UNINTENTIONAL TORT - NEGLIGENCE

Define Negligence

• careless conduct and/or failing below a standard which causes injury to another

Define Negligent Misrepresentation

• giving someone incorrect info and they suffer a loss because of it

• ex. preparing statements or reports that have errors that may result in a loss

What is the standard of care?

• what would a reasonable person have done in the circumstances

• not looking for perfection

Element A Required to Prove Negligence?

• A duty to care

Element B Required to Prove Negligence?

• Breach of standard of care

Element C Required to Prove Negligence?

• Causation

• defendant’s conduct caused the injury

Element D Required to Prove Negligence?

• Damage

• injury or loss

What is mandatory regarding the elements required to prove negligence?

• all elements must be satisfied

• if one element is not satisfied, then negligence isn’t proved

What is important to note regarding Negligence?

• if there’s no injury or loss, won’t be able to prove

• must consider the effect of the particular injury on the person

  • ex. broken wrist affects work

What were the Facts about the Crocker v. Sundance case?

• Ski resort had a social gathering with drinks and activities

• Crocker, intoxicated, participated in a dangerous skiing activity

• hit a tree and sustained injuries

• Crocker sues Sundance for negligence

What was Sundance’s defense to their case?

• that Crocker consented and signed a waiver

• he voluntarily did the activities

What was the Verdict with the Crocker v. Sundance case?

• Sundance found liable; negligent

• no waiver could protect the defendant

• negligent bc they had dangerous activities whilst serving alcohol

A Duty to Care - What’s Misfeasance?

• a wrongdoing

• conduct that was reckless or careless

• results in a loss or injury

A Duty to Care - What’s Nonfeasance?

• a failure

• failure to something that should’ve been done

Why are courts more willing to find liability in misfeasance cases than nonfeasance?

• court looks at relationship of parties to see if the defendant had an obligation in a non

• ex. lifeguard doesn’t help someone who’s downing

  • had an obligation and failed, but its a wrongdoing vs.

  • bystanders not helping bc they can’t swim is just a failure but not a wrong doing

A Duty to Care - Test 1: The Reasonable Foreseeability Test

• is it reasonably foreseeable that the defendant’s conduct would likely cause/result in an injury?

• ex. broken porch step → foreseeable that not fixing it, someone will get hurt

• if foreseeable, this test passes

A Duty to Care - Test 2: Anns Policy Test

• are there any policies that may deny a duty of care/liability to be imposed on the defendant?

• rare → only makes a difference in exceptional circumstances

Example of A Duty To Care Test - Facts

• I’m stopped at a red light and then thugs grab onto my door handles trying to break in

• Light turns green, and I accelerate

• thugs get injured and sue me for their injuries

Example of A Duty To Care Test - Reasonable Foreseeability Test

• would pass

• makes sense that I would injure someone who’s all over my car and then I accelerate suddenly

Example of A Duty To Care Test - Anns Policy Test

• policies do exist that would not make me liable

• thugs engaging in criminal acts

• wouldn’t pass, wouldn’t make me liable

Donoghue v. Stevenson - Facts

• Lady A and Lady B going out for drinks during lunch

• Lady A buys her and Lady B ginger beer

• Lady B found a decomposed snail at the bottom of the bottle and got ill

Donoghue v. Stevenson - Why couldn’t Lady B sue the restaurant?

• she wasn’t the one who bought the drinks, it was Lady A

• place was just selling the beer, not manufacturing it

Donoghue v. Stevenson - What was the defense of the manufacturing company?

• that they didn’t know Lady B cus she wasn’t a client/customer

• that there was no way to foresee that this particular Lady B would get ill

Donoghue v. Stevenson - Court’s Verdict

• Stevenson owes a duty to care → passes Test 1

• foreseeable that anyone consuming it could get sick if there was something wrong with it

• doesn’t matter Lady B, this could’ve happened to anyone

Breach of the Standard of Care - The Reasonable Person Test

• what would a reasonable person have done in the same situation?

• if defendant falls below this standard, then they breached it

• doesn’t have to be perfect

• increased risk - increased standards → ex. riskier activities

Mcabe Case - Facts

• gym teacher supervised a jr. high gym class while they were on gymnastics equip doing risky activities

• student gets injured → paraplegic

• teacher, school, and school board are sued

MaCabe Case - Court’s Verdict

• risky activities such as using the gymnastics equip required a high standard of care

• teacher failed to do so → liable along w the school and the board

Elaborate on the Standard of Care in professional scenarios

• inexperience doesn’t lower the standard

• if you have the credentials of that profession, you are held to the standard of the reasonable professional

Elaborate on the Standard of Care in regards to parents

• not vicariously liable

• only liable if they were negligent themselves

• ex. failing to supervise your kids then you’re liable esp when harm was foreseeable

Causation - Test 1: The “But For” Test

• if defendant didn’t do what they did, would there still be an injury?

• physical causation test

• injury would’ve happened anyway - defendant did not cause it

Causation - Test 2: The Remoteness Test

• was the injury too remote to have been foreseen

• legal causation test

• if unforeseeable, defendant is not liable

What is the Thin Skull Rule under the Remoteness Test?

• “we take our victims as we find them”

• if victim is particularly frail or if the nature of the injury is foreseeable, causation is established

Example of the Thin Skull Rule under the Remoteness Test

• you can see someone will slip on ice and break a bone, but you may not foresee the extent of it

  • ex. that person was a 90 year old with a hip injury

• you’ll still be liable for the injury

Mustapha v. Culligan - Facts

• M found a dead fly in a water bottle from water supply company C

• M suffered psychological harm → conspiracy to poison him

• lost his job and got divorced bc of this

• sued Culligan for negligence

Mustapha v. Culligan - Court Verdict

• case was too remote to be foreseeable

• no one knew this dead fly would cause him psychological harm that lead him to lose his job and get a divorce

• Did not pass the Remoteness test

Damage under Requirements for Negligence

• has to be a loss or injury

• compensation determined based on precedent cases

• more permanent injuries are worth more

• consider the particular injury on the person

  • ex. broken wrist but you need it to work

Defences to Negligence - Contributory Negligence

• plaintiff partly contributed to his own injury

• court to apportion blame and liability and damage award is divided on a percentage between plaintiff and defendant

• ex. 75% to the defendant and 25% to the plaintiff of a 1M award

Defences to Negligence - Voluntary Assumption of Risk

• defendant not liable if plaintiff assumed risk

• more applicable to recreational activities where risk is involved

Elaborate on the relationship between Voluntary Assumption of Risk and Waivers

• law doesn’t aid to someone who participates voluntarily, knowing the risks

• waiver can’t protect you much unless you clearly explain it for them to understand

• more precautions taken, more likely waiver will uphold

3 Components to Keep In Mind Regarding Waivers

• did the plaintiff know the associated risks? (physical)

• did the plaintiff waive their right to sue? (legal)

• must be an informed consent and indv. knows what they’re signing

2 Acts Regarding Occupiers’ Liability

• Common Law Rules

• Statute Laws - Occupiers Liability Act

Elaborate on Occupiers’ Liability in Common Law

• exists on a continuum

• one end → guest getting injured on another’s property

• middle → licensee

• other end → trespasser

What’s the liability of the occupier under Common Law Rules?

• occupier owes very minimal duty to trespassers

• only concerns adults

• don’t set up traps intentionally to harm someone

• higher duty to care when it comes to minors

Occupiers’ Liability under Common Law → Class Example

• BSA hosts a party at a Hall → invite guests

• Hall has the duty to care that the premises are safe even if they’re not the ones inviting

• but if someone slips on the ground cus of beer, then the BSA is liable

What is an occupier under the Occupier’s Liability Act?

• can be a landlord and a tenant

What is a visitor under Occupier’s Liability Act?

• anyone there lawfully

• anyone whose presence has become unlawful but leaving when asked

• only considered a trespasser if refusing to leave

What is the Duty to Visitors under the Occupier’s Liability Act?

• occupier must take reasonable steps to ensure visitors are reasonably safe

• occupier is responsible for the condition of the premise, the activities, and the conduct of third parties on the premise

Example of Duty to Visitors

• party at my house and we’re all drinking and everyones getting drunk

• people getting too close to the fire and then someone gets pushed in

• may be accidental

• injured person may sue the person who pushed them, but also me since it’s my property and I wasn’t monitoring anything

How can you reduce one’s liability?

• have the visitor “voluntarily assume” risks and know what they’re getting into

• have signs about proper rules and procedures and monitor the people

• if there’s danger, have specific warning signs regarding the danger

What is the duty owed to trespassers under the Occupier’s Liability Act?

• occupier has no duty or liability to trespasser if trespasser is adult

• must take reasonable measures to ensure safety of minors

• court doesn’t expect perfection

Under the Occupier’s Liability Act, what does it mean when the courts don’t expect perfection when it comes to minors?

• ex. knowing that kids in the neighbourhood may sled down the hill in my backyard

• take measures like fencing the area and having security cameras

• but court doesn’t expect extremes like chopping down trees to ensure safety

Case 1 - Minors got into an industrial area that was fenced off and got injured fucking around. What the industrial company liable?

• no

• minors were older and should’ve known better

• wasn’t foreseeable that there would be minors in the area bc they’re not allowed and therefore don’t go there

Case 2 - Children played in a paved area and a boy mistook electrical poles for monkey bars. Was the city liable?

• yes

• city knew that there were kids in that area and that they play around there

• didn’t take any precautionary measures to protect the safety of the kids

Case 3 - Frat had a Halloween party that blocked out the windows with trash bags. A guy was jumping off the walls and crashed through a window, mistaking it for a wall. What the occupier liable?

• yes, they were liable

• blacking out the windows and not taking reasonable measures to ensure your premises are safe

• doesn’t keep guests safe anymore

Case 4 - Guy at a frat party slips in his own vomit and sues the frat. Was the frat liable?

• no

• court doesn’t expect perfection

• not expected someone js waiting for someone to throw up to clean it up

• would’ve been done in a reasonable time tho