NEGLIGENCE

NEGLIGENT OR NOT NEGLIGENT?

 A restaurant worker who mops the floor and forgets to put a “Wet Floor” sign
 A surgeon who leaves a tool in their patient after surgery
 A driver who runs a stop sign
 A home owner that leaves the railing on the staircase broken
 An employer that does not follow the OSHA guidelines
 A babysitter who feel asleep when the children are awake
WHAT IS NEGLIGENCE?

 Conduct that falls short of what a reasonable person would do to protect another
person from harm
 If an injured person proves that another person acted negligently to cause his injury,
he can recover damages for his losses
 There are 3 key characteristics of negligence:
 1. The action is unintentional
 2. The action is unplanned
 3. An injury results
 Negligence suits are analyzed in stages/elements
 The following stages must be established in every negligence case in order for a
person to be held liable for negligence
STAGE 1: DUTY OF CARE

 Did the defendant owe the plaintiff a duty of care?

 A duty of care is when a person is under a legal obligation to exercise care for
another person and not harm them or their property
 In order to determine if a person had a duty of care we look at the following two
questions:
 1. Could the defendant have predicted that this particular person would be
injured by their actions?
 2. Was there a risk the defendant should have been aware of?
 Example – when driving a car, you have a duty to avoid accidents
STAGE 2: BREACHED DUTY OF CARE

 Once a duty of care has been established, the court must determine if the defendant
breached it
 This happens when the defendant fails to meet the expected STANDARD OF CARE,
or degree of care that an ordinary or “reasonable” person would use
 Example – you drove unsafely and went through a red light
 Key concept related to the concept of a reasonable person is FORESEEABILITY –
that is a “reasonable” person could anticipate a specific result of an action
STAGE 3: CAUSATION AND ACTUAL HARM/LOSS

 Once it is established that the defendant has not met the required standard of care,
the plaintiff must then prove that the defendant’s negligent conduct caused the
plaintiff harm
 WITHOUT CAUSATION LIABILITY FOR NEGLIGENCE DOES NOT EXIST
 The plaintiff must prove that real harm or economic loss occurred because of the
defendant’s negligence
 Example – plaintiff or plaintiff’s car suffered damage because of the unsafe driving
through the red light
BASIC STEPS IN SUMMARY

 1. Does the defendant owe the plaintiff a duty of care?

 2. Did the defendant breach the standard of care?
 3. Did the defendant’s careless act cause the plaintiff’s injury or loss?
 4. Was there a direct connection between the defendant’s action and the plaintiff’s
injury or loss? Was what happened foreseeable?
 5. Did the plaintiff suffer actual harm or loss?
Other Examples:
Elements In a store In a hospital In a law office

Plaintiff is owed a duty Duty to ensure store is Duty to provide Duty to provide
of care safe competent treatment competent legal advice

Defendant breached Failed to clean up jam Amputated the wrong Gave faulty legal advice;
duty of care spilled on floor limb client lost right to sue

Plaintiff suffered Plaintiff slipped on mess Plaintiff endured Plaintiff lost money
resulting harm or loss and broke hip unnecessary pain and arising from potentially
because of defendant suffering successful lawsuit
CASE STUDIES

 Prevost (Committee of) v.Vetter – pg. 343

 McQueen v. Alberta – pg. 344
 Hagerman v. Niagara Falls (City) – pg. 348 (1-3)
 Posca v. Sotto – pg. 355