Question 1

Zooland Ltd. owned and operated a large zoo and entertainment complex in Niagara Falls. One of their most popular attractions was an outdoor stage show featuring the Magnificent Ernie and his trained bear "Bert". Ernie and Bert performed a number of tricks, with a finale where Ernie would wrestle Bert, ultimately causing Bert to "tap out" with his paw, signalling victory to Ernie.

The tickets to the show included the following warning on the reverse side:

WARNING - patrons are warned that the show that they are about to see involves the use of wild, unrestrained animals. These animals are unpredictable and accidents will happen. The ticket holder hereby releases Zooland Ltd. from all liability for any injury sustained while viewing this show."

On January 15th, Ernie decided to introduce a new wrinkle to the show. During the wrestling match, following a particularly vicious "attack" by Bert, Ernie's arm flew into the audience. "Blood" spouted everywhere and it appeared that Ernie had lost his arm to the savage Bert.

Ernie had told no one of his plans to introduce the fake arm and blood to the show. Berts trainers, thinking that Ernie was injured quickly advanced to attempt to restrain Bert. Bert, terrified at the advancing handlers, bolted from the stage.

The fake arm struck Esther, who screamed and fainted.

The staff and security personnel were in shock as the crowd panicked. It took several minutes for someone to call emergency services. An ambulance arrived 20 minutes later. The paramedics were told that Esther had fainted. She seemed to be somewhat confused, although conscious. It was decided that she would be taken to the hospital as a precaution. However, since she had gained consciousness, the lights and sirens were not activated by the paramedics.

Esther had had a history of heart problems and usually wore a medic alert bracelet. She had recently broken the bracelet and had not replaced it. The paramedics had not, in any event, checked for a bracelet or inquired as to Esthers medical history.

Esther sustained a massive heart attack when the ambulance was approaching the hospital. The doctors were unable to save her. If she had been at the hospital when she suffered the attack, it was likely that she would have survived.

Meanwhile, Bert was still on the loose.

Chauncey was a driver for Gardner Transport Inc. He was about to pull into the Niagara Falls Casino parking lot with a load of slot machines when Bert darted across the street in front of him. Startled to see a large black bear in the city, Chauncey hit the gas pedal instead of the brake and the truck shot across the road, hitting the hydro transformer that serviced the Casino. As a result, all power to the Casino was cut off.

Following these events:

(i) Esther's Estate wishes to commence legal action. Esther was 65 years old and was a best selling novelist, about to complete the next book in a popular series, Games of Kings. She had received profits in excess of $1,000,000.00 from each of the previous books.

(ii) Niagara Falls Casino estimates that it has sustained losses of 1.5 million dollars, being $1,000,000.00 in lost gaming profits and $500,000.00 in complimentary packages and gaming tokens given to disgruntled gamblers as a result of the Casino being closed.

Required: Discuss the possible legal actions based upon the principles of negligence that may be brought by Esther's Estate and the Casino. Discuss the likely outcome of the actions. Be certain to explain the applicable legal principles as part of your answer