Law 122 Chapter 6
• Tort of negligence: Determines whether the defendant can be held liable for
carelessly causing injury to the plaintiff. The tort of negligence requires the
plaintiff to prove that the defendant:
Owed a duty of care, in that it was required to act carefully toward the
Breached the standard of care by acting carelessly
Caused harm to the plaintiff.
Even if the plaintiff shows those three elements, the defendant may be able to avoid
liability by proving a defence. 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 behavior.
Duty of Care
• Duty of care: Exists if the defendant is required to use reasonable care to avoid
injuring the plaintiff.
• The questions in order to determine whether or not a duty of care should
Was it reasonably foreseeable that the plaintiff could be injured by the
Did the parties share a relationship of sufficient proximity?
If an injury was easily foreseeable, and if the parties shared a relationship of
sufficient proximity, then a duty of care presumably will exist. The judge
might still deny a duty of care, however on the basis of policy reasons.
• Reasonable Foreseeability
This issue is not whether the defendant personally knew that its activities
might injure the plaintiff. It is whether a reasonable person in the defendants
position would have recognized that possibility.
There must be a close and direct connection between the parties.
The court will look at the issue of proximity from a variety of perspectives.
Depending on circumstances it may ask:
Whether the parties shared a social relationship (ex: a parent is
required to look after a child but a stranger is not).
Whether the parties shared a commercial relationship ( ex: a tavern
may be responsible if a drunken customer later causes a traffic
accident, but the host of a house party may not be responsible if a
drunken guest injures a pedestrian on the way home).
Whether there was a direct casual connection between the defendants
carelessness and the plaintiff’s injury ( for example, a motorist who
rams into a bridge will be liable for the damage of to the bridge, but prob not for the profits that were lost when customers could not reach
a store that was located on the other side of the bridge).
Whether the plaintiff relied on the fact that the defendant represented
that it would act in a certain way ( for example a railway company
have a duty to continue operating a safety gate that it voluntarily
installed and that pedestrians have come to rely upon).
Proximity deals with relationships that exist between the parties, whereas
policy is concerned with the effect that a duty of care would have on the legal
system and on society generally.
For example, a court may ask whether the recognition of a duty of care would:
“open the floodgates” by encouraging a very large number of people to
swamp the courts with lawsuits (that is one reason why the courts are
reluctant to recognize a duty of care for negligent statements).
Interference with political decisions (that is why a government may be
able to escape responsibility for decididing that it could not afford to
frequently check a stretch of road for fallen trees)
Hurt a valuable type of relationship (that is one reason why a mother
does not owe a duty of care to her unborn child).
Breach of the Standard of Care
• The first element of the cause of action in negligence requires the plaintiff to
prove that the defendant owed a duty of care. The second element requires that
the plaintiff prove that the defendant breached the standard of care.
• Standard of care: Tells the defendant how it should act.
• The standard of care is breached when the defendant acts less carefully.
• The reasonable person test requires the defendant to act in the same way that a
reasonable person would act in similar circumstances.
• Some important factors in a reasonable person test:
Reasonable person test is said to be objective. It does not make allowance for
the defendants subjective, or personal, characteristics.
The reasonable person takes precautions against reasonably forseeable risks.
The reasonable person is influenced by both the likelihood of harm and the
potential severity of harm. Greater care is required if the potentional for harm
is 90 percent.
The reasonable person is more likely to adopt affordable precautions. Ex a taxi
driver that regularily carries young children should pay 50 dollars for tamper
prop lock doors.
The reasonable person may act