Unintentional torts - negligence and occupiers liability

what are the two broad classifications of torts?

1. Intentional

• Assault, battery

• Trespass

• Nuisance

• False imprisonment

• Defamation

• Private nuisance

• Inducing breach of contract … and other business torts

2. Unintentional

• Negligence

• Professional liability

• Negligent misrepresentation 

• << sometimes you dont mean to but when you sign up to do a job and do a mistake, it is deemed as negligent>>

true or false: battery and negligence has to have a loss to be a tort?

false:

• In battery there doesn't have to be a loss but for negligence there must be some sort of loss

what is negligence?

• Careless conduct, falling below a standard, which causes injury to another

• The standard of care is that of a reasonable person, not perfection

what is the crocker vs sundance case?

• Landmark case of negligence

• Ski resort called sundance held a mogul jumping inner tube race (day long event) of food, snacks, drinks, competitions

• One of the competitions was a inner tube race down the bumpy (mogul), very drunk people was participating and workers told him maybe he shouldn't but he said he's good to go and got badly injured

• Everybody has signed a waiver, but he still sued sundance resort

• The court said if the underlying activity is clearly negligent than a waiver consent will not mean anything and they are deemed as negligent (underlying activity -> serving alcohol all day)

what are the 4 elements of negligence?

1. A duty of care

2. Breach of duty

3. Causation

4. Damages 

true or false: only 1 element needs to be satisfied to have a winning lawsuit

false: all 4 elements must be established or the lawsuit will fail

a duty of care: what is misfeasance and nonfeasance?

• Misfeasance -> wrongdoing, doing something reckless

• Nonfeasance -> failure to act, ex. Failed to tie up the dog and the dog got loose, i failed to fix the porch and somebody fell and hurt themselves 

• Possible that nonfeasance will not attract liability rather than misfeasance, ex. A lifeguard has a duty to rescue while a bystander does not

a duty of care: what is the 1st test?

reasonable foreseeability test

•  is it reasonably foreseeable that the defendant's conduct is likely to cause injury? If so, then a duty of care is owed

what is the donoghue v. stevenson case?

• a couple of ladies were out for lunch, one of the ladies went to purchase a couple of drinks for each of them (ginger beer), both ladies drank the ginger beer, the other lady who didn't purchase it saw a decomposed snail at the bottom of the beer and couldn't see it from initially drinking till finishing it

• she can't sue the restaurant or her friend because they couldnt have known, she sued the manufacturer of the beer, the manufacturer big argument is that they do not know this woman and she hasnt bought the beer and wasn't a customer of theirs, court said if you manufacture a product put out into the world then it is reasonably foreseeable that you can injure someone because of public consumption

what is the 2nd test?

• Anns policy test: if injury or loss is foreseeable, are there are any policy grounds for NOT imposing a duty of care

• << if part 1 is satisfied then part 2 will be considered>>

• Ex. person 1 is driving around a sketchy area late at night and feeling uncomfortable, she stops at red light and all of a sudden the thugs run up and yank at the car doors, light turns green and person 1 steps on the gas and one of the thugs gets injured, thug sues person 1, given the situation person 1 should not be liable and we should not impose the duty of care>>

what test does breach of standard care use?

reasonable person test

• did the defendant's conduct fall below the standard of care of a reasonable person in the same circumstance

• Objective standard - nothing to do with personally, what an average reasonable person would do

• As RISK increases, so does the STANDARD OF CARE

what is the MacCabe case?

• Junior high student doing gymnastics unit in gym and the teacher leaves the gym for a while playing and fooling around on the gymnastics equipment

• One girl gets injured badly and disabled

• Teacher, school, school board sued by girl

• << similar situation with B law class with a professor leaving the classroom but different bc risk is low so standard of care is low (adults + no gymnastics equipment)>>

additional things to note about breach of standard care (inexperience vs upholding standard of care, who is liable for childrens actions)

• Inexperience does not result in lowering of the standard - new teachers for the first time is not an excuse, if you have the credentials (went to school and graduated) then you are held liable

• Parents are not vicariously liable for the torts of their children - only liable if negligent themselves (fail to adequately supervise the child in a situation where supervision is necessary where risk of injury/harm is foreseeable)

  • Child can be sued, however parents will be affected

what is the first test for causation?

1. The “but for” test: would the injury have occurred but for the defendant’s conduct? (physical causation test)

• If the injury would have happened anyway, the defendant did not cause it

• This test establishes physical causation - that the injury was directly caused by the defendant’s acts

what is the 2nd test for causation?

1. The “remoteness” test: was the injury too remote to have been foreseen? (legal causation test)

If unforeseeable, the defendant is not liable

• Ask whether the type of injury was foreseeable

what is the thin skull rule?

• “we take our victims as we find them” - if victim is particularly frail, too bad for the defendant

- if the nature of the injury (but not the extent) is foreseeable, causation is still established

- ex. A 90 yr old women walking on icy sidewalk and breaks both hips after a fall, defendant will most likely be held liable

- ex. Car accident caused by person 1 sued by person 2, person 2 has a condition where their blood fails to clot, person 1 will be more liable

what constitutes damage?

• Must be an actual loss or injury suffered by the plaintiff (physical or emotional/mental)

  • Ex. if person 1 falls on ice on sidewalk but does not have any injuries, no lawsuit can happen

• Look to precedents to see what types of injuries the court have deemed compensable

• Damages may include compensation for future loss of earnings

  • Ex. person 1 needs her wrist to perform her job (pianist, tennis player, massage therapist etc) but cant do her job every again bc of broken wrist

  • Looking at the particular effect on the particular plaintiff

  • Problems for life, more permanent injuries will be a higher damage award

what are the 2 defences for negligence?

1. contributory negligence

2. voluntarily assumption of risk

what is contributory negligence?

• Not full and complete defense, only lessen the liability of the defendant

• Plaintiff contributed to his own injury (partially caused or did something to make it worse)

• Contributory negligence act - partial defense

• Liability is apportioned by %, ex. If compensation in $100,000 and plaintiff is liable 40% then defendant only needs to pay $60,000

what is voluntarily assumption of risk?

• Can totally solve liability 

• All or nothing defence - defendant is 100% liable or not liable

• << victim voluntarily participated in the activity, ex. Sports>>

• << usually signs waiver, waiver does not hold in court unless the plaintiff clearly understood and read it and knew what it said and the defendant explained it>>

• Volenti non fit injuria

• << If the underlying activity is clearly negligent, the no waiver can protect the defendant, ex. Parachute fails when person goes skydiving>>

Defendant not liable if the plaintiff assumed the risk BUT

1. Did the plaintiff know the risk? (physical risk)?

2. Did the plaintiff waive his right to sue? (legal risk)

3. Must be an “informed” consent. If waiver signed, plaintiff must have read and understood what he signed

what is volenti non fit injuria?

• the law does not aid one who “consents” or participates voluntarily (waiver)

can you claim both defences in a lawsuit?

yes

• You can claim both defences in a lawsuit

what is occupiers liability?

• << subset of negligence>>

• An occupier is anyone in control of the property: owner or tenant

• Are you liable if someone gets injured on your property?

• When is an occupier liable for injuries sustained by those on their property,

• According to common law? (4 elements of negligence)

• According to statute law? (occupiers liability act)

• Does it make a difference if the plaintiff is a guest or a trespasser? yes (more later)

• Does the age of the victim matter? (yes more later)

occupier’s liability: common law - what is the greatest duty to least duty owed?

invitee…license (greatest)

• traditionally a distinction between invitees and licensees

• now all called “visitors”

• visitors are owed a duty of care

• must take reasonable steps to ensure they are reasonably safe

trespasser (least)

• owed a minimal duty of care

• no deliberate traps

• no deliberate injury

• BUT if trespasser is a minor, the law will treat him almost like a visitor

what is an occupier and visitor? how is responsibility conducted from occupiers to the visitor?

• An “occupier”, as defined by the act, includes both a landlord and the tenant. (s.1(c))

• a “visitor” is anyone there lawfully as well as anyone whose presence has become unlawful but who is leaving

• What duty does one owe to visitors?

• << vague and grey area because it will depend on the circumstances, the higher the risk the higher the standard of care>>

• A duty to take reasonable steps to ensure they are reasonably safe. (s.5)

• Note: one is responsible not only for the condition of the premises…one is also responsible for the activities and the conduct of third parties on the premises (s.6)

is there some way to reduce one’s potential liability?

• s. 7 - have the visitor “voluntarily assume” the risk (but you may have to show that he understood that risk and chose to voluntarily assume both the physical and legal waiver

• s.8 - put up a sign..or have the visitor sign a waiver. (but the sign or the terms of the agreement will only assist you if you can show that these terms were brought to the visitors attention (waiver read and understood)

• s.9 - a warning only protects the occupier if “a warning is enough to enable the visitor to be safe”.

• <<take as many precautions as you can - make sure you go through the waiver with the person, make sure participants are aware and understand, make sure there is signage and be specific about it (ex. Caution, danger = no, danger - ice sidewalk = yes)>>

what, if any, duty does one owe to trespassers?

• s.12 - re adults: No Duty ...No Liability unless one hurts them willfully or recklessly.​

• s.13- Re  minors:​

1. IF the occupier knows or should suspect that children are trespassing ......AND​

2.  IF danger exists....THEN the occupier will be liable for any injuries UNLESS he can show he took reasonable steps to ensure reasonable safety!​

s.13(2) - In determining whether the occupier has acted reasonably, the court can consider such factors as:

1. Age: 6 vs 16

2. Ability of the child to appreciate the danger: 14 yr old with mental disability that has the mental capacity of a 6 yr old

3. Burden: on the occupier of eliminating the danger or protecting the child from the danger as compared to the risk of the danger to the child: you know that there are children in your neighborhood (precautions: fences, signage, talk to the neighbors and their children), court will not expect perfection (unreasonable limits to make everything completely safe)

what are some examples of determining the acts of occupiers liability?

• Ex. place in sherwood park which is very industrial and wouldn't expect children to be anywhere near the area, one night a bunch of older teenagers (16 and 17) got into the area (precautions were taken: fences, signage) and some teenager got injured, there was no liability found because they have taken reasonable precautions and the teenagers should no better

• Ex 2. Residential area with a large paved area which was often used for kids to play, is was known and tolerated, a 9 yr old went under the fence and climbed the electrical pole which eventually had his arm lost, city was found liable because not enough precautions, easily going around and kids were known to play near it, not enough signage

• Ex 3. 2 youngs guys snuck into a garage (trespassed and found keys) and stole a car and got into an accident and badly injured, liability was both young guys and garage owner, but the garage owner was 37% liable, the driver young guy was 23% liable, parents (of the driver) were 30% liable for failing to supervise, and the injured was 10% liable, this was because the car was unlocked and the keys were in the trash tray

• Ex 4. Fraternity had a halloween party with dancing, drinking and then one fella was dancing by himself and enjoying himself and got inebriated(intoxicated), then there is slambouncing going on which is great fun for them, then the fella started slam bouncing against the wall, then he slammed through a glass window and broke the window then cut himself and fell down a 2 story window, he sued the group and the group was found liable for not keeping premises safe for invited guests, the wall and windows were blacked out so people can not tell which is a wall and what is a window

negligence - relevants acts

Contributory Negligence Act​

• This provincial statute governs the apportioning of liability among the persons responsible for causing damage or loss (ie. Plaintiff can be contributorily negligent in respect of his own injury).​

Occupiers’ Liability Act​

• This provincial statute deals with the liability of Occupiers of premises to visitors and trespassers.