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Law 122 - Chapter 6.docx

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Ryerson University
Law and Business
LAW 122
Gil Lan

Chapter 6 November-10-11 3:34 PM The Tort of Negligence  Determines whether the defendant can be held liable for carelessly causing injury to the plaintiff  Must Prove:  Owed a duty of care  Breached standard of care  Caused harm to plaintiff Professional Negligence: is simply negligence committed by a professional; such as banker, lawyer, or accountant Duty of Care:  Exists if the defendant is required to use reasonable care to avoid injuring the plaintiff  Obligation to use care to avoid harm to plaintiff  Reasonable Foresee-ability:  Weather if a reasonable person in the defendant's position would have recognized the possibility  EX: delivery of envelope, for a regular person, they would not assume that if the envelope was delivered late, it would cause them 1000000$  Proximity:  There must somehow be a close and direct connection between the parties Types of Connections:  physical (eg hit by swung baseball bat)  social (eg bond between parent and child)  commercial (eg alcohol sold to driver)  causal (eg loss occurred without other factors)  reliance (eg reasonable use of financial advice)  In business context, the best example concerns negligent statements  acts vs words  need for precaution less clear with words  “words are more volatile than deeds”  Because actions happens at a specific time and space  But words can cause damage in an indeterminate amount for an indeterminate time to an indeterminate class  words more likely to cause pure economic loss  EX: taking professional advice and making investments  liability more likely if  defendant claimed special knowledge  Such as a professional  statement communicated on serious occasion  During a business meeting, and not an informal party  statement made in response to inquiry  They were asked to make a statement  defendant received financial benefit  They got paid for it  statement of fact rather than pure opinion  They are facts or based on facts  liability less likely if  statement accompanied by disclaimer  A person would not generally rely on a statement if the speaker was unwilling to assume responsibility for Policy  focus on legal, social, political concerns  effect of policy  even if reasonable foreseeability…  even if close proximity… o duty of care rejected for external reasons  The policy would have to consider:  If the court does recognition of duty of care o Would it "open a floodgates" o Interfere with political decision o Hurt a valuable type of relationship (mother/unborn child) Breach of the Standard of Care  It tells the defendant how to act, it is breached when the defendant acts less carefully  Reasonable person test: o Requires the defendant to act in the same way that a reasonable person would act in similar circumstances o defendant cannot hide behind own deficiencies o plaintiff entitled to expect reasonable conduct o standard applied at time of alleged breach (no hindsight) reasonable person adjusts conduct to situation   reasonable foreseeability of risk o any realistic risk may require precaution  likelihood and severity of loss o more care if great danger of great harm (eg plane crash)  affordability o more care if inexpensive precaution (eg cab door locks)  social utility o less care if socially valuable activity (eg ambulance)  sudden peril doctrine o less care if emergency (eg rescue from fire) Standard of Care: Professional Negligence  professional negligence  must act as reasonable professional  no allowance for inexperience o They must live up to their training...  no allowance for exaggerated credentials o ...or claim to have received  enhanced standard for specialist or expert o More may be expected  Cannot judge the defendant's action in hindsight o Based on the information that was reasonable available at the time of the accident  Carelessness is different from error of judgment o EX: a surgeon will not be held liable for incorrectly choosing one procedure over another if a reasonable physician might have done the same  compliance with approved practice  generally evidence of reasonable care o unless approved practice itself is careless  conclusive evidence if complex technical matter  compliance with a statutory standard may also protect a defendant  But if there's a breach of statutory standard, it "may" be evidence that the standard of care was breached, but "not must" Standard of Care: Product Liability  Occur if a person is injured by a product  American approach = strict liability o manufacturer liable for any defects o Better ensure that consumers are compensated for injuries o Encourage manufacturers to develop safer products c. Require manufacturer to pay for losses that they cause as a result of selling their product
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