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MGSC30H3 (57)
Jeff Rybak (14)

Legal Environment - Lecture 005b

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University of Toronto Scarborough
Management (MGS)
Jeff Rybak

NEGLIGENCE 28 February 2014 (Chapter 6, p. 135-155) NEGLIGENCE determines whether the defendant can be held liable for carelessly causing injury to the plaintiff (IE: Manufacture produces beverage that makes consumers sick; investment counsellor’s bad advice leads to client purchasing worthless stocks). Tort of negligence requires plaintiff to prove that the defendant: • Owed a duty if care, in that they were required to act carefully toward the plaintiff • Breached the standard of care by acting carelessly • Caused harm to the plaintiff Defenses the defendant may show that 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 Professional negligence is when negligence is committed by a professional person (IE: Banker, lawyer, accountant). **NOTE: Should establish if they are professional’s first because they have different treatment DUTY OF CARE DUTY OF CARE exists if the defendant is required to use reasonable care to avoid injuring the plaintiff. Without duty of care there cannot be liability, even if the defendant carelessly injured the plaintiff. TEST FOR D ETERMINING THEE XISTENCE OF DUTY OF CARE Judge will ask whether or not duty of care question has been answered for particular type of case that is being litigated (IE: Precedence – bottler of a beverage owes duty to customer; mother does not owe duty to unborn child). If duty of care question has not already been answered for particular type of case: • Was it reasonably foreseeable that the plaintiff could be injured by the defendant’s carelessness o Objective o Person cannot take precautions against a hidden danger • Did the parties share a relationship of sufficient proximity o Close and direct connection between parties (relationship between parties) o Physical proximity (IE: Defendant carelessly swings a baseball bat while standing next to the plaintiff) o Social relationship (IE: Parent looks after child, stranger does not) o Commercial relationship (IE: Tavern responsible for drunken accident, host of a house party may not) o Direct casual connection (IE: Responsible for bridge when rammed into it, not for profits lost being unable to reach a store) o Relied on fact defendant represented they would act in certain way (IE: Railway company operates a safety gate pedestrians have come to rely upon) • If an injury was reasonably foreseeable, and if parties shared a relationship of sufficient proximity, the duty of care presumably will exist; however judge might still deny on the basis of policy reasons o Effect duty of care would have eon legal system and society generally  Open the floodgates, encourage people to swamp courts with lawsuits  Interfere with political decisions  Hurt a valuable type of relationship (Why mother doesn’t owe duty of care to unborn child)  Employee cannot sue an employer in tort for carelessly causing mental distress on job because it would limit business’s ability to increase efficient production, create a great deal of uncertainty STANDARD OF CARE STANDARD OF C ARE tells the defendant how they should act. It iREACHED if the defendant acts carelessly. It is based on thEASONABLE P ERSONS TEST that requires the defendant to act in the same way that a reasonable person would act in similar circumstance: • Objective (doesn’t make allowances for defendant’s subjective, or personal, characteristics) • Reasonable person takes precautions to reasonably foreseeable risks (even if it is unlikely, just not for unforeseen) • Reasonable person is influenced by both likelihood of harm (chance of injury 90% rather than 10) and potential severity of harm (death over bruises) • Reasonable person is more likely to adopt affordable precautions • Reasonable person may act in a way that has great social utility even though it creates risk (speed through a red light to save dying person) • Standard of care requires defendant to act as the reasonable person in similar circumstances (sudden peril doctrine) STANDARD OF CARE FOR PROFESSIONALS : PROFESSIONAL N EGLIGENCE A professional must act as a reasonable person would act in similar circumstances. Special attention to 5 factors when dealing with professionals: • Professional must live up to training they received or claim to receive (cannot confess lying about qualifications) • More is expected of a specialist than a generalist • Special allowances are not made for beginners (inexperience must conform to standard of competent and experienced professional) S
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