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MCS 3040 (228)
Chapter 11

Chapter 11

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Marketing and Consumer Studies
MCS 3040
Joseph Radocchia

Chapter 11: The Tort of Negligence Midterm Notes The Law of Negligence What is Negligence? • The law understands carelessness as a failure to show reasonable care • Reasonable Care: The care of reasonable person would exhibit in a similar situation • Negligence is a very common tort action in the commercial world because it covers a broad range of harmful conduct ◦ For example:A negligence action can be brought by someone • Who has been injured by the dangerous driving of a delivery truck driver • Who has suffered loss by relying on poor advice provided by an accountant, lawyer, architect, or engineer • Whose furniture has been damaged in transit by a moving company • The plaintiff need not show that the defendant intended to cause the damage or that there were deliberate acts that gave rise to the damage • Instead, the tort of negligence makes the defendant liable for falling to act reasonably – for driving too fast, for giving unprofessional advice or for not taking proper care of furniture entrusted to its care • Negligence law- like tort law in general – seeks to compensate victims for their loss or injury • It provides this compensation after applying rules that determine who is liable to compensate another, on what basis, and for how much • Businesses and professionals must compensate victims of negligence, but without discouraging legitimate activity and without making the legal standards a business must meet unreasonably exacting Steps to a NegligenceAction Step 1: Does the defendant owe the plaintiff a duty of care? It yes, proceed to the next step. Step 2: Did the defendant breach the standard of care? If yes, proceed to the next step. Step 3: Did the defendants careless act (or omission) cause the plaintiffs injury? If yes, proceed to the next step Step 4: Was the injury suffered by the plaintiff too remote? If not, the plaintiff has proven negligence. • The steps in a tort action, by design, lack a certain specificity • Their purpose is to describe general standards or markers that help a court assess whether the defendant in any given case has been negligent Step 1: Does the defendant owe the plaintiff a duty of care? • Duty of Care: The responsibility owed to avoid carelessness that causes harm to others • Example: The defendant Meat will be liable to Jennifer if it owes Jennifer what is known in law as a duty of care • Adefendant owes a duty of care to anyone who might reasonably be affected by the defendants conduct known as neighbor • Neighbor: Anyone who might reasonably be affected by another conduct READ CASE DONOGHUE V. STEVENSON • As formulated by the Supreme Court of Canada, a court must first ask whether the case at bar presents a novel situation or not • If the case is comparable to an already-decided case in which a duty of care was recognized, the first stage described below can be skipped and the plaintiff can proceed directly to the second stage • If the case at issue is novel, then the court is required to assess the issue of duty in the following way: ◦ Stage 1: Is there a prima facie duty of care? ▪ Prima Facie: At first sight or on first appearances ▪ a. Is the harm that occurred a reasonably foreseeable consequence of the defendant's act? ◦ Reasonable foreseeability considers whether the defendant should objectively have anticipated that his or her act or omission would cause harm to the plaintiff ▪ If to answer to this question of reasonable foreseeability is yes, proceed to the next question ▪ b. Is there a relationship of sufficient proximity between the parties such that it would be not be unjust or unfair to impose a duty of care on the defendant? ◦ Proximity considers whether the specific circumstances of the parties' relationship are such that the defendant is under an obligation to the plaintiffs “legitimate interests” in conducting his or her affair ▪ If yes, proceed to stage 2 ◦ Stage 2: Are there residual policy considerations outside the relationship of the parties that may negative the imposition of duty of care? ▪ This stage of inquiry no longer considers the relationship between the parties but asks the question more generally, to determine whether imposing a duty in these kinds of circumstances “would be unwise” ▪ It is necessary to determine whether there are any more general considerations that ought to eliminate or reduce that duty ▪ The objective is to ensure that businesses and other defendants are not made liable to an unreasonably broad, unknowable, and indeterminate extent ▪ Considerations that eliminate or reduce a defendant's duty of care are more likely to arise in the area of pure economic loss – such as loss of profit – than in cases of physical harm Step 2: Did the defendant breach the standard of care? • In general, the defendant's conduct is judged according to the standards of behaviour that would be observed by the reasonable person in society • Reasonable Person: The standard used to judge a person's conduct in a particular situation is negligent • Where the defendant exercises specialized skills, the standard of the reasonable person described above is not applied • Professional such as doctors, accountants, engineers, and lawyers must meet a higher or specialized standard of care because the level of expertise of the average member of society is simply inadequate as a measure of competence • In specialized tasks, courts introduce the standard of the “reasonable” person with that specialized training • Where the activity or product poses a high risk, the law imposes a higher standard of care • The policy reason for this higher standard is to encourage competence and caution in light of the very serious harm that could result if the task were poorly performed Step 3: Did the defendant's careless act (or omission) cause the plaintiffs injury? • While the legal test for causation is sometimes debated, courts generally have little difficulty reaching a decision on causation by asking this simple question: ◦ Would the harm not have occurred but for the defendant's actions? • Causation: The relationship that exists between the defendant's conduct and the plaintiff's loss or injury ◦ Example: Given that Listeria was found in Meat's premises and in its some of its products, including the kind consumed by Jennifer, causation appears to be in place • Read case on pg 252 Step 4: Was the injury suffered by the plaintiff too remote? • Even if there is an obligation to take reasonable care and it was breached, how far will the legal liability of the defendant stretch? ◦ The idea is that there must be some limit on the defendant's responsibility for the consequence of his negligence ◦ Example: Jennifer was sickened by listeriosis due to bacterial contamination in the meat she consumed ◦ This injury is not too remote and is clearly a reasonably foreseeable consequence of Meat's negligence • Remoteness of Damage: The absence of a sufficiently close relationship between the defendant's action and the plaintiff's injury • Acourt need only to be satisfied that the injury the individual suffered was foreseeable • It is not necessary, to foresee the full extent of the injury of any given type • The principle that only the type of the injury must be foreseeable also finds expression in the thin skull rule • This Skull Rule: The principle that a defendant is liable for the full extent of a plaintiffs injury even where a prior vulnerability makes the harm more serious than it otherwise might be • This rule states that such a plaintiff is still entitled to recovery for the full extent of the injury ◦ Example: If Jennifer's recovery from listeriosis takes a longer period of time than would normally because she has an impaired immune system, her damages will not be reduced for that reason. Though the condition impairing the immune system is reasonably rare, Meat cannot use this fact to escape liability to fully compensate Jennifer • Jennifer should be entitled to recover for damages related to consuming Meat's contaminated product ◦ This would include the right to recover less of income during her convalescence and, if her ability to work in the future is compromised, the amount of lost future income attributable to her reduce ability to her reduced ability. These damages are recoverable because Jennifer is entitled therefore to be put in the position she would have been in had the tort not occurred • What tort law is reluctant to permit is recovery for pure economic loss • Pure Economic Loss: Financial loss that results from a negligent act where there has been no accompanying property or personal injury damage to the person claiming the loss ◦ When a person not in a contractual relationship causes someone else to suffer a financial detriment only, such a loss is generally not recoverable ◦ One explanation is that the rule prevents defendants from being overwhelmed with liability ◦ Arelated explanation is that to permit recovery of damages in such cases would cause to much litigation in the courts ◦ In relatively few areas, such as negligent misstatement, that a plaintiff can recover for pure economic loss • The law requires the plaintiff to prove each and every step in negligence action
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