Topic 6 - Unintentional Torts: Negligence & Occupiers' Liability Flashcards
What are the 2 broad classifications of torts?
Intentional and unintentional
What are the 3 unintentional torts?
- Negligence
- professional liability
- negligent misrepresentation
What is negligence?
Careless conduct, falling below a standard which causes injury to another
What is the standard of care?
That of a reasonable person, not perfection
What case is a good example of negligence?
Crocker v. Sundance
Because Sundance owed the duty of care to Crocker (appellant) to take all reasonable steps to prevent him from participating in the sport while they were aware he was visibly intoxicated
What are the 4 key ingredients of negligence? (all 4 must be established or the lawsuit will fail)
- A duty of care exists
- Breach of that duty (breach of “standard of care”)
- Causation - the defendant’s conduct caused the injury
- Damages - victim suffered an injury or loss
ABCD
A: Duty of Care
What is a misfeasance?
a wrongdoing
A: Duty of Care
What is a nonfeasance?
A failure to act
Does a nonfeasance always attract liability?
No, a duty of care may not exist unless a particular relationship exists obligating the defendant to act (e.g. a lifeguard has a duty of care to rescue but bystanders do not)
What are the 2 parts of the Duty of Care test?
- Reasonable foreseeability test
- Anns policy test
What is the 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 a landmark negligence case for duty of care?
Donoghue v. Stevenson
Mrs Donoghue sued a ginger beer manufacturing company after she fell ill from a snail in a bottle of their ginger beer. It was held that it was reasonably foreseeable that failure to ensure the product’s safety would lead to harm to consumers.
What is the Anns Policy test?
If injury or loss is foreseeable, are there any policy grounds for NOT imposing duty of care?
What are two relevant cases involving the Anns policy test?
Dobson v. Dobson: a pregnant women was sued for the injuries she caused to her fetus by getting into a car accident but was found that pregnant women do not owe duty of care to unborn fetuses in their womb
Childs v. Desormeaux: Social hosts of parties do not owe duty of care to members of the public who may be injured by an intoxicated guest’s conduct
B: Breach of standard of care
Uses what test?
Reasonable person test: Did the defendant’s conduct fall below the standard of care of a reasonable person on the same circumstances?
As _______ increases so does standard of care
risk
Breach of Standard of Care
___________ does not result in the lowering of the standard
inexperience
(novice professionals must perform to the standard of the reasonable professional)
Breach of Standard of Care
Are parents liable for the torts of their children?
No, they are not vicariously liable, however, they are liable if negligent themselves (e.g. failing to supervise a child where supervision is necessary and risk of injury/harm is foreseeable)
People are liable in a civil case for their careless behavior if that behavior harms someone else. Regarding this area of law, which one of the following statements is TRUE?
(a) The result in the Donoghue v. Stevenson case, in which a woman purchased a tainted bottled soft drink for her friend, was that the manufacturer was not held liable.
(b) As long as one performs to the best of her ability, the person will not be held liable for negligence.
(c) Manufacturers and vendors of their products are liable only to parties who actually purchase those products.
(d) The courts employ the foreseeability test to determine if a duty of care is owed to the plaintiff, but policy considerations may also come into play.
(d) The courts employ the foreseeability test to determine if a duty of care is owed to the plaintiff, but policy considerations may also come into play.
In the context of a negligence action, which of the following tests is used to determine if the defendant owed the plaintiff a “duty of care”?
(a) Would a reasonable person have foreseen that type or kind of injury?
(b) Would a reasonable person have acted like that in the circumstances? (c) Was it reasonably foreseeable that the plaintiff could be injured by the defendant’s conduct? (d) Would a careful person have acted like that in the circumstances?
(c) Was it reasonably foreseeable that the plaintiff could be injured by the defendant’s conduct?
Harry, a troublesome 13 year old, got carried away with a prank and ended up setting fire to and destroying a neighbourhood bakery. The owner of the bakery consults you, asking whether he can sue and who to sue. The best advice would be:
a) An action cannot be brought against such a young teen because of his age. The baker cannot sue.
b) The baker can sue both Harry and his parents. The baker may try to prove that Harry was negligent and that the parents were negligent in failing to adequately supervise him.
c) The baker can sue Harry’s parents directly, for parents are directly liable for torts committed by their kids.
d) A negligence claim can be brought against Harry, despite his age. The parents are vicariously liable as well.
b) The baker can sue both Harry and his parents. The baker may try to prove that Harry was negligent and that the parents were negligent in failing to adequately supervise him
C: Causation
What is causation?
one is only responsible for damage one actually causes
What are the two parts to test Causation?
- “But for” test
- Remoteness test
What is the “but for” test?
would the injury have occurred but for the defendant’s conduct? (if the injury would have happened anyway, the defendant did not cause it)
What is the remoteness test?
Was the injury too remote to have been foreseen? (if unforeseeable the defendant is not liable)
What was the case of Mustapha v. Culligan?
A customer sued a bottled water company for psychiatric injury after seeing flies in his water and claiming that this caused him depressive disorder, phobia and anxiety. The court ruled that the basis of this injury was not foreseeable and hence did not give rise to cause of action (causation).
What is the thin skull rule?
if a victim is particularly frail then that is taken into account in the case (victims are taken as they are found)
If the ________ ___ ____ ________ (but not the ________) is foreseeable, causation is still established
nature of the injury, but not the extent
What are the 3 key points of Damages?
- must be an actual loss or injury suffered by the plaintiff
- look to precedents to see what types of injuries the courts have deemed compensable
- damages may include compensation for future loss of earnings
In a negligence action, the plaintiff must prove (among other things) that the defendant’s conduct fell below an acceptable standard. What is the standard that the defendant must meet to avoid liability?
a) that the defendant acted flawlessly.
b) that the defendant acted to the best of his/her ability.
c) that the defendant acted with sincerity and goodwill.
d) that the defendant acted as a reasonable person would in the circumstance.
d)
Melissa suffers from osteoporosis. She was recently injured in a motor vehicle collision. The driver of the other vehicle was at fault, being intoxicated at the time. Which of the following statements concerning the applicable law is FALSE?
(a) The thin skull rule dictates that if a victim suffers from a special weakness that makes her more susceptible to injury, the wrongdoer will still have to compensate the victim for the full extent of her injuries.
(b) The plaintiff has the burden of establishing that the defendant was at fault.
(c) To ascertain if the defendant was sufficiently careful, the courts apply the “but for” test.
(d) The courts will compensate Melissa for her bodily injury, for the damage to her car, and also for less visible forms of injury such as nervous shock.
(c) To ascertain if the defendant was sufficiently careful, the courts apply the “but for” test.
The “but for” test is used to test causation not standard of care
The __________ has the burden of establishing that the ___________ was at fault
The PLAINTIFF has the burden of establishing that the DEFENDANT was at fault
What are 2 defenses to negligence?
- Contributory Negligence
- Voluntary assumption of risk
What is Contributory Negligence/The Contributory Negligence Act?
When the plaintiff contributed to their own injury (partially caused the injury or did something to make it worse)
What happens with liability if the plaintiff is found Contributory Negligent?
Liability is apportioned by % (damages apportioned by %), the court is directed to apportion blame and liability
What is voluntary assumption of risk?
defendant is not liable if the plaintiff assumed risk
BUT
- Did the plaintiff know the risk? (physical risk)
- Did the plaintiff waive his right to sue? (legal risk)
- Must be an “informed” consent. If waiver signed, plaintiff must have read and understood what he signed.
Who does the term “occupier” refer to in occupiers’ liability
an occupier is anyone who has control of the property; can be either an owner or tenant
Under Occupier’s Liability: Common law
How are Visitors (Invitees and Licensees) treated?
visitors are owed a duty of care and occupiers must take reasonable steps to ensure they are reasonably safe
Under Occupier’s Liability: Common law
How are Trespassers treated?
Owed a minimal duty of care: no deliberate traps or ways to cause injury
UNLESS the trespasser is a minor
Under Occupier’s Liability: Common law
If a trespasser is a minor, how are they treated?
the law will treat them almost like a visitor
Under the OCCUPIER’S LIABILITY ACT who is considered to be a visitor?
anyone there lawfully as well as anyone whose presence has become unlawful but who is leaving.
Under the OCCUPIER’S LIABILITY ACT what other responsibilities apply to the occupier?
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
Under the Occupiers Liability Act what are the 3 sections that may 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 risk.
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 visitor’s 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”.
Under the Occupiers Liability Act what duty does one owe to trespassers that are minors?
(a)IF the occupier knows or should suspect that children are trespassing ……AND
(b) IF danger exists....THEN the occupier will be liable for any injuries UNLESS he can show he took reasonable steps to ensure reasonable safety
What section of the Occupiers Liability Act covers the liability of occupiers to minor trespassers?
Section 13
Under section 13 of the Occupiers Liability Act
In determining whether the occupier has acted reasonably, the Court considers what 3 factors?
(a) the age of the child,
(b) the ability of the child to appreciate the danger, and
(c) the 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.
According to Alberta’s Occupiers’ Liability Act, the following is a trespasser:
a) anyone there lawfully.
b) anyone whose presence has become unlawful but who is leaving.
c) anyone who is present with the consent of the occupier.
d) anyone who refuses to leave after being asked to leave.
d) anyone who refuses to leave after being asked to leave.
