Private Wrongs: Torts Negligence and Strict Liability Chapter 14

Torts a civil wrong a dispute between individuals plaintiff (victim, or complainant) is entitled to sue the defendant the court must establish legal responsibility (liability) court sets a remedy (usually financial compensation [damages], or injunction) tort may be caused by negligence, strict liability, or intentional

Torts

Negligent Torts most common type of tort before the courts Negligence a type of conduct that falls below the standard expected by society conduct involving an unreasonable risk of harm to others “criminal negligence” – wanton and reckless disregard for the lives or safety of other persons

Negligent Torts To determine negligence, the court must ask Did the defendant have a legal responsibility or duty of care to the plaintiff?

Negligent Torts To determine negligence, the court must ask Did the defendant have a legal responsibility or duty of care to the plaintiff? Was the defendant’s conduct below the standard of care expected by society? Was the defendant’s conduct the cause of the plaintiff’s loss or injury? Did the plaintiff suffer real loss or injury? The plaintiff must prove the answer to all these questions is YES to show the defendant is negligent and therefore liable If NO to any question, then defendant is not liable

Negligent Torts Defences to Negligence Voluntary Assumption of Risk Defendant must show that plaintiff knew and voluntarily accepted the risks Contributory Negligence When the Plaintiff has not used a reasonable standard of care in his/her own interest Usually to reduce, not eliminate liability

Strict Liability Torts Defendant can be liable even if there is no negligence When the nature of the act has a high degree of risk Often used with animals that are considered dangerous

Vicarious Liability When the blame is put on someone else, who is actually innocent of blame Car owner is liable even if someone else driving Employer is liable for torts committed by employee Parents could be liable for torts of their children if inadequate supervision

Applications of Negligence Product Liability Some defect in the product or packaging eg new car – brakes fail usually negligence must be proven in some areas Strict Liability may apply (manufacturers are under a higher Standard of Care)

Applications of Negligence Occupier’s Liability Do people have a duty to ensure their property is safe for visitors? Generally you must avoid causing harm by intention or negligence Invitees Occupier may get financial benefit eg customer in a store Highest standard of care Reasonable person test

Applications of Negligence Occupier’s Liability Licencee Visitors – social guests permission to be on the property but no financial benefit must be protected from concealed dangers of which the occupier is aware eg broken stairs

Applications of Negligence Occupier’s Liability Trespasser On property without permission Occupier must not injure on purpose eg cannot set a trap Child Trespasser Attractive Nuisance, or Allurement something which attracts the child on to the property child is now treated as a licencee – higher standard of care Ontario now treats all visitors, except trespassers, in the same way

Bailment Taking temporary control of someone else’s property eg borrowing the neighbour’s lawnmower to cut your grass What is the legal liability if there is damage? Gratuitous Bailment usually involves a favour to someone the bailee (the borrower) owes an ordinary standard of care to the bailor (the lender) the standard that a reasonable person would take in caring for their own property

Bailment Bailment for Reward usually a business transaction a contract often covers any liability to each party if there is no contract, then common law applies the bailee (the defendant) has the burden of proving they were not responsible for the damage