frying a cellular phone) the manufacturer is not responsible because it did not fall under their duty of care. (http://legal-dictionary thefreedictionary. com/duty+of+care)
Barnett V Packer (1940) In this case a shop assistant was laying out chocolates for display was injured due to a wire protruding from one of them The shop assistant could clearly sue, but should she sue the shop owner or the manufacturer? The shop owner had purchased it from the manufacturer and thus the manufacturer was obliged a duty of care towards the shop owner and the shop assistant. Furthermore the manufacturer was also obliged a duty of care towards the people who ate the chocolate, as anybody else handling the chocolates could have sustained injuries from this foreign body.
Donoghue v Stevenson (1932, HL) In This case Mrs. Donoghue and a friend stopped at a cafi?? for a drink. The friend purchased a ginger beer for Mrs. Donoghue, and while finishing that bottle of ginger beer, the remains of a snail and its shell appeared at the bottom of the bottle of ginger beer. This of course sickened Mrs. Donoghue and she proceeded to sue the manufacturer in negligence.
This case has quiet some depth, who is responsible for what and why is no contract law applied? Due to the fact that the drink was purchased on behalf of Mrs.Donoghue there was no contract established between the bar tender and the Mrs. Thus there was no bar tender to sue, furthermore the bartender could not have known if there was a snail in the product. Ultimatley it came down to determining who was responsible for the duty of care, and the court ruled that "the manufacturer did owe Mrs. Donoghue a duty of care. As she was the user of its product, she was somebody who reasonably foreseeably would be affected by the way the manufacturer processed its product" (Adams, A (2010). Law for business students. 6th ed. London: Pitman Publishing imprint. 258)