Course Content!

Duty of Care

What does Duty of Care mean?

• Duty by a person to act reasonably
• Everyone has a duty to take reasonable care to avoid causing injury to anyone else
• Neighbour to neighbour, host to guest, parent to child, coach to athlete
• The Reasonable Person Test - what would a careful, thoughtful person in the same circumstances have done?
• Example: If you drive a car, you have a duty to obey the rules of the road
• Professionals and skilled tradespersons are held to a higher standard of care in their work

Breach (of the duty of care)

The duty of care is breachedwhen someone does or or does NOT do something that an average person would have (have not) done in a similar circumstance.

Negligence of the defendant would arise if the judge/jury finds that an average person:

• Knew everything the defendant knew at the time;
• Would have known his/her actions might cause an injury to someone else;
• Would have done something different from what the defendant did in that situation.

Examples in which a breach of duty has occurred:

1. A dog owner who knows their dog is very aggressive towards children brings the dog to a kid party, and the dog bites a child.
2. A driver drives fast in a busy residential area and runs down a pedestrian

Causation

A defendant ("tortfeasor") will be liable for reasonably foreseeable consequences of his or her acts

If injury was a likely consequence of an act, it is not necessary to know exactly how such an injury would be caused

The "but-for test": If it were not for the negligent actions of the defendant (breaching the standard of care), the plaintiff would not have been injured

You must prove BOTH of the following to prove causation:

1. Causation In Fact :The breach actually caused an injury

Can you trace the injury back to the defendant's actions?

1. Proximate* Causation:The connection between the breach and the injury was foreseeable and not too remote

Could the defendant have foreseen (anticipated) that his or her actions would cause an injury?

Thin Skull Rule

A tortfeasor (defendant) who can reasonably foresee some injury as a consequence of his or her conduct may be liable for more serious consequences than he or she anticipated

"Thin Skull Rule" means that a tortfeasor needs to take the plaintiff as they are ... the plaintiff may have a condition that the tortfeasor is unaware of (such as a medical condition that the defendant was unaware of)

Damages

• A plaintiff may have suffered actual damages (medical costs, lost wages, pain and suffering, etc.)
• The basic idea of damages is fairly simple: All injuries can be reduced to a monetary amount
• The real difficulty comes in calculating damages

example: it is pretty easy to figure out how much a destroyed car is worth, but it's not so easy to figure out how much eyesight is worth

SCENARIO

Luba Henger sued Ifix Resort after her daughter broke her leg on one of the facility waterslides.

The plaintiff claimed she visited the resort with her husband and young daughter. While at the resort, the plaintiff and her daughter decided to use the waterslide park.The plaintiff claimed that no signs were posted restricting the age of children allowed to use the facility. She took a ride on the waterslide with her 3-year-old daughter.

While sliding down the waterslide, her daughter fell over the side just before entering the pool. At the end of the slide ride, her daughter hit her head on the edge of the pool just before landing in the pool.Her daughter suffered serious head injuries.

On behalf of her daughter, the plaintiff sued for damages and for past and future health care as her daughter began to recover from the injury.

Ifix Resort, in its Court defense statement, claimed that the resort had placed a sign recommending the use of the slide only to customers that are five years and older.

Furthermore, the organization argued that the plaintiff voluntarily assumed the risk of injuries when she signed the waiver on behalf of her daughter at the time of booking.

QUESTION 1:

1. You have been hired to be the lawyer for the injured plaintiff.

• State if you believe the four elements of negligence are applicable to this case by indicating Yes or No for each element.
• Briefly explain why - or why not - each of the elements are - or are not - applicable.

Elements	Yes or No	Why or Why Not
Duty of Care
Breach in the Standard of Care
Causation
Damages

COURSE CONTENT.

Purposes of Tort Law

• To restore the injured party to the position he or she was in

before the injury

• The primary purposes of tort law are regulation, deterrence, compensation, dispute resolution, education and prevention
  • Occurs when a person knows the consequences (= outcomes or results) of his or her actions and wants these consequences to happen

1. Intentional torts

• A person is liable for harm that is the foreseeable consequence of his or her actions
• What's an example of an intentional tort?

2. Unintentional torts (Negligence)

• Torts that are caused by the negligence of the person who commits the tort (called the "tortfeasor") ... ie: "they didn't mean to do it"
• What's an example of an unintentional (= negligent) tort?
  • Strict liability torts are torts where the law has determined that some activities are so dangerous that an individual engaging in those activities is liable for damages regardless of intent or negligence resulting in harm.

3. Strict Liability

Example:

Car racing on city street

Vicarious Liability

• Vicarious Liability is imposed when a party is held legally responsible for harm it did not cause directly.
• The most common application of vicarious liability: Companies (business) held responsible for harm caused by their employees in the course of employment.
• However, under vicarious liability, organizations are only responsible for harm caused while employees are carrying out their proper duties (standard duties of the job)

Defenses

Even where the plaintiff has proven all of the elements of a negligence tort, the defendant may be found not to be liable or the defendant's liability may be reduced based on certain defenses

1. Contributory Negligence
2. Voluntary Assumption of Risk

Contributory Negligence

If a plaintiff is partly or solely the cause of his or her own injury, the amount of compensation will be

reduced accordingly.

Voluntary Assumption of Risk

A plaintiff who has participated in an activity knowing that injury might result may be said to have

assumed the risk voluntarily The defendant must establish that the plaintiff knew about the risk and understood it the plaintiff had a choice to avoid the risk but instead voluntarily assumed it the defendant was not in breach of any statutory duty from which the injuries flowed

CASE STUDY

Luba Henger sued Ifix Resort after her daughter broke her leg on one of the facility waterslides.

The plaintiff claimed she visited the resort with her husband and young daughter. While at the resort, the plaintiff and her daughter decided to use the waterslide park.The plaintiff claimed that no signs were posted restricting the age of children allowed to use the facility. She took a ride on the waterslide with her 3-year-old daughter.

While sliding down the waterslide, her daughter fell over the side just before entering the pool. At the end of the slide ride, her daughter hit her head on the edge of the pool just before landing in the pool.Her daughter suffered serious head injuries.

On behalf of her daughter, the plaintiff sued for damages and for past and future health care as her daughter began to recover from the injury.

Ifix Resort, in its Court defense statement, claimed that the resort had placed a sign recommending the use of the slide only to customers that are five years and older.

Furthermore, the organization argued that the plaintiff voluntarily assumed the risk of injuries when she signed the waiver on behalf of her daughter at the time of booking.

QUESTION 2:

1. QUESTION: You have been hired to be the lawyer for the defendant.

• State the defense of your client in the present case by choosing one of the following options.
• Provide motivation for your choice, using the legal concepts studied in the course.

TOTAL exclusion of liability of the defendant
LIMITATIONS to the liability of the defendant