Part 2 – The Law of Torts

Chapter 5 – Negligence

and Unintentional

Torts

Prepared by Michael Bozzo, Mohawk College

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NegligenceProximate causeDuty of careForeseeabilityStrict LiabilityVicarious LiabilityRes ipsa loquitor

Overview

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Occupiers Liability Manufacturers' Liability (Product Liability) Nuisance Defenses

Contributory negligence Volenti non fit injuria Act of God Waiver Release Statute of limitations

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Overview

RemediesCompensationNominal damagesPunitive damagesCourt orders

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Overview

Intentional – willful Unintentional – negligence or

recklessnessUsually an omission on the part of someoneDuty to refrain from acting negativelyNo duty to act a certain way (positive duty)

Initially only intentional injury was actionable

Determining Negligence

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This type of liability enlarged as society changed and became more civilized

Three Requirements1. Defendant owes the plaintiff a duty not to injure2. Defendant’s actions constitute a breach of that

duty3. Plaintiff suffers some injury as a reasonably

foreseeable result (causation) of the defendant’s actions

Negligence (Liability)

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Duty not to injure another personA right-duty relationshipDuty not to injure must be owed to the

party suffers the injuryThe Reasonable Person

A standard of care used to measure acts of negligence

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Duty of Care

Varies based on:Nature of activityNature of person

Subject to test of foreseeability and the reasonable person

Breach of duty is a factual question

Nature of Duty of Care

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A reasonable person would foresee that their actions would cause harm to anotherIf yes = liableIf no = not liableA flexible concept

Foreseeability

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Or CausationA cause of injury directly related to an act of a

defendantMust be a connection between the defendant’s

act and the plaintiff’s injuryConnection cannot be too remote

“But For” test“But for” the defendants actions, would injury or

damage have occurred?

Proximate Cause

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Negligence

Ed: Please insert fig 5-1, pg. 82

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Definition• Responsibility for loss regardless of the

circumstances• Strict liability still exists in cases where

activities or practices are inherently dangerous

Strict Liability

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DefinitionThe liability at law of one person for the

acts of anotherEmployers (deep pockets theory)If done during the course of employmentReflected through insurance coverage

Vicarious Liability

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“The thing speaks for itself” Plaintiff must prove:

1. Cause of injury is something in the exclusive care and control of the defendant

2. Circumstances constitute events that would not normally occur if proper care had been taken by the defendant

Burden shifts to defendant to prove they are not liable if items 1 and 2 above are proven

Res Ipsa Loquitor

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Concept (common law) Duty of care owned by occupier, not

owner, to those who come on their land Visitors of any kind to a property are owed

the general duties and standards of care expected by a reasonable person

Occupiers Liability

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TraditionallyDuty of care owed only to the purchaser of

goods not the userManufacturer’s now owe a duty of care to

any foreseeable users of their products if:○They were negligent in their manufacture○They were aware of dangers associated

with the goods and failed to warn

Manufacturers’ Liability (Product Liability)

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Wide applicationInterference with the enjoyment of real property

or, in some cases, material interference with a person’s physical comfort

Balance the reasonable use of land by one with the decrease in enjoyment by another

Requires○ Serious decrease in enjoyment of land○ Specific damage to the land

Nuisance

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RemediesInjunction

Equitable remedy ordering a person to refrain from doing certain acts

Environmental nuisanceCovered through legislation

Nuisance

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Contributory NegligenceWhen actions of the injured party contributed to

their own injuries (plaintiff’s carelessness)Or injured party is the author (partially or wholly)

of their own misfortuneDamages paid in proportion to degree of

responsibility Voluntary Assumption of Risk

Volenti non fit injuria

Defenses

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Act of GodUnanticipated event that prevents the performance

of a contract or causes damages to property Waiver

An express or implied renunciation of a right or claim Usually must be written and cover the injury

contemplated by the parties at the time

Defenses

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ReleasePromise not to sue or press a claim, or a discharge

of a person form any further responsibility to act Statute of Limitations

Legislation sets forth time periods within one must bring an action

Most provinces it is 2 years from the date the injury occurred or from when the plaintiff became aware of the injury

Defenses

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Compensatory Damages Money damages Purpose is to restore the injured party to a

whole state (undo the harm done)1. Special damages: covers specific losses or

costs (actual amounts/receipts)2. General damages: compensation for pain and

suffering, future health issues, permanent incapacity (estimated by court based on evidence presented)

Remedies

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Nominal DamagesTort does not result in a monetary lossAward nominal damages i.e. $1No actual damages, Plaintiff legally correct but

not practically deserving of compensation Punitive Damages

Damages awarded to “set an example” and deter others from imitating flagrantly bad behavior

Court OrdersOrder by a court to a person to stop doing

something or to do somethingContempt of Court – refusal to obey a court order

Remedies

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Duty of CareIf owed then a breach of that duty is a tortForeseeability test – determined by the

reasonable person testDefendant’s actions must be the cause of the

injuries (can’t be too remote) Defenses

Can be used by the defendant○ Some are absolute defenses others are not

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SUMMARY