Copyright © 2004 McGraw-Hill Ryerson Limited

Copyright © 2004 McGraw-Hill Ryerson Limited
Part 2 – The Law of Torts Chapter 5 – Unintentional Interference Prepared by Douglas H. Peterson, University of Alberta Copyright © 2004 McGraw-Hill Ryerson Limited

Unintentional Interference
The Concept of Tort Liability General Tort Defenses Tort Remedies Strict Liability Vicarious Liability Negligence - Duty of Care Breach Damage and Proximate Cause Foreseeability – Reasonable Person Copyright © 2004 McGraw-Hill Ryerson Limited

Strict Liability Responsibility for loss regardless of the circumstances Liability imposed irrespective of proof of negligence Based on risk taken and profit to be made Copyright © 2004 McGraw-Hill Ryerson Limited

Liability Vicarious liability – the liability at law of one person for the acts of another Based on concept of deeper pockets of employer than employee Basic principles Who takes the risk Who profits from the risk Social policy – employer can better afford to compensate victim than employee Copyright © 2004 McGraw-Hill Ryerson Limited

Unintentional Torts (Duty not to Injure)
Injury caused not by intentional acts but by carelessness, negligence Acts of commission and omission Copyright © 2004 McGraw-Hill Ryerson Limited

Proximate Cause/Duty of Care
Proximate Cause – a cause of injury directly related to an act of a defendant Plaintiff must show that the Defendant’s act was the proximate cause of the injury Copyright © 2004 McGraw-Hill Ryerson Limited

Duty of Care Duty of Care The duty not to injure another person, to avoid careless acts that cause harm to others Thou shalt not injure thy neighbor Neighbor - anyone who might reasonably be affected by another’s conduct The responsibility to avoid careless acts that cause harm to others Reasonable Care The care a reasonable person would exhibit in a similar situation Copyright © 2004 McGraw-Hill Ryerson Limited

Duty of Care Nature of duty of care Mechanism to control scope of liability Duty of care: liability possible No duty of care: liability not possible If it would be apparent to a prudent person that the conduct was likely to cause injury - duty is owed. We owe a duty to anyone we can reasonably anticipate might be harmed by our conduct Copyright © 2004 McGraw-Hill Ryerson Limited

Foreseeability: The Reasonable Person
Reasonable foreseeability Reasonable person is a prudent person exercising care Conduct falling between average and perfect Objective test “Would reasonable person have foreseen risk of loss?” Sufficient if not far-fetched (even if not probable) Broad concept usually satisfied Copyright © 2004 McGraw-Hill Ryerson Limited

Forseeability: The Reasonable Person
Purpose of reasonable foreseeability: fairness Unfair to hold defendant liable for every loss Impossible to prevent unforeseeable event Unfair to let defendant hide behind own deficiencies Plaintiff entitled to expect reasonable conduct Copyright © 2004 McGraw-Hill Ryerson Limited

Negligence Defendant owes the plaintiff a duty not to injure Defendant’s actions constitute a breach of that duty Plaintiff suffers some injury as a direct result of the defendant’s actions Copyright © 2004 McGraw-Hill Ryerson Limited

Standard of Care Standard of Care The standard by which reasonableness is determined Determines how defendant with duty must act Liability possible only if breach of standard of care Copyright © 2004 McGraw-Hill Ryerson Limited

TORT LAW NEGLIGENCE TESTS Foreseeability Remoteness Loss Causation
Copyright © 2004 by McGraw-Hill Ryerson Limited. Standard of Care Copyright © 2004 McGraw-Hill Ryerson Limited 5

Res Ipsa Loquitor Res ipsa loquitor – “the thing speaks for itself” Plaintiff must show: Cause of injury exclusively in the care and control of the defendant at the time of the injury Circumstances surrounding the accident unusual – constitute events that do not ordinarily occur if proper care had been taken by defendant If so burden shifts to Defendant to prove otherwise Copyright © 2004 McGraw-Hill Ryerson Limited

Professionals Rule – professional must exercise standard of care that the profession normally imposes on its members Similar professional, with similar qualifications in similar circumstances Test: 2 Part Show: Reliance (most important) Relationship Patient-doctor; client-lawyer Competence not success Copyright © 2004 McGraw-Hill Ryerson Limited

Professionals Fiduciary Duty – relationship of utmost good faith “Special duty” imposed on a person who stands in a position of trust to another (even if services are free) Must put interests of client before those of his own Take care services preferred in accordance with accepted standards for the profession Extends to carelessness in carrying out duties Extends to statements made and information provided to clients Can be liability without any negligence E.g. Conflict of interest situation Copyright © 2004 McGraw-Hill Ryerson Limited

Professionals Negligent Misrepresentation - 3 part test Whether harm was foreseeable Whether there was a relationship between the parties of sufficient proximity No reason to limit the duty based on public policy Copyright © 2004 McGraw-Hill Ryerson Limited

Professionals Duty Owed No allowances for inexperience Factors considered Qualifications – expert or general practioner Locality – rural vs. urban Urgency – emergency versus planned surgery Copyright © 2004 McGraw-Hill Ryerson Limited

Occupier’s Liability Trespasser No lawful permission Low duty of care – duty of common humanity Traps or pits Care must be taken to avoid injury to children for “attractive nuisances” E.g. swimming pools Copyright © 2004 McGraw-Hill Ryerson Limited

Occupier’s Liability Circumstances considered Common sense Character of trespasser Child versus adult Nature of place Warehouse versus house Knowledge defendant has or ought to have More likely the more precautions required Copyright © 2004 McGraw-Hill Ryerson Limited

Occupier’s Liability Licensee – enter with express or implied permission but no benefit to occupier For benefit of licensee Common duty of care Protect from concealed dangers Copyright © 2004 McGraw-Hill Ryerson Limited

Occupiers Liability Invitee – enters by invitation and benefit to occupier Customers of a store Invitations to the public at large Highest duty of care Reasonable person – warn or protect from unusual dangers or hazards of which occupier is aware or ought to be aware of Statute – removed distinction between common law licensee and invitee – both now treated under common law duty of invitee Copyright © 2004 McGraw-Hill Ryerson Limited

Copyright © 2004 by McGraw-Hill Ryerson Limited.
TORT LAW OCCUPIER’S LIABILITY DUTY OF CARE Standard ‘A’ Trespasser Licensee Standard ‘B’ OCCUPIER OF LAND Copyright © 2004 by McGraw-Hill Ryerson Limited. Invitee Standard ‘C’ Specific Statutory Standard Copyright © 2004 McGraw-Hill Ryerson Limited 6

Manufacturer’s Liability
Contract law – only purchaser could sue for defective product Tort law – now manufacturers owe a duty to all who may use their products Copyright © 2004 McGraw-Hill Ryerson Limited

Nuisance Nuisance – interference with the enjoyment of real property, or in some cases, material interference with a person’s physical comfort Forms of nuisance Physical damage Fumes, containments Impaired enjoyment Noise, stench from a farm Non-intrusive Adult bookstore, casino, prostitutes in the neighborhood Copyright © 2004 McGraw-Hill Ryerson Limited

Nuisance Factors Circumstances surrounding nuisance Nature of neighborhood Industrial versus residential Degree of interference Time and day of interference Intensity and duration of interference Social utility of interference Defendant’s motivation Courts must balance public and private interests Copyright © 2004 McGraw-Hill Ryerson Limited

Nuisance Remedies Injunction – equitable remedy of the court that orders the person or persons named to refrain from doing certain acts Normally interests of community come before those of individual Copyright © 2004 McGraw-Hill Ryerson Limited

General Tort Defenses Contributory Negligence Carelessness by plaintiff that contributed to loss Most common and important defense Plaintiff author of own misfortune Copyright © 2004 McGraw-Hill Ryerson Limited

General Tort Defenses Forms of contributory negligence Unreasonably enters into dangerous situation Unreasonably contributes to creation of accident Speeding Unreasonably contributes to extent of injury Not wearing seatbelt, not following directions of doctor Effect of defense Responsibility apportioned on a percentage basis Copyright © 2004 McGraw-Hill Ryerson Limited

General Tort Defenses Volenti non fit injuria – voluntary assumption of the risk of injury Plaintiff voluntary assumed the risk of the injury that occurred Act of God – an unanticipated event that prevents the performance of a contract or causes damage to property Copyright © 2004 McGraw-Hill Ryerson Limited

General Tort Defenses Waiver – an express or implied renunciation of a right or claim Plaintiff signed off Usually in writing and must cover injury contemplated by the parties at the time Will not alleviate certain types of negligence Copyright © 2004 McGraw-Hill Ryerson Limited

General Tort Defenses Release – a promise not to sue or press a claim, or a discharge of a person from any further responsibility to act. Requires some form of consideration Statute of Limitations – statutory time period in which an action must be bought Common law – doctrine of laches Copyright © 2004 McGraw-Hill Ryerson Limited

Tort Remedies Purpose – place injured party in same position that the party would be in had the tort not been committed Damages Most common remedy Compensation for loss, loss of wages, property damage, physical injury Copyright © 2004 McGraw-Hill Ryerson Limited

Tort Remedies Special Damages – specific costs of losses that can be calculated Loss of income, loss of property, hospital expenses, costs of repairs General Damages – damages more difficult to determine Estimated by the court Pain and suffering Copyright © 2004 McGraw-Hill Ryerson Limited

Tort Remedies Nominal Damages – no monetary loss but someone's rights have been interfered with No real injury Trespass but no damage to property Usually $1 and legal costs Punitive damages – used to set an example or discourage repetition of the act Contrary to the concept of monetary compensation – purpose is to punish Copyright © 2004 McGraw-Hill Ryerson Limited

Tort Remedies Contempt of Court – refusal to obey a judge’s order Punishable by jail or a fine Order of Replevin – court action that permits a person to recover goods unlawfully taken by another Copyright © 2004 McGraw-Hill Ryerson Limited

Summary Torts – injury caused by one person to another or another’s property when a duty exists not to injure Defendant will be liable in negligence if a duty is owed, duty is breached, standard of care is breached and damages occur Defendant may have defenses Copyright © 2004 McGraw-Hill Ryerson Limited

Copyright © 2004 McGraw-Hill Ryerson Limited

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