Unintentional Torts

Is this negligence? I punch Joe in the face? I start class by telling everyone that Joe

drowns puppies? I leave all of my teaching stuff in the

doorway to the classroom, and Joe trips over them and breaks his glasses?

What is negligence? Negligence occurs when anyone carelessly

injures a person or a person’s property and should compensate the victim for that injury

Negligence has three characteristics:◦ 1. the action is unintentional◦ 2. the injury is unplanned◦ 3. injury results.

1. Reasonable person

2. Duty of Care

3. Standard of Care

4. Foreseeability

5. Causation [cause-in-fact / remoteness of damage]

Stages of Negligence

Reasonable person: as an “ordinary adult” without any disabilities. ◦ Thoughtful, never making snap judgements,

etc.. Although this person does not actually

exist, the reasonable person is thought to be careful and considerate.

The definition of a reasonable person may also depend on location.

1. Reasonable Person

Duty of care—a specific legal obligation to not harm others or their property.

Duty of care can be highly specific or apply more generally to the public. ◦Example: each motorist owes everyone a

duty of care while driving. If the court decides the defendant did not

meet his or her duty of care, the defendant can be found in “breach of duty of care.”

2. Duty of Care

Beyond duty of care, victim must show that the wrongdoer did not show a standard of care that would be met by a reasonable person ◦ For example: a child can’t be expected to forsee

the risk in the same way an adult can◦ OR◦ A professional may be required to exercise even

greater care than a reasonable person◦ It is higher when it involves children

3. Standard of Care

Strict liability: higher for certain situations [i.e., person who has explosive’s and injures a passer by]

Occupier’s liability: cannot leave things lying around that can harm people [i.e., ice on driveway]

Vicarious liability: person in authority over another [i.e., teachers responsible for negligent act of students]

...

Foreseeability: a person’s ability to anticipate the specific result of an action.

If a court decides that a reasonable person should have been able to predict, or foresee, the injury created, the defendant can be found liable.

4. Foreseeability

Causation: occurs when the defendant was in breach and the defendant’s actions directly led to the plaintiff’s injuries or loss.

If it is not straightforward, use test:◦ But-for test: would the injury have taken place but

for the defendant’s negligence ◦ For example: person driving friends car, the

brakes are bad so ends up hitting pedestrian –both driver and friend will be held liable.

5. Causation

Must prove what damages occurred Defendant is not liable for all damages, they

use foreseeability test: 3 parts:◦ 1. remoteness of damages rule: wrongdoer must

be able to foresee the kind of injury victim could suffer, if can’t, it is too remote for compensation

◦ 2. thin-skulled plaintiff rule: wrongdoer takes victim as he/she finds him/her

◦ 3. intervening cause rule: if doctor fixes broken leg and damages it permanently, person who breaks it pays for his share, rest by the doctor

Damages

DEFENCES

There are four common defences to negligence:

1. Contributory negligence2. Voluntary assumption of risk3. Inevitable accident4. Participation in illegal activities

**The best possible defence to negligence is to argue that no negligent action occurred at all.

Defences

Contributory negligence occurs when the alleged victim created at least part of the harm that he or she ended up suffering.

This defence is often used in lawsuits involving motor vehicle accidents. ◦ For example, if one driver was speeding and

another ran a stop sign, both drivers are negligent.

Courts use actual percentages to determine responsibility.

1. Contributory Negligence

If person is in a situation they should be aware of the risk; knowingly accepting factors that may cause harm or injury.◦ Common examples include contact sports,

extreme sports, and stunts. For many high-risk activities, a waiver is

required to minimize potential lawsuits.◦ A waiver is a document that releases or

excuses a party from liability if an accident or injury occurs (e.g. a hockey league makes players sign a waiver).

2. Voluntary Assumption of Risk

Also referred to as “act of God,” Use to argue that although an accident

occurred, it was not anyone’s fault.◦ Example: If an accident occurs after a vehicle

struck by lightning, it is difficult to assign blame or argue that the resulting harm was foreseeable.

Inevitable accident means that the harm could not have been reasonably prevented.

3. Inevitable Accident

Participation in illegal activities are not eligible for compensation◦ For example, if a store owner left a slippery

puddle and a thief who breaks in at night ends up injuring himself.

4. Participation in Illegal Activities