LAW 122 Lecture Notes - Independent Contractor, No Liability, Reasonable Person
Week 4
Law 122
Oupiers’ liailit
• Definitions
o oupier
• Duty of care
o standard of care is what is reasonably expected from the owner of the premises
• the dut of are…applies hether the dager is aused the oditio of the preises or a activity
arried o the preises; [ss. ]
• The oupier a restrit, odif, or elude the oupier’s dut, proided the oupier takes reasoale
steps to bring any restriction, exclusion, or other modification to the attention of the person(s) to whom the
duty is owed. [ss.3(3) and 5 (3)]
• Voluntary assumption of risk [s.4]
o The occupier may defend any claim of liability on the basis of 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
• Trespassed are deemed to have assumed all risks
• Those entering for recreational activity under certain circumstances are deemed to have assumed all risks.
[s.(3)]
• Liability for independent contracters [s.6]
o The occupier is not liable for the negligence of an independent contractor employed by the
oupier, proided the oupier ated reasoal i etrustig the ork to the idepedet
contractor
o Demnity clause
▪ even if occupier is responsible, independent is held liable
• preservation of higher obligations [s.9]
• [s.9] nothing in the act (including section 2) relieves an occupier of premises from a higher liability or duty
arising from any other rule of law or enactment imposing special liability or standards of care on particular
classes of persons
• What do you think?
o Flentje v. Nichols, 2006 (ON SC)
o Nichols owned a bar and had a personal responsibility for clearing the ice and snow outside
o Flentje fell outside after slipping on the ice
▪ Sued for damages
o Nichols said he was removing ice and snow and undertaking it
find more resources at oneclass.com
find more resources at oneclass.com
▪ Sufficient reasonable standard of care
o Nichols has a duty of care to his patrons
o Nichols (occupier) breached his duty of care to Flentje (ijured part uder s. of the Oupiers’
Liability Act, and damages were awarded
o As the occupier of the premises, Nichols had a duty of care to his patrons, including a reasonable
system of snow and ice removal in the parking lot
o Although Nichols was normally diligent, his system of maintenance was haphazard, and on the night
of the accident the ice had not been properly removed or salted
▪ In particular, there was no regular salting under the drip line, which was prone to ice buildup
• What do you think?
o Pharand v. New Hanmer Hotel Ltd., 1998 (ON CJ)
o The hotel serves alcohol, has to provide stairs that are safe for persons who consume alcohol
o It must provide entrances and exits which are reasonably safe to be used by persons who have been
consuming alcohol responsibly
o The evidence would have to establish that the plaintiff had drunk excessively before it would be
relevant
o The plaintiff (pharand) was awarded general damages of $10,000
Negligence
• To compensate for harmful risky actions conducted carelessly, but to allow for careful risk-taking
• Unintentional tort
• Basic elements
o Defendant owed plaintiff a duty of care
o Defendant breached that duty
o Plaintiff suffered a loss
o Breah of dut defedat as proiate ause of plaitiff’s loss
• Negating any element will be a complete defence to a claim of negligence
• Professional negligence
o Emergency surgery
o Even though you consented to the surgery, there must be a standard met in your surgery and your care
• Duty of care
o Was the harm to the plaintiff reasonably foreseeable by the defendant?
▪ Should the defendant care about the plaintiff?
o Are they proximate (close)?
▪ Physical proximity
find more resources at oneclass.com
find more resources at oneclass.com
▪ Social proximity
• Parent and child
▪ Commercial promity
• Bar and drunk driver
• Manufacturer and consumer
• Donoghue v. Stevenson
o Woman was drinking a beer
o There was a slug in her beer
o Became ill
o Sued manufacturer of the beer
▪ Do’t hae to hae a diret otratual relatioship to hae liailit
o Obvious situations
▪ Parent-child
▪ Doctor-patient
▪ Lawyer-client
▪ Teacher-student
• If there was a fire, is it prof’s dut to protet studets?
• No, prof’s atiities are ot ausig the fire, or a har for that atter
o Is there a public policy reason to deny?
▪ Will it:
• Open the floodgates for litigation
• Lead to broad market loss
• Interfere with political decisions
• Interfere with professional regulatory bodies
• Hurt a valuable type of relationship
o Mother and unborn child
• Duty owed by professionals
o Professionals owe a tort of duty of care to the owner even if there is no contractual relationship with the
owner
▪ When an engineer is hired by the architect
• A consultant who prepares specifications owes a duty of care to bidders
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
If there was a fire, is it prof"s dut(cid:455) to prote(cid:272)t stude(cid:374)ts: no, prof"s a(cid:272)ti(cid:448)ities are (cid:374)ot (cid:272)ausi(cid:374)g the fire, or a(cid:374)(cid:455) har(cid:373) for that (cid:373)atter. Is there a public policy reason to deny: will it, open the floodgates for litigation. Learned hand test: deter(cid:373)i(cid:374)atio(cid:374) of (cid:862)reaso(cid:374)a(cid:271)le(cid:863) sta(cid:374)dard (cid:271)ased o(cid:374) risk (cid:373)a(cid:374)age(cid:373)e(cid:374)t, p. L: s, probability of harm if risk occurs, magnitude of loss if risk occurs, actual money spent on risk management. It is reasonable to spend r, as long as r p xl. 140 &141: case study: question 2, facts. If nothing changes, plaintiff still suffers: defendant did not cause loss. If plaintiff does not suffer then: defendant is cause of loss, not beyond a reasonable doubt standard, civil doubt standard, professional negligence harm, patient gives permission to surgeon to operate on left ear. While patient is under anesthetic, surgeon decides to operate on right ear. If plaintiff was unusually vulnerable to injury: thin wallet.
