TORTS
1) Negligence (Duty of Care)
A plaintiff may sue a defendant for his negligent actions in tort by demonstrating the defendant’s duty
of care, breach of that duty, causation and damages. The defendant’s duty of care depends on the
situation involved. It requires that the defendant conforms to the standard of care expected of a
reasonable person in the defendant’s position. Such duty extends to foreseeable plaintiffs. One’s duty
of care may be examined based on two requirements; his standard of care and foreseeability of the
plaintiff.
Firstly, a defendant’s standard of care is based objectively; whether the defendant acted as a
reasonable person would have done so. The standard of care is generally based on a reasonable person
who shares the same physical characteristics and superior knowledge or skill as the defendant, known
as the ‘reasonable prudent person’ standard of care. For example, if a man with a broken arm
committed injury to another by accident, would a reasonable person with a broken arm have done the
same? If a man who is specialised in banking committed damages towards another by accident, would
a reasonable person with banking knowledge done the same? However, a defendant’s mental
deficiencies will generally not be taken into account. Ultimately, the burden of proof will be on the
plaintiff, but only by a preponderance of evidence.
However, the defendant’s common standard of care may vary as common law extends his standard
depending on the status of the defendant. For instance, professionals are expected to act in the same
line as others with the same expertise, experience and in good standing in a similar community. Thus
a national standard will apply for that speciality.
Whereas doctors should also act as doctors would be based on either the national or state standard
(some states). But doctors may only be liable for failing to disclose risks before treating a patient if
that patient would have withheld his consent to the treatment because the risk was so serious. Thus,
if a doctor performed surgery on a patient and the patient found out the doctor failed to notify him of
the potential risk of hallucinating but the patient would have consented to the surgery anyway, the
doctor has not breached his duty of care.
A child’s duty of care will be lower than that of adults, in that a child must act as a reasonable child
would with the same age, intelligence and experience. In this case, the standard is subjective rather
than objective. A child under the age of five will not be expected to owe a duty of care. But his duty
of care will increase to the adult standard if he engages in an adult-related activity, such as driving a
car. For instance, if the child drives a car and crashes into a pedestrian because he failed to see the
red light, the child cannot argue that he was not aware that a red light requires him to brake as his
duty will be expected of an adult who would be aware of such trafficking laws. But if a child threw a
ball at someone and hurt him, the child cannot be sued because an adult would not have thrown a ball
at him as he should be judged by the actions of a reasonable child instead.
For common carriers and innkeepers, their standard of care will be significantly higher. However,
such care is only owed to guests and passengers. For example, an amusement park is not expected to
owe a duty to someone who tried to get on a ride without authorisation, but did not. A hotel owner
does not owe a duty to someone trespassing and staying in one of the rooms without permission.
On the other hand, automobile drivers may still owe duties to non-paying passengers if they act
recklessly, rather than negligently. Thus the standard is lower for non-paying passengers, but if they
,consciously disregarded the serious risk of harm caused by the driver’s actions, they may be liable
nonetheless.
Bailees will owe a duty to bailors where the bailor loans property to the bailee. Under the common
law, their standard of care varied depending on whether the benefit was for the bailor or bailee.
However, modern law imposes the same duty to the bailor regardless of the recipient of the benefit.
Whereas bailors owe a duty to disclose any defects in the property that they were aware of if the
benefit is for the bailor. But where the benefit is for both parties, the bailor must have been aware of
the defect. For example, a man loans his computer to his friend. The friend uses the computer for
compiling data for his business, and he will improve its data storage for the man. Because the benefits
are for both parties, the man will be liable for any obvious defects in the computer even if he was not
aware of them. But if the man was to only benefit, he will not be liable for defects that he was not
aware of.
In the case of emergencies, a defendant’s actions will be based on how a reasonable person would
have acted in the emergency. But if the defendant created the emergency himself, his standard of care
will be higher, disregarding the emergency. For example, a house was set on fire. The man went to
rescue a girl, but believed it was too dangerous because the house was falling apart. Because he did
not create the fire, he should be judged by how one would act in the case of the fire. But if the man
created the fire, he will be judged by how one would act disregarding the fire, in which he will likely
be expected to save the girl.
Landowners owe varying levels of duty to other parties, depending on the plaintiff’s status. Generally,
landowners owe no duty to protect others off the premises and non-anticipated/discovered trespassers
from natural conditions. If a discovered trespasser on a landowner’s field or a man resting on his own
house is irritated by a falling branch from the landowner’s field, the landowner will not be liable for
any damages because the falling branch is a natural condition. However, if the condition is artificial
and it will create dangerous harm that the landowner was aware of, the landowner owes a duty to
prevent such harm towards trespassers and those off his premises. This includes vendors of land to
those off his premises until the vendee has an opportunity to inspect the artificial condition. For
children entering his land, the ‘attractive nuisance’ doctrine will apply. Here, the landowner owes a
duty of care to children for artificial and natural conditions, the landowner should have known of any
risks of harm, the landowner should have known the children would frequent in the vicinity of
entering his land, and the cost of removing the risk is still outweighed by the risks. In particular, the
child must not have been aware of the risk. For example, a child enters a man’s land to play on his
see-saw. The man would have known children would enter to play on it, and the see-saw is artificial
and defective which the man should have known about. In this case, the man will be liable for injuries
to the child. But if the child knew the see-saw was dangerous, and suddenly bumps into it, the child
cannot bring any action against the man because he assumed the risk of using the see-saw. But in the
case of parties who are not children, the standard is different. In this case, the landowner should not
have been aware of any defects, rather he must have had actual knowledge only. In the case of
trespassers, a landowner owes a duty to protect trespassers only if they are discovered or at least
anticipated. For example, a landowner puts a sign on his land saying ‘no trespassers allowed’, in
which he cannot be liable for trespassers entering his land. Also, a landowner must prevent harm
caused by artificial conditions only, not natural conditions, that will cause serious risk of harm or
death. If the landowner knew someone entered his land, and the trespasser tripped over a tree branch
or tripped over a little box, he cannot bring any action. Whereas for licensees and invitees, the
landowner’s duty extends to natural conditions. It is also important to distinguish between a licensee
and invitee with regards to the landowner’s duty to repair or inspect problems. A licensee is invited
onto the owner’s land, whereas an invitee is invited to confer an economic benefit on the owner’s
, land or enters a land open to the public such as a museum. For licensees, the landowner owes no duty
to inspect or repair any risks that are not obvious at all. But for invitees, he must do so. For example,
a man asks his friend to come to his house and the friend trips over a hidden rock smashing his head
on the ground. The man will be liable to the friend for the hidden rock if he was aware of it, but not
because he failed to inspect the hidden rock. However, if the man asked his friend to come and pay
to see an exhibition at his house and the friend trips over, the man will be liable for failing to discover
the hidden rock. Thus the duty towards invitees is stricter. For recreational land users, the landowner
only owes a duty towards them for dangerous conditions if the landowner is reckless and acted
wilfully in failing to remove them, rather than negligently. Thus the standard is lower. For example,
a landowner was not aware his shed construction would cause injuries to others. If a trespasser was
injured by it, the landowner may be liable. But if a person using his land for recreational purposes
like fishing was injured, the landowner should not be liable since he was not wilful in failing to
prevent such injuries, but only negligent. For tenants and tenants’ guests, the landlord may be liable
for any defects in the property that he was not only aware of, but at least should have been aware of.
This duty also applies to tenants’ duties towards their guests. The threshold is higher in this case for
landlords than for landowners. For example, a man rented a house and invited his friend over. The
friend hurt his foot after stepping on a splinter in the staircase. The landlord had no idea about the
splinter. However, he should have been aware because he could have reasonably inspected the house
before renting it out. Thus, the landlord as well as the tenant may be liable to the guest. But if the
guest was a trespasser, the landlord cannot be liable because he had no knowledge. Ultimately, a
landowner is liable for a defect that he was aware of, whereas a landlord is liable for a defect that he
should have been aware of.
A party may be liable for causing negligent infliction of emotional distress to another. Here, a plaintiff
can sue a defendant because his actions caused him to feel emotionally distressed. It is not relevant
that the defendant did not reasonably foresee that the plaintiff would suffer distress, as long as his
actions caused a foreseeable risk of causing distress. In some situations, the plaintiff must have
suffered physical manifestations as well as distress. For example, if a plaintiff was within the zone of
danger of the defendant’s actions, the plaintiff must have suffered physical symptoms like a heart
attack, as well as distress. However, if the plaintiff was not within the zone of danger, he can still sue
for emotional distress under certain circumstances. As a bystander, the plaintiff was related to the
third party towards whom the defendant caused harm. The plaintiff must have observed such harm
and was present at the scene of the injury, and then suffered emotional distress. A man hurt a young
child, his mother saw him hurt the child and was shocked. The mother can sue for emotional distress
since she is related to her child and watched the man’s actions, even though she suffered no physical
symptoms. It is important to note that negligent infliction does not require the defendant to have been
aware of the plaintiff’s relationship and such emotional distress does not have to be severe. But the
plaintiff must have observed the defendant’s actions, which is necessary. However, such perception
or physical symptoms is not required if the defendant committed egregious conduct. For example,
the defendant misreported the death of a relative’s corpse or mishandled a relative’s corpse.
Sometimes a defendant may assume a duty of care, if not imposed by statute or common law. For
example, if a defendant negligently/innocently places or agrees to rescue a plaintiff, he must ensure
he does not leave him in a worse position. For example, a man sees someone lying on the road
bleeding. The man ignored him, but the injured person suffers more blood. The man has no liability
because he never undertook to help him, so he owed no duty to him. Whereas a man offered to get
help but came back realising the pedestrian was suffering more blood. In this case, the man is liable
since he undertook to rescue him in the first place. Special relationships may also impose such duty.
For example, parents will owe duties of care towards children, and common carriers or innkeepers
will owe duties towards their passengers or guests respectively. A defendant may also owe a duty of
