LAW 122 Lecture 2: Negligence
17 May 2018
School
Department
Course
Professor
Negligence (Ch. 6)
Definition:
The careless causing of harm
•
A carelessness tort
•
Most common tort
•
Very broad cause of action, used to resolve wide variety of claims
Including negative negligence
○
•
Purpose:
To compensate for harmful risky actions conducted carelessly, but to allow for
careful risk-taking
•
Tension between providing compensation and encouraging socially useful
activities
•
Elements of negligence
Duty of care
Why should the defendant care?
Needs to be aware about neighbors, not just the purchaser of the
defective item but however anyone who comes into contact of that
product
§
○
•
Standard of care
How should the defendant care?
Easiest of the three elements to show
§
○
•
Causation
Who should care – who caused the harm?
○
•
Reasonable Foreseeability
Objective test
Would reasonable person have foreseen risk that harm would occur?
Slip and fall on icy sidewalk in front of store
§
In Florida?
§
○
Not Subjective
opinion of either plaintiff or defendant does not matier
Reasonable person test□
§
○
Not Perfect – Average
P entitled to expect reasonable conduct
§
○
•
Proximity
SECOND PART OF THE TEST
Proximity means close and direct connection
Physical
Contractor and tools
If a contractor drops a hammer on someone's head, they are
responsible because they need to be aware of their tools
□
§
○
Social Relationship
parent and child
§
○
Commercial Relationship
Bar and drunk driver
§
Manufacturer and consumer (Donoghue)
§
○
•
Asks should there be a general duty for the relationship? •
Standard of care
Second element
how defendant with duty must act
○
•
Reasonable person test
how would a reasonable person act in this situation?
○
Laidlaw JA, 1955 – p143
○
objective test
Subjective conduct of defendant does not matter
§
Reasonable person takes precautions against reasonable
foreseeable (ie not fanciful) risks, even if unlikely to occur
§
Average, not perfect – P entitled to expect reasonable conduct
§
So no hindsight application either
§
Assessed on date of alleged breach
§
○
•
Learned Hand test
Determination of “reasonable” standard based on risk management •
P – probability of harm if risk occurs •
L – magnitude of loss if risk occurs •
R – cost of risk management •
S – actual money spent on risk management •
It is reasonable to spend R, as long as R ≤ P x L •
It is reasonable NOT to spend R, if R > P x L •
Courts compare S to R and decide •
Standard of care for professionals
Standard is higher than a reasonable person in general
must act as reasonable professional
no allowance for inexperience
§
no allowance for exaggerated credentials
§
○
Standard may be higher still for specialist or expert
must act as a reasonable expert would act
§
○
•
Limits to professional standard
Remember hindsight cannot be used
Medication side-effects
○
•
“Errors of judgment” are different than carelessness
Choice of medical procedure – would another incorrectly pick?
○
•
Compliance with approved or statutory standard
Compliance re complex or technical matter: no breach per Ter Neuzen v
Korn, artificial insemination with HIV infected sperm (SCC)
○
Could a layperson figure it out e.g. child dies from tonsillectomy,
surgeons not counting sponges: then breach per Anderson v Chasney
(SCC)
○
•
Standard of care for products
Product Liability
Harm caused by manufactured products
○
Parties don’t have to be linked by contract eg manufacturer liable to
user/consumer of product, not just buyer (Donoghue)
○
Strict Liability in the US
manufacturer liable for any defects
○
•
Negligence in Canada
manufacturer liable only for careless defects
○
Policy concerns explain why haven’t followed US approach – cost and
litigation in Canada we don’t want it so expensive and frequent
○
•
Causation
Third Element: Who caused the harm?
P must prove D’s carelessness was a cause, not the only cause
○
•
The but-for test
Would the plaintiff still have suffered harm, “but for” the defendant?
○
What happens if you take the defendant “out of the picture”?
if nothing changes, plaintiff still suffers:
defendant did NOT cause loss□
§
if plaintiff does not suffer then:
defendant IS cause of loss □
§
○
•
Remoteness
No liability if loss was too remote
reasonable foreseeability of harm in specific case
○
Unlike proximity which is about general relationships
○
foreseeability of harm that occurred in the end – sufficient if not too far
fetched
○
not the chain of events that led to harm
Boy burnt by gas lamp case – turned on type of injury: foreseeable
that things that burn may burn people (Case Brief 6.4, p152)
§
○
•
Makes sense to have this safety valve to liability when wide imposition of duty
of care
•
Exceptions:
You take your victims as you find them, it does not matter what excuses
they make
Thin skull
§
Thin wallet
§
Intervening Act
§
Read in book
§
○
•
Contributory negligence
Loss is caused partly by defendant and partly by plaintiff’s own carelessness
Same tort elements, looking at plaintiff’s conduct •
Proportional liability:
reduces D’s liability to P
§
Apportionment concept
§
•
damages reduced to reflect plaintiff’s contribution
Drunk driver
§
Failing to wear a seatbelt (Tracy Morgan v Walmart – pleadings)
§
Riding a bicycle without a helmet
§
•
•
Voluntary Assumptions of Risk
Plaintiff freely accepted both physical and legal risk of injury (gave up right to
sue)
Have to show Plaintiff agreed to both •
complete defense (not proportional) •
courts interpret this narrowly because of harsh result – high bar to pass •
•
Risk management
Disclaimers and waivers •
•
Occupier's Liability (Ch5 p114)
Duty of occupiers of premises to protect visitors from harm
Occupier = anybody who is exercising substantial control over premises
(need not be owner)
•
Visitor = anyone who enter•
Premises widely defined •
•
Common Law rules
Complex categories of visitors, different duties to each –
confusing
•
•
Evolved from common law to duty of common humanity, striking balance
between parties
Trespass rules changed, and some classes of visitors treated same •
•
Later, Ontario adopted statutory rules re: occupier’s liability •
Occupier’s Liability Act (Ontario)
KCommon Law Duty of Care superseded [s. 2] •
Occupier - any person having possession of or control over and
responsibility for premises or activities on premises
•
Premises – broadly defined – includes land, structures, vehicles etc •
•
Occupiers’ Duty of Care [s. 3]
to take reasonable care - to see that persons entering on the premises,
and the property brought on the premises by those persons are
reasonably safe while on the premises.
•
Duty extends re both condition of, and activities on, premises •
Factors: potential danger; occupier’s cost to fix; visit purpose; nature of
premises
•
•
Limiting occupier’s liability:
Warnings: Permitted IF occupier takes reasonable steps to bring
limitation to attention of the person(s) to whom the duty is owed [Act ss.
3 (3) and 5 (3)]
•
•
Voluntary Assumption of Risk defence [s. 4]:
If risks willingly assumed by persons entering the premises under the
circumstances described in s. 4, and provided there was no deliberate
intent to do harm or act with reckless disregard for the presence of the
person
•
Some trespassers deemed to have assumed all risks •
•
Independent contractors – Occupier not liable for their negligence provided
Occupier acted “reasonably” in entrusting the work to the independent
contractor
•
Day 2
Wednesday, May 16, 2018
11:10 AM
Negligence (Ch. 6)
Definition:
The careless causing of harm•
A carelessness tort •
Most common tort•
Very broad cause of action, used to resolve wide variety of claims
Including negative negligence
○
•
Purpose:
To compensate for harmful risky actions conducted carelessly, but to allow for
careful risk-taking
•
Tension between providing compensation and encouraging socially useful
activities
•
Elements of negligence
Duty of care
Why should the defendant care?
Needs to be aware about neighbors, not just the purchaser of the
defective item but however anyone who comes into contact of that
product
§
○
•
Standard of care
How should the defendant care?
Easiest of the three elements to show
§
○
•
Causation
Who should care – who caused the harm?
○
•
Reasonable Foreseeability
Objective test
Would reasonable person have foreseen risk that harm would occur?
Slip and fall on icy sidewalk in front of store
§
In Florida?
§
○
Not Subjective
opinion of either plaintiff or defendant does not matier
Reasonable person test
□
§
○
Not Perfect – Average
P entitled to expect reasonable conduct
§
○
•
Proximity
SECOND PART OF THE TEST
Proximity means close and direct connection
Physical
Contractor and tools
If a contractor drops a hammer on someone's head, they are
responsible because they need to be aware of their tools
□
§
○
Social Relationship
parent and child
§
○
Commercial Relationship
Bar and drunk driver
§
Manufacturer and consumer (Donoghue)
§
○
•
Asks should there be a general duty for the relationship?
•
Standard of care
Second element
how defendant with duty must act
○
•
Reasonable person test
how would a reasonable person act in this situation?
○
Laidlaw JA, 1955 – p143
○
objective test
Subjective conduct of defendant does not matter
§
Reasonable person takes precautions against reasonable
foreseeable (ie not fanciful) risks, even if unlikely to occur
§
Average, not perfect – P entitled to expect reasonable conduct
§
So no hindsight application either
§
Assessed on date of alleged breach
§
○
•
Learned Hand test
Determination of “reasonable” standard based on risk management
•
P – probability of harm if risk occurs
•
L – magnitude of loss if risk occurs
•
R – cost of risk management
•
S – actual money spent on risk management
•
It is reasonable to spend R, as long as R ≤ P x L •
It is reasonable NOT to spend R, if R > P x L •
Courts compare S to R and decide •
Standard of care for professionals
Standard is higher than a reasonable person in general
must act as reasonable professional
no allowance for inexperience
§
no allowance for exaggerated credentials
§
○
Standard may be higher still for specialist or expert
must act as a reasonable expert would act
§
○
•
Limits to professional standard
Remember hindsight cannot be used
Medication side-effects
○
•
“Errors of judgment” are different than carelessness
Choice of medical procedure – would another incorrectly pick?
○
•
Compliance with approved or statutory standard
Compliance re complex or technical matter: no breach per Ter Neuzen v
Korn, artificial insemination with HIV infected sperm (SCC)
○
Could a layperson figure it out e.g. child dies from tonsillectomy,
surgeons not counting sponges: then breach per Anderson v Chasney
(SCC)
○
•
Standard of care for products
Product Liability
Harm caused by manufactured products
○
Parties don’t have to be linked by contract eg manufacturer liable to
user/consumer of product, not just buyer (Donoghue)
○
Strict Liability in the US
manufacturer liable for any defects
○
•
Negligence in Canada
manufacturer liable only for careless defects
○
Policy concerns explain why haven’t followed US approach – cost and
litigation in Canada we don’t want it so expensive and frequent
○
•
Causation
Third Element: Who caused the harm?
P must prove D’s carelessness was a cause, not the only cause
○
•
The but-for test
Would the plaintiff still have suffered harm, “but for” the defendant?
○
What happens if you take the defendant “out of the picture”?
if nothing changes, plaintiff still suffers:
defendant did NOT cause loss□
§
if plaintiff does not suffer then:
defendant IS cause of loss □
§
○
•
Remoteness
No liability if loss was too remote
reasonable foreseeability of harm in specific case
○
Unlike proximity which is about general relationships
○
foreseeability of harm that occurred in the end – sufficient if not too far
fetched
○
not the chain of events that led to harm
Boy burnt by gas lamp case – turned on type of injury: foreseeable
that things that burn may burn people (Case Brief 6.4, p152)
§
○
•
Makes sense to have this safety valve to liability when wide imposition of duty
of care
•
Exceptions:
You take your victims as you find them, it does not matter what excuses
they make
Thin skull
§
Thin wallet
§
Intervening Act
§
Read in book
§
○
•
Contributory negligence
Loss is caused partly by defendant and partly by plaintiff’s own carelessness
Same tort elements, looking at plaintiff’s conduct •
Proportional liability:
reduces D’s liability to P
§
Apportionment concept
§
•
damages reduced to reflect plaintiff’s contribution
Drunk driver
§
Failing to wear a seatbelt (Tracy Morgan v Walmart – pleadings)
§
Riding a bicycle without a helmet
§
•
•
Voluntary Assumptions of Risk
Plaintiff freely accepted both physical and legal risk of injury (gave up right to
sue)
Have to show Plaintiff agreed to both •
complete defense (not proportional) •
courts interpret this narrowly because of harsh result – high bar to pass •
•
Risk management
Disclaimers and waivers •
•
Occupier's Liability (Ch5 p114)
Duty of occupiers of premises to protect visitors from harm
Occupier = anybody who is exercising substantial control over premises
(need not be owner)
•
Visitor = anyone who enter•
Premises widely defined •
•
Common Law rules
Complex categories of visitors, different duties to each –
confusing
•
•
Evolved from common law to duty of common humanity, striking balance
between parties
Trespass rules changed, and some classes of visitors treated same •
•
Later, Ontario adopted statutory rules re: occupier’s liability •
Occupier’s Liability Act (Ontario)
KCommon Law Duty of Care superseded [s. 2] •
Occupier - any person having possession of or control over and
responsibility for premises or activities on premises
•
Premises – broadly defined – includes land, structures, vehicles etc •
•
Occupiers’ Duty of Care [s. 3]
to take reasonable care - to see that persons entering on the premises,
and the property brought on the premises by those persons are
reasonably safe while on the premises.
•
Duty extends re both condition of, and activities on, premises •
Factors: potential danger; occupier’s cost to fix; visit purpose; nature of
premises
•
•
Limiting occupier’s liability:
Warnings: Permitted IF occupier takes reasonable steps to bring
limitation to attention of the person(s) to whom the duty is owed [Act ss.
3 (3) and 5 (3)]
•
•
Voluntary Assumption of Risk defence [s. 4]:
If risks willingly assumed by persons entering the premises under the
circumstances described in s. 4, and provided there was no deliberate
intent to do harm or act with reckless disregard for the presence of the
person
•
Some trespassers deemed to have assumed all risks •
•
Independent contractors – Occupier not liable for their negligence provided
Occupier acted “reasonably” in entrusting the work to the independent
contractor
•
Day 2
Wednesday, May 16, 2018 11:10 AM
Document Summary
Very broad cause of action, used to resolve wide variety of claims. To compensate for harmful risky actions conducted carelessly, but to allow for careful risk-taking. Tension between providing compensation and encouraging socially useful activities. Needs to be aware about neighbors, not just the purchaser of the defective item but however anyone who comes into contact of that product. Slip and fall on icy sidewalk in front of store. Not subjective opinion of either plaintiff or defendant does not matier opinion of either plaintiff or defendant does not matier. If a contractor drops a hammer on someone"s head, they are responsible because they need to be aware of their tools. Second element how defendant with duty must act. Reasonable person takes precautions against reasonable foreseeable (ie not fanciful) risks, even if unlikely to occur. Average, not perfect p entitled to expect reasonable conduct. Determination of reasonable standard based on risk management. P probability of harm if risk occurs.
