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LAW 122 (625)
Chapter 6

Chapter 6 - Negligence (LAW 122)

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Law and Business
LAW 122
Andre Serero

- Tort of negligence determines whether the defendant can be held liable for carelessly causing the plaintiff to suffer a loss or injury - Eg; manufacturer may produce a beverage that makes a consumer sick - tort of negligence requires the plaintiff to prove that the defendant - owed a duty of care – required to act carefully toward the plaintiff - breached the standard of care by acting carelessly - caused harm to the plaintiff - defendant may be able to avoid liability by proving a defense. 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 behavior -law of negligence contains a tension between two important values. - on one hand, court wants a wide scope of liability in order to compensate people who suffer injuries. On the other hand the courts recognize that liability sometimes hurts society. Duty of Care - exists if the defendant is required to use reasonable care to avoid injuring the plaintiff -without duty of care there cant be liability Test for Determining the Existence of duty of care -duty of care can be recognized as long as certain conditions are met, courts have developed a unique test for the creation of a duty of care; - judge will first ask whether or not the duty of care question has already been answered -if duty of care question hasn’t been answered for the case, then must ask 3 questions IN ORDER to determine if a duty of care should exist or not. - 3 questions are; - was it reasonably foreseeable that the plaintiff could be injured by the defendants carelessness? -did the parties share a relationship of sufficient proximity? -if an injury was reasonably foreseeable, and if the parties shared a relationship of sufficient proximity, then a duty of care presumably will exist. Judge might still deny a duty of care on the basis of policy reasons. Reasonable Foreseeability - if a reasonable person in the defendants position would have recognized that possibility Proximity -duty of care wont be recognized unless there was also a relationship of proximity - proximity – there must somehow be a close and direct connection between the parties - court will look at the issue of proximity from a variety of perspectives; - whether the parties shared a social relationship – eg;p133 - whether the parties shared a commercial relationship – eg;p133 -whether there was a direct casual connection between the defendants carelessness and the plaintiffs injury – eg;p133 -whether the plaintiff relied on the fact that the defendant represented that it would act in a certain way – eg;p133 Duty of Care for Professional Statements -in the business context, the best example concerns negligent statements -special rules are needed because careless statements are different from careless actions in 3 ways - because the risks associated with statements are often hidden, the need for care is usually less apparent. People tend to speak loosely, especially in social settings. -READ PG. 134 for other 2 reasons - should be very careful about providing information and advice -if you don’t wish to be held liable for your statements, you should cle
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