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Lecture 6

LAW 122 Lecture Notes - Lecture 6: Liability Insurance, Product Liability, Contributory Negligence


Department
Law and Business
Course Code
LAW 122
Professor
Avi Weisman
Lecture
6

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LAW122 October 1, 2015
1
Chapter Six Negligence
Learning Objectives
1. Describe the nature and function of the concept of a duty of care.
2. Explain the term "reasonable foreseeability'' and explain the ways in which that concept is relevant to
the tort of negligence.
3. Explain why the concept of proximity is important to the duty of care, especially in the context of
claims for negligent statements.
4. Explain the role of policy under the duty of care concept, especially as it applies to the regulation of
professions.
5. Describe the reasonable person and explain how that person is relevant to the standard of care.
1. O utline the special considerations that arise when a court decides whether a professional has
acted carelessly.
6. O utline the nature and function of the but-for-test.
7. Briefly describe the defence of contributory negligence.
8. Explain why and how the courts have limited the defence of voluntary assumption of risk.
9. O utline the scope of the defence of illegality.
negligence determines whether the defendant can be held liable for carelessly causing injury to the
plaintiff. Requires the plaintiff to prove that the defendant:
- owed a duty of care, in that they were required to act carefully toward the plaintiff
- breached the standard of care by acting carelessly
- caused harm to the plaintiff
the defendant may show that the plaintiff:
- was guilty of contributory negligence that caused or contributed to the injury
- voluntarily assumed the risk of being injured by the defendant
- was injured while engaged in some form of illegal behaviour
professional negligence negligence that is committed by a professional person, such as a banker, lawyer,
or accountant
- refers to the special considerations that shape the general cause of action in negligence when it is applied to
professional people
Negligence = tricky, b/c courts want a wide scope of liability to compensate people who suffer injuries, but
the liability sometime hurts society (ex. business fully compensating every person whom it injured = forced
out of business)
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LAW122 October 1, 2015
2
- desire to encourage socially useful activities vs. providing compensation
duty of care exists if the defendant is required to use reasonable care to avoid injuring the plaintiff (w/out
duty of care = no liability)
- required in an action in negligence
- how does a judge decide when to impose this? traditionally, it was restricted to certain relationships
(surgeon and patient, lawyer and client)
- now, duty of care is recognized any time certain conditions are met
TEST:
1) judge first asks whether or not the duty of care question has already been answered for the particular
type of case that is being litigated (ex. bottler of beverages owes duty to care to consumers)
2) if not asked, then:
1) was it reasonable foreseeable that the plaintiff could be injured by defendants carelessness?
2) did the parties share a relationship of sufficient proximity?
3) if an injury was reasonably foreseeable, and if they shared a sufficient proximity relationship, then a
duty of care will exist.
Reasonable foreseeability this test is objective! whether a reasonable person in the defendants
position would have recognized that possibility of injuring the plaintiff
proximity close and direct connection between plaintiff and defendant
- physical proximity (ex. defendant carelessly swings baseball bat while standing next to plaintiff)
- social relationship ex. parent required to look after a child, stranger is not
- direct causal connection ex. bar responsible for drunken customer who causes a car accident, but a
house party host is not
- whether the plaintiff relied on the fact that the defendant represented that they would act in a certain way
duty of care for professional statements
- negligent statements cause economic loss
- as a business person, be careful about providing info and advice
- if you do not want to be liable for your statements, clearly disclaim responsibility
- be careful about relying on statements made by others
- Law of negligence strike a balance b/w the need to compensate people who are hurt by negligent
statements and the need to protect businesses from liability
- careless statements are difference from careless actions:
- physical negligence are obvious, whereas negligence statements are often hidden and less apparent
- words are more volatile than deeds; risk created by a careless action is limited in time and space.
physical negligence can be stopped once the first accident occur, but negligence statements have
liability in an indeterminate amount for an indeterminate time to an indeterminate class
- careless actions result in property damage or personal injuries, but careless statements result in pure
economic losses
Policy concerned with the effect that a duty of care would have on the legal system and on society
generally
typical concerns:
- open the floodgates, thus encouraging a large number of people to swamp the courts with lawsuits
- interfere with political decisions
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