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Law 122 - Chapter 6 - My Notes.docx

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Law and Business
LAW 122
Theresa Miedema

Chapter 6 Negligence Negligence – the tort of negligence determines whether the defendant can be held liable for carelessly causing injury to the plaintiff The tort of negligence requires the plaintiff to prove that the defendant  Owed a duty of care, in that it was required to carefully toward the plaintiff  Breached the standard of care by active carelessly  Caused hard to the plaintiff The defend may show that the plaintiff  Was guilty of contributory negligence that caused or contributed to the injury  Voluntarily assumed the risk of being injured the defendant  Was injured while engaged in some form of illegal behavior Duty of Care – exist if the defendant is required to use reasonable care to avoid injuring the plaintiff Test for duty of care:  Has it already been answered for the particular type of case that is being litigated  If the duty of care question has not been answered then three questions must be look at o Was it reasonably foreseeable that the plaintiff could be injured by the defendants carelessness o Did the parties share a relationship of sufficient proximity o If an injury was reasonably foreseeable, and if the parties shared a relationship of sufficient proximity, then a duty of care presumably will exist. The judge might still deny a duty of care on the basis of policy reasons. Duty of Care for Professional Statements - special rules are need because careless statements are different from careless action in at least three ways.  Please tend to speak loosely , because the risk associated with the statements are often hidden  Words are more volatile than deeds - a careless action might hurt a few while a statement could hurt a lot (financial reports)  Careless actions usually result in property damage or personal injuries, however statements usually result in pure economic. The law is more reluctant to provide compensation for pure economic losses then property damage or personal injuries. 1. One should be very careful about providing information and advice 2. Second, if you do not wish to be held liable for your statements, you should clearly disclaim responsibility 3. Third, you should be careful about relying on statements made by others Proximity – there must somehow be a close and direct connection between the parties  The parties share a social relationship (ex. Parent is required to look after child)  The parties share a commercial relationship (bar and drunk drivers) o House party may not be responsible if a drunk guest injured a pedestrian  If there is a direct causal connection, between the defendant carelessness and the plaintiff’s injury (a motorist who rams into a bridge will be liable for the bridge but not the profits for lost customers)  Whether the plaintiff relied of the face that the defendant represented that it would act in a certain way (a railway company may have a duty to continue operating a safety gate that it voluntarily installed and that pedestrians have come to rely upon) Policy – is concerned with the effect that the duty of care would have on the legal system and on society in general.  “open the floodgate” by encouraging a very large number of people to swap the courts with a lawsuit  Interfere with political decision  Hurt a valuable type of relationship (that is one reason why a mother does not owe a duty of care to her unborn child) Breach of the Standard of Care 1. The plaintiff must prove that the defendant a standard of care 2. The plaintiff must prove that the defendant breached the standard of care Standard of Care – tells the defendant how it should act  The standard of care is breached when the defendant acts less carefully The Reasonable Person Test – requires the defendant to act in the same way that a reasonable person would act in similar circumstance.  Judges do lower the standard of care somewhat for children, it is enough to act like a reasonable child or similar age, intelligence, and experience  The reasonable person takes precautions against reasonable foreseeable risks  The reasonable person is influenced by both the likelihood of harm and the potential severity of harm  The reasonable person is more likely to adapt affordable precautions  The reasonable person may act in way that has great social utility (ambulance speeding)  The defendant acts in a way someone would act in similar circumstance o The sudden peril doctrine states that even a reasonable person may make a mistake under difficult circumstances The Standard of Care for Professionals The courts pay special attention to five factors when dealing with professional. 1. A professional must act as the reasonable professional would act in similar circumstance  Professional people must live up to the training that they received or claim to have received.  Even within the same profession, more may be expected of a specialist then a generalist  Special allowances are not made for beginners 2. It is unfair to judge the defendant actions in hindsight – the standard of case is therefore based on information that was reasonably available to the defendant at the time of the accident 3. A professional does not have to be perfect. As long as the defendant mistake is one that a reasonable professional might make, the standard of care is not breached 4. A p
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