Unintentional Torts

Negligence conduct falling below what would be expected of a reasonable person in the same circumstances a reasonable person is one who is accepted by society

4 Elements of Negligence Plaintiff has suffered actual damages Proximate Cause (Causation) – the defendant actually caused the damage Lack of Reasonable Duty of Care (Standard of Care) Foreseeability – the danger could have been foreseen (predicted) by the defendant Example: someone pulling a fire alarm as a joke Causation- ie failing to shovel, causing an accident Lack of Reasonable duty - Your actions cause harm to others Foreseeability - Knew that they could cause harm Fire alarm- people stampede out, others get trampled and injured

McDonald's case Explain how each element of Negligence is present in this case. Plaintiff has suffered actual damages 3rd degree burns from the coffee Causation Served coffee Lack of Reasonable Duty of Care Served coffee at scolding temperature Foreseeability Someone could spill on themselves (500 previous cases)

Motor Vehicle Negligence: a large percentage of tort actions are as a result of vehicle accidents (most common tort) falls under the Ontario Highway Traffic Act or the Criminal Code (federal) Ontario Road Safety Annual Report (2009) http://www.youtube.com/watch?v=_3WWpCUme3M

Liability

1. Car Owner:  liable for negligence of any driver of his/her car, when the car is being used with the owner’s permission (parents, workplace) holding a “blameless person” responsible (liable) for the misconduct of another is called Vicarious Liability Example: - lending your car an employer may be found liable for all acts committed by an employee acting in the course of employment http://www.youtube.com/watch?v=TnthObWxA4c Vicarious Liability – when a person is responsible for another’s tort Vehicle owner have a Duty of Care to lend their vehicles to competent driver  if stolen there is no liability Supreme Court of Canada brings clarity to vicarious liability of churches in Canada http://www.carters.ca/pub/bulletin/church/2005/chchlb11.htm

2. Passengers may take civil action against the wrongdoer (more than 1 driver) may contribute to your own damages (contributory negligence) → may lessen your compensation Example: not wearing your seatbelt (up to a 25% reduction in damages)

3. Driver If the driver collides with a pedestrian (or property), it is up to the driver to prove that he/she was not negligent (they stepped out into traffic) reverse onus (usually you’re innocent until proven guilty) What happens if you are injured by a person with no insurance and no personal resources? or a victim of a hit and run? Ontario government has established “motor vehicle Accident Claims Fund” (MVACF)  considered to be a “payer of last resort”

* Motor Vehicle Accident Claims Fund (pays for bodily injury) - in criminal court, perhaps the convicted can be forced to pay restitution (garnish wages, payment plan, seize assets) If civil action is taken and is successful one can apply to this fund for compensation The driver must repay in part or in full before a driver’s license and owner’s permit is returned

Manufacturer’s Liability (company) most important case in this area of tort law – Donoghue vs. Stevenson (1932) established that a manufacturer has a “duty of care” to the buyer of goods, or anyone else harmed by the goods took every reasonable precaution in production and inspection of the goods Vicarious Liability – found liable even though directly not at fault (blameless) Read Case – Donoghue v. Stevenson p.396 Read Case – Mustapha v. Culligan of Canada Ltd. P. 365 Walford v. Jacuzzi Canada Inc. p. 399

Occupier’s Liability Act a reasonable person should foresee that certain harm might come to people entering their property Examples: Handrails on a porch are secure Store owner – floors are dry and free of obstructions.

1. Invitees a higher standard of care is owed to visitors who you invite for financial benefit (business visitors) business visitor is not a social visit (ex. students at school, delivery person) * must take reasonable care to protect from unusual dangers that the owner “ought to know” about – this applies to business or social visitors

2. Licensees  enters by permission of the occupier (ex. social visit – no financial benefit) used to be a lower standard of care necessary but now the same standard of care is owed as to an invitee must warn guest of any unusual dangers

3. Trespassers a minimal degree of respect is owed to a person who enters another person’s property without permission (cannot act illegally though) Example: Burglar Burglar suing for negligent shooting: http://sanfrancisco.cbslocal.com/2012/10/24/burglar-who-shot-marin-county-homeowner-in-face-suing/ Burglar suing for negligent shooting: http://sanfrancisco.cbslocal.com/2012/10/24/burglar-who-shot-marin-county-homeowner-in-face-suing/

Occupier’s Liability Act abolition of distinction between 1 and 2 ( a higher duty of care owed to both Invitees and Licensees in some provinces including Ontario) Example: Invite a business colleague to dinner - it is both business & social Case: Driving incident

Liability for Children

Allurement something that is inviting or luring to young children that might be dangerous Ex. swimming pools, construction sites, steep hills the land owner must be able to show that all reasonable precautions have been taken to prevent accidents (fences, signs) “extra” duty of care when children are involved

Parental Liability parents are not automatically legally responsible for the torts of their children unless it can be shown that the parents themselves have also been negligent (standard of care) Example: Floyd et al v. Bowers et al p. 300 (old text)

Ontario, Manitoba, and BC have passed the Parental Responsibility Act which makes parents of those under 18 responsible if the victim proves that the child caused the property damage or loss that the defendant(s) are the child’s parents the amount of the damage

The parents are liable unless: they can prove that the damage was not done on purpose or the parents must prove that they supervised the child and reasonably tried to prevent the damage. So far very few cases have been tried under this legislation.

Medical Malpractice Negligence – The more specialized the doctor, the higher the standard of care. Comparison is to others with the same qualifications to determine if they were negligent Example: If they don’t inform a patient of the risks Must consent to treatment

Informed Consent – Doctor performed an action that led to damage without fully explaining or the defendant fully understanding ALL of the potential risks. Example Doctor’s ignorance of a particular risk is not a defence (example: side effects of a drug)

Defences to Negligence (Defendant)

1. Voluntary Assumption of Risk  one willingly or voluntarily assumes a risk, a person causing damage will not be held liable. Examples: a fan hit by a puck at a hockey game, skydiving, bungee jumping Assumes individual understands the risks involved in various activities A plaintiff who voluntarily gets into a car with a drunk driver assumes risk

2. Act of God an inevitable accident may be described as one that is unavoidable no matter what precautions the reasonable person has taken Example: lightning strikes a car causing it to collide with oncoming traffic

3. Contributory Negligence both plaintiff and defendant are in some way negligent and cause an accident damages will be split between them or more than 1 defendant blamed Example: not wearing a seatbelt and being involved in an accident – plaintiff is partly negligent for his/her own injury

4. Participation in Illegal Activities usually the wrongdoer (illegal activity) cannot sue for damages Example: John thinks he is buying marijuana (illegal substance) from Bob, however, he actually bought grass weeds. John wants to sue Bob.