Negligence SLO: I can understand the three types of torts, including negligence, intentional torts, and strict liability. I can identify relevant facts from information.

 Negligence occurs when someone acts carelessly, or fails to act at all, resulting in injury or loss to another person. Depending on their relationship, people have a legal duty of care to others to act in a certain way or to not act carelessly.  Examples of a legal duty of care include the duty that motorists owe to other motorists and pedestrians, the care that doctors must give to their patients, the supervision that teachers must give to their students and the care that home owners must give to their visitors. This general duty to be careful, and to behave in a way that society considers appropriate, is a responsibility under the law.

 However, the law does not expect that people will always behave perfectly. It is expected that people will use the skills and abilities that a reasonable person in their particular situation would use. To prove negligence, the injured person must show that the wrongdoer caused the injury, and that the loss or injury is real. To be compensated with damages, the court must find that the harm done through negligence was foreseeable.

 1. Wrongful conduct can be both a tort and a crime. Should a person who is convicted of a crime face civil liability as well?  2. Should a participant in a sporting event be able to sue another participant in the case that one player inflicts injury on another?  3. When a person lends equipment to another as a favour, why does the law provide for a tort action as a result?

Defintions  Defendant: the party being sued in a civil action or the party being charged in a criminal action  Plaintiff: the party suing in a civil action

What is the Duty of Care?

Duty of Care  The first step in a negligence action is to establish that the defendant owed the plaintiff a duty of care.  You have a duty of care to everyone with whom you come in contact on a daily basis to see that your actions do not cause harm to them or their property.

What is the Standard of Care?

Standard of Care  Once a duty of care has been established between defendant and plaintiff, the court must determine the standard of care, which is the degree of care society expects of the defendant.  Normally, this is what is expected from all adults who do not have a physical or mental disability  The standard of care expected of someone who has expertise in a particular area would be greater than that expected from an average person.  A child cannot be expected to be as responsible or as careful as an adult.

McErlean v. Sarel Case Study  Read through the case study and answer the questions individually.  You will get the chance to share your answers later.

The Judge's Decision  The trial judge found Sarel negligent and held that the City of Brampton was also responsible. The City had allowed an unusual danger, the blind curve, to harm McErlean. McErlean was also responsible too; his fault was set at 10%, Sarel's at 15% and the City's at 75%.  The City of Brampton appealed. On the appeal the City argued that the blind curve was not an unusual danger.  The Court of Appeal overturned the trial judge's finding that the City was not liable. It held that the road was not an unusual danger for its users. The boys were not young enough to make it an unusual danger for them. Also, the boys had been engaged in an adult activity, so their conduct would be measured against adult standards.  The Court of Appeal found the boys were each 50% at fault.

Robertson v. Butler Case Study  Read through the case study and answer the questions individually.  You will get the chance to share your answers later.

The Judge's Decision  The judge held that Derrick and Matthew were both liable for Derrick's injuries. Matthew was partly responsible for Derrick's injuries, and Matthew's parents failed to supervise and control Matthew's actions. It was their responsibility to train Matthew to operate a trail bike properly and to ensure that he would obey their instructions. They did not do this; they were found liable for 25% of Derrick's injuries.  Ordinarily the standard of care expected of a child depends on the age, intelligence and experience of the particular child. The court also considers the kind of activity in which they are engaged. The judge held Derrick to an adult standard because driving a trail bike is an adult activity. Derrick's conduct in driving the trail bike did not meet this standard. The judge said Derrick should have checked the brakes before starting down the hill. He was held 75% at fault for his own injuries.

More Questions to Consider  1. In this case Derrick recovered only 25% of his damages from Matthew's parents. Damages were assessed at about $16,000; therefore, Derrick recovered only $4,000. Was it a good idea to sue in this case?  2. What other options could Derrick and his family have considered?

Children and Negligence  Children under the age of 12 cannot be charged with a criminal offence. But, if a child under the age of 12 injures someone or damages another person’s property, can the victim sue the child for compensation?  The law makes it possible for the child, or the child’s parents or guardians, to be held liable in certain circumstances.  There is no hard and fast rule: each case is different and the court bases the liability on the merits of the case and the child’s background.  A child under the age of 6 or 7 is rarely held liable for negligence. They are too young to realize the consequences of their actions.  In any incident involving an older child, the courts will consider what a child of similar age, experience, and intelligence might have done. Children must provide the duty of care expected from reasonable children of a similar age. However, a lower standard of care is expected from children than from adults.

Parental Liability  Parents are not automatically liable for their children’s torts simply because they are parents. However, parents have a duty of care towards persons with whom they or their children come in contact to prevent the children from causing harm or loss to those persons.  The main responsibility for children’s safety lies with their parents. If the parents do not meet this standard, they have breached their duty of care and may be held liable for damages.  Parents are liable for accidents caused by their child driving the family car, snowmobile, or powerboat, or engaging in some other dangerous activity. This is also known as vicarious liability, the responsibility in law of one person for another person’s actions.  When children participate in adult activities such as these, the courts expect from them a standard of care similar to that of a reasonable adult.  Parents may also be found liable if it can be shown that they were negligent in the supervising of their child, or if they had instructed the child to commit a wrong.