10.2 - Negligence & Unintentional Torts

Tort Law

One of the key types of civil law is tort law.  A tort is the harm that is done to a person or property for which the law provides a civil remedy.  Tort law, then, is the area of civil law where parties seek a legal remedy for some type of harm that was done to them or their property.  Torts include both intentional and unintentional acts.  Unintentional torts are those injuries caused by an accident or an action that was not intended to cause harm.  The focus of this section on civil law is unintentional torts.

Negligence

The most common type of unintentional tort is called negligence.  Negligence is the careless conduct that causes foreseeable harm to another person.  In order for negligence to be proven, the following three key elements must be present:  duty of care, standard of care, and causation.

Duty of Care

First, duty of care is the obligation to foresee and avoid careless actions that may cause harm to others.   Duty of care is related to the neighbour principle, which is the legal responsibility to owe a duty of care not to harm one’s neighbour through carelessness or negligence.  A neighbour, in this situation, is anyone within a person’s sphere of influence.  So, then the first question that is asked in a negligence action is, “did the defendant owe the plaintiff a duty of care?”  If the answer is yes, then they proceed to the second element of negligence.  If the answer is no, then negligence does not exist.

Standard of Care

The second element of negligence is standard of care.  Standard of care refers to the degree of caution or level of conduct expected of a reasonable person.  A reasonable person is a legal term that describes a person who exercises a sensible level of reason, intelligence, and care.  So then, the second question that is asked in a negligence action is, “did the defendant fail to provide the plaintiff with the proper standard of care that a reasonable person would’ve provided in a similar situation?”  If the answer is yes, then they proceed to the third element of negligence.  If the answer is no, then negligence may not exist.

Besides the standard of care expected of a reasonable person, some people have higher expected levels for standard of care.  For example, professional liability refers to a higher standard of care for those people with special skills, such as medical professionals.  These types of professionals have a specialized standard of care.  This refers to the degree of caution or level of conduct considered necessary by a reasonable person with the same specialized training.  For example, a doctor has a higher expected standard of care in medical situations than a plumber would, and they may be found to be medically negligent if they perform a medical procedure on a patient without their consent, or without informing them of the risks of the procedure.

Children also have slightly different legal status relative to standard of care.  For example, if a child is under 6 years old, they are not civilly liable at all, because they are too young to fully understand their actions.  On the other hand, children over 6 years of age may be found liable depending on how their behavior compares with a typical child at that age.  One exception to this concept is that, if a child is performing an adult-like activity, like riding a dirt bike, then they may be held to the same standard of care as an adult.

Parents, on the other hand, may be found liable for torts committed by their children.  In order to disprove liability for torts committed by their children, parents would need to prove that they were supervising their children at the time, and that the tort was unintentional.

Finally, rescuers have a special provision in Canadian law that protects them from being sued if they accidentally injure someone while giving first aid.  This legal provision is called the Good Samaritan Law, and is the legal principle that protects a rescuer who has voluntarily helped someone in distress from being sued if he or she actually causes that person harm.  The key is that the rescuer must act only up to their own knowledge and ability.

Causation

The third and final element of negligence that must exist in order for an action to be negligence is causation.  Causation is simply the direct connection between the actions of the defendant, and the injuries suffered by the plaintiff.  The actions of the defendant must be proven to have directly caused the harm to the plaintiff.  If the connection is not direct, the principle of remoteness of damage might apply.  Remoteness of damage suggests that the harm done could not have been foreseen by the defendant due to the lack of a close connection between the wrong action and the injury.  In terms of any pre-existing conditions, the thin-skull rule applies as well.  This is the principle that a defendant is liable for all damages caused by negligence, despite any pre-existing condition that makes the plaintiff more prone to injury.

Although causation must exist in order for negligence to exist, sometimes both the defendant and the plaintiff are somewhat responsible for the damage to the plaintiff.  The division of fault among different wrongdoers is called apportionment.  In cases like this, a judge might assign a certain percentage of blame to each party.

Review of Negligence

Proving negligence is the plaintiff’s responsibility.  It is up to the plaintiff to prove the following:  that the defendant owed the plaintiff a duty of care, that the defendant did not provide the appropriate standard of care, and that the defendant’s actions directly caused the harm to the plaintiff.

Special Types of Liability

It’s already been stated that negligence is the most common unintentional tort.  Within the area of negligence, there are a number of specific types of liability.  Several of these types are to be discussed below.  The first type is product liability.  This is the area of law that deals with negligence on the part of manufacturers.  The second type to consider is occupier’s liability; and this refers to the responsibility of owners or renters to ensure that no one entering their premises is injured.  There are three different standards of care in occupier’s liability:  invitee, licensee, and trespasser.  The highest standard of care is for an invitee (a person invited onto property for a business purpose - eg.  a plumber coming to fix something).  The next highest standard of care is for a licensee (person with express or implied permission to pay a social visit - eg.  family, friends).  The final, although lowest, standard of care is for a trespasser (person who enters property without permission or legal right - eg.  burglar).  Finally, it is interesting to note that children who trespass must be given a high standard of care.  Property owners must take care to fence property to prevent neighborhood children from trespassing and potentially hurting themselves.

The third special type of liability is called vicarious liability.  This type of liability refers to the legal responsibility for the negligence of another person.  This is most common in a workplace situation, where an employer is vicariously responsible for the actions of his or her employees.  Next, the fourth special type of liability is host liability.  Host liability is the liability for someone who serves alcohol to guests, or to paying customers.  The highest standard of care is expected of those hosts who serve alcohol to paying customers; while the standard of care for residential hosts is usually less stringent.  The fifth type of special liability is automobile negligence, and this refers to any one of the multiple types of negligence that may occur through the operation of motor vehicles.  The sixth and final type of special liability to be discussed here is called strict liability.  Strict liability refers to the principle that a defendant is automatically liable for injury or damage caused by a dangerous substance or activity, even if the defendant was not negligent.  Although this list of special types of liability is extensive, it represents only a fraction of the much broader area of tort law.

Defenses to Negligence

Remember that it is up to the plaintiff to prove that the defendant owed the plaintiff a duty of care, that the defendant didn’t meet the required standard of care, and that the actions of the defendant directly caused the harm to the plaintiff.  So then, how might the defendant argue their case?

The fundamental defenses available to the defendant includes the following:

• there was no duty of care owed

• if duty of care existed, the standard of care was met

• actions didn’t directly cause harm to plaintiff

• plaintiff contributed to cause harm (contributory negligence...negligent acts by the plaintiff that helped cause the plaintiff’s injuries...apportionment/share of blame)

• plaintiff knowingly accepted risk of harm (voluntary assumption of risk...the defense that no liability exists because the plaintiff agreed to accept the risk normally associated with the activity...signed a waiver...document signed by the plaintiff releasing the defendant from liability in the event of an injury)

• plaintiff waited too long to sue (statute of limitations...law that specifies the time period within which legal action must be taken...length of time to wait varies according to type of civil case)

• defendant had a good reason for doing what was done (explanation...the defense claiming that an accident occurred for a valid reason, even though the defendant took every precaution)

• defendant could not avoid the harm because of an inevitable accident...the defense claim that an accident was unavoidable due to an uncontrollable event

• the defendant could not avoid the harm because of an act of God...the defense claims that an accident was caused by an extraordinary unexpected natural event such as a tornado, earthquake, flood, etc.

Summary

Tort law is focused on helping to resolve the disputes that might arise between people and/or organizations.  It is possible to be found responsible for harm caused, even if it was not intentional.  Negligence, as the most common unintentional tort, is a fundamental part of civil law.   Proving or disproving a negligence claim must focus on duty of care, standard of care, and causation.  Many special forms of negligence exist in specific circumstances.  Claims of negligence may be defended by disproving duty of care, standard of care, or causation; as well as through a number of different other defense approaches.