Duty of Care

Negligent and Intentional Tort Barry University EDU 674 The Legal Environment in Education Timothy D. Blevins, J. D. While conducting a tort walk at one of the local middle schools we identified several possible torts. One was of a building code violation, another in the way money was handled in the lunch room. I am going to pursue the building code violation and what the possible injury could be if not corrected. Upon our tort walk we discovered several windows open to the common areas.

These windows were out far enough for a person to walk or run in to. Depending on the persons size this could very easily cause severe injury to oneself. The windows are approximately four feet off the ground tilted out into the courtyard where students and faculty move about. When the bell sounds to change classes there is a lot of movement and confusion. It is easily seen to an observer how one could get hurt. Florida Statute 1001. 2 Says Maintenance and upkeep of school plant will provide adequately for the proper maintenance and upkeep of school plants, so that students may attend school without sanitary or physical hazards, and provide for the necessary heat, lights, water, power, and other supplies and utilities necessary for the operation of the schools. Second, make or contract for additions, alterations, and repairs on buildings and other school properties. Ensure that all plans and specifications for buildings provide adequately for the safety and well-being of students, as well as for economy of construction.

Florida Statute 1001. 43 authorizes facilities management thru the district school board to adopt policies providing for management of the physical campus and its environs, including, but not limited to, energy conservation measures; building and ground maintenance; fencing, landscaping,( and other property improvements); site acquisition; (new construction and renovation); dedication and rededication or naming and renaming of district buildings and other district facilities; and development of facilities management planning and priorities.

Strict liability by the law essentially means liability that is imposed on an actor apart from either, intent to interfere with a legally protected interest without legal justification for doing so, or a breach of a duty to exercise reasonable care. Strict liability arises as a result of the abnormal danger of the activity itself and the risk that it creates to those in its vicinity (Alexander, 2009).

Whether an activity is “ultra hazardous” or “abnormally dangerous” requires asking “whether the risk created is so unusual, either because of its magnitude or because of the magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried out with reasonable care. There are six factors for determining whether an activity is abnormally dangerous: Existence of a high degree of risk of some harm to the person, land or chattels of others; Likelihood that the harm that results from it will be great; Inability to eliminate the risk by the exercise of reasonable care; Extent to which the activity is not a matter of common usage; Inappropriateness of the activity to the place where it is carried on; Extent to which its value to the community is outweighed by its dangerous attributes.

All of these factors are important in consideration, but not all are required, and one is not more important than the other. Negligence can be a part of this scenario as well. Negligence differs from an intentional tort in that negligent acts are neither expected nor intended, whereas an intentional tort can be both anticipated and intended. With negligence reasonable person in the position of the actor could have anticipated the harmful results. An example of this is the window open at the school during class change.

The school knows the courtyard is crowded at this time and have been notified previously that it is a danger to students and faculty. A student runs into it not paying attention while talking to another student. Johnny’s eye is severely cut and requires surgery to fix it. This scenario would follow under this term negligence. It was not really intentional nor was it anticipated but it did happen. The school would be liable in this case. Reasonable person has been described by different courts but has roughly four elements: The physical attributes of the person

Normal intelligence Normal perception and memory with a minimum level of information and experience common to the community Such superior skill and knowledge as the actor has or holds himself or herself out to the public as having. To have a valid cause of negligence, certain prerequisites must exist. These four categories are divided like this: A duty to protect others A failure to exercise an appropriate standard of care The existence of a casual connection between the act and injury, called proximate or legal cause An injury, damage or loss

Building codes for public schools are different than private schools. Under the building codes for Florida schools certain safety regulations are required to be in place. Older schools have to be refitted to the standards of today. Some schools are condemned and others remolded to remain open. My course of action would be to retrofit the school with windows that do not open to the outside courtyard that could possibly injure personnel, or to secure the windows so they can only open an inch to prevent students from coming in contact with. Better to fix the problem now before there is a law suit.

Since Michelle suffers from depression, a recognized psychiatric illness, and does not suffer any physical injury, this is a case of duty of care (DOC) under Mental Harm (MM), as provided in sis CLAW. Circumstantial factors will be used to answer the reasonable verifiability question. From the facts, ‘sudden shock can be established as Michelle was in the midst of buying water when she was suddenly shocked by the bang and screams. Determination of DOC then falls upon sis. The contentious issue is whether hearing the accident and its aftermath constituted Witnessing.

A similar (but not identical) statutory interpretation issue arose in Wicks/ Sheehan, and the courts took a broad interpretation of the statute. Following this trend in interpretation, the concept of Witnessing should therefore not be limited to sense of ‘sight’ alone, as it is reasonable in such circumstances for one to be affected psychotically by sounds. By referring to provisions in  CLAW, it can be further inferred that in general, statute intends for witnessing to encompass both concepts of ‘sight’ or ‘sound’ for MM.

It was reasonably foreseeable that Michelle could suffer MM under sis as she dinettes Ben being injured and put in danger. The fact that Ben’s leg was broken due to the collapsed seating area shows that he was injured and being put in danger, and is still continually injured and being put in danger till Ben receives medical assistance. Therefore in considering those factors, it was reasonable for Michelle to suffer MM. DOC is established. Breach: The facts indicate that Concerted had been careless and caused the seating area to collapse.

Since Consonance’s conduct was negligent, there is breach of duty. Causation: In establishing necessary condition, the ‘but for’ test is satisfied by showing that the incident had a profound effect on Michelle, resulting in depression. This satisfies factual causation. No scope of liability (SOL) issues as Michelle MM is direct result of the collapse seating area. Michelle depression is the kind of harm that is reasonably foreseeable due to Consonance’s admitted negligence for the incident. Defenses: No defense available, thus Concerted fully liable for negligence.

Fauna v Concerted Pity Ltd Since Fauna suffers from a depressive episode, a recognized psychiatric illness, and does not suffer any physical injury, this is a case of DOC under MM, as provided in sis CLAW. From the facts, ‘sudden shock can be established as Fauna received sudden tragic news about the concert. Given her close relationship to Ben, it is reasonably foreseeable that she will suffer from nervous shock. Fauna satisfies the provision in sis CLAW as she is Ben’s mother, hence satisfying both sis(2)(c) and CLAW.

It was established that Concerted admit liability in the tort of negligence concerning Ben’s injuries. In pursuant to sis of CLAW, Consonance’s liability should also extend to Fauna, as she is a parent of Ben and a family member of Ben. Fauna would have legal remedy in the tort of MM. Ben v Lisa As Alias’s conduct was a clear positive act causing further injury, this is a non- problematic case. Existence of DOC depends on reasonable verifiability of class of plaintiffs. By subsuming Ben under a broad class of plaintiffs – ‘persons receiving aid’ – the requirement of verifiability is easily fulfilled.

Thus, it was reasonably foreseeable that Ben would suffer subsequent injury if Lisa failed to take reasonable care while rendering Ben aid. Hence, DOC is established, and Lisa is liable in relation to positive acts. Alias’s act of treating Ben with poison was negligent. Since the possibility of carelessly rather injuring Ben by treating the wound with poison is not far-fetched or fanciful, verifiability exists. The significance of further injuring someone is also a substantial risk.

In considering the reasonableness of possible precautions, the issue of social utility may be raised to Justify the lack of taking precautions to avoid these risks. Yet, the likely conclusion is that Alias’s act of treating Ben’s wound with poison, which created a serious risk of harm, was not warranted, as Lisa has the option of taking precaution by checking if the bottle was in fact antiseptic liquid or poison. It as been established that even when acting for social benefit, the standard of care is higher for professional defendant, and carelessly treating a wound with poison constitutes negligence.

In balancing the risk against the end, the risk that Lisa took when she treated Ben’s wound with poison was not Justified as Lisa has work experience from SST John’s ambulance, hence Lisa should exercise a higher degree of caution when treating Ben’s wound. In those circumstances, a reasonable man would have taken precautions to prevent foreseeable risk. Therefore, Lisa was negligent and this constitutes breach. There are no contentious issues in satisfying necessary condition here. ‘But for’ Alias’s not have sustained further injury.

Pursuant to sis(1)(b) CLAW, we need to consider whether it is appropriate to extend the defendant’s SOL to the harm. Alias’s act of negligence directly caused Ben further injury when she treated him with poison instead of antiseptic. Sustaining further injury is the kind of harm that is a reasonably foreseeable result of being treated with poison, as it is not far-fetched or fanciful, indicating Ben’s injury. However, Lisa might argue that ‘but for’ her negligence, Ben was still injured by Christopher gelignite.

The manner of harm was a foreseeable result of Ben’s injury as it is appropriate to hold Lisa responsible for the entire course of injury, even if Ben has sustained prior injury from Christopher negligence. Thus, Lisa has fulfilled the kind of harm and manner of harm test as Ben’s injury was reasonably foreseeable due to Alias’s negligent act. Lisa will try to seek protection from liability under so CLAW. Lisa fits the definition of “Good Samaritan” as she goes to Ben’s aid without expecting payment. However, to successfully use this defense, Lisa must prove that her act of assisting Ben was done oneself, and without recklessness.

There is nothing on the facts to suggest dishonesty, but her act of treating Ben’s wound with poison could possibly constitute recklessness. Ultimately, this should be decided by courts subjectively based on her circumstances, and if the defense applies, Lisa will not be liable for negligence. Darryl v Sarah Sarah owes a DOC to Darryl as an occupier of land because Darryl is an invitee to Sarah’s property, making him a lawful entrant. Occupier-entrant relationship is an established duty category, thus the existence of DOC presents no challenge.

Since it s reasonably foreseeable that visitors coming onto Sarah’s land would suffer some kind of harm if Sarah failed to take reasonable care, Sarah owes Darryl an obvious Donahue type DOC. The issue is whether Sarah’s omission to warn is part of DOC. An existing duty to act has to be established for omissions to constitute negligence. Sarah’s requisite duty to act arises from Occupier’s liability in ACT legislation – sass CLAW. Similar to Azalea, Sarah has a general duty as an occupier to act positively to take reasonable care to avoid foreseeable risk of injury to entrants, in the circumstances.

The DOC therefore clearly affords Sarah liability for omissions. Using sis CLAW, the breach enquiry examines Sarah’s particular conduct to ascertain, as a question of fact, if Sarah has breached DOC. If Sarah’s behavior is not reasonable, breach is established.

Three potential breaches:

1) Sarah’s failure to warn (by erecting a warning sign) is the most likely omission to constitute breach.

2) Failure to patch the gully, or to engage in physical impracticality of such precautions.

3) Failure to fence the gully is unreasonable as the gully is not a latent danger.

The gully, in these circumstances, could not cause harm to anyone without the person actively ‘Jumping over it, and it requires a fence all around, not Just at the particular area where accident occurred. Since the reasonableness of second and third precautions is uncertain and highly dependent on nature of gully, by common sense the first precaution (to warn) seems the most practicable. Similar to Wong, a contextual and balance assessment would establish that putting up a warning sign constitutes a reasonable and effective response to the foreseeable risk in this instance.

In deciding the nature of required warning, obviousness of risk is a factor to insider. There is no breach when obviousness of risk makes it reasonable for defendant not to respond to the risk of injury. This usually relates to omissions to warn. With reference to the facts, a reasonable person would have warned the entrant about the “rugged” nature of the premises, and the gravity and likelihood of Dairy’s probable injury if he were to engage in outdoor activity with Sarah’s motorbike. In this context, Sarah was required to take reasonable care by warning of this obvious danger.

From the facts, Sarah was negligent by failing to put up warning signs about the possible danger arising from the gully. Breach is established. There are two requirements for causation in sis CLAW. Firstly, negligence has to be a necessary condition of harm. Similar to Ideals Palace, there is no evidence to find that Sarah’s omission to warn, was a necessary condition of Dairy’s harm. The ‘but for’ test, functioning as a negative criterion of causation, fails here, as it is unreasonable to assume that Darryl would not have “Jumped” over the gully if Sarah had not been negligent in warning him.

Simply showing the possibility of different consequences in the absence of defendant’s negligent omission cannot satisfy actual causation. Darryl must therefore establish on the balance of probabilities that he would have responded to the warning in such a way as to avoid the danger. Given Dairy’s thrill seeking nature, he would still have attempted to “Jump” over the gully with Sarah’s motorbike. Therefore, Sarah’s negligence in warning would not be found to be a necessary condition. The defendant’s SOL to the harm.

In this instance the kind of harm was not foreseeable as it would be far-fetched or fanciful to assume that Darryl would not have attempted to Jump over the gully even if Sarah did not breach the failure to warn. Manner of harm is not in contention, as Dairy’s injury satisfies the manner of harm test in Wagon Mound – Dairy’s injury, is exactly the manner of harm that Sarah had reasonable foreseen. Since Alfred admitted liability under negligence, he owes damages. Calculation of Damages: Compensatory damages are divided into pecuniary, and non-pecuniary damages.

Pecuniary:

1) Derived-from-John’s-loss-of-earning-capacity. John-is-entitled-to-recover-for-any diminution-in-capacity-to-earn. Since-he-is-still-able-to-work-after-accident, but in a- lower-paying-job, he-will-be-compensated-for-the-net-loss-in-prospective-earning opacity according-to-provisions-of sis CLAW. This-is-calculated-by-finding-the average-income-of-a-top-Rugby-League-player, since he was already a first grade Rugby-player-with the-Canberra-cavalry, and has-not-made-it-to-the-top yet. From that sum, deduct-his-predicted-earning-capacity-after-accident. Further-deduct-costs that-John-have-had-to-have-incurred-in-earning-the-income.

2) Compensation in claim for medical treatment expenses. As long as John has paid for past medical treatment, relating to relevant injury, he can claim the costs. John will also be compensated for subsequent, long-term medical care, even though they ere provided free of charge by Elena. Even though Elena personally provided the medical care, principle in Australia is such that John will still receive compensation for gratuitous services provided. Damages for this will be calculated based on reasonable and commercial costs of providing the care. ) Discounts are considered because a sum of money is given for future pecuniary loss. Discounts for all future economic loss. It is usually 3% in all cases for ACT. Next, discounts-for-vicissitudes-of-life-usually-applied-to-future earning capacity only, and starts with 15% but varies circumstantially.

3) Collateral-benefits-does-not-apply, as the intention with-which-the-monetary benefits-from-his- “mates” was to-assist-John-in-bill-payments, and-not-reduce-the liability of Alfred.

Non-pecuniary:

1) Compensation for loss of amenities (enjoyment of life) is set out in sis CLAW.

It is likely that John will be compensated here as John has to give up his Rugby career and his pastime of waterier.

2) No compensation for pain and suffering and loss of expectation of life as no evidence in facts to suggest otherwise.

Ben v Alex Vicarious Liability: Since Ben is unable to sue Christopher, Ben might claim damages from Alex under legislation between Alex and Christopher. From Hollies/Stevens, it is necessary that an employer-employee relationship be established between Alex and Christopher for Alex to be vicariously liable.

The case involves an independent method for distinguishing an employee from an independent contractor. From the facts, Christopher has specific skills as a builder who is able to make an independent career to generate ‘goodwill’ given his reputation for having good workmanship. Alex had little control over the manner of how Christopher performs his work as Christopher has flexible working hours. Alex id not superintend Christopher finances, as Christopher was paid a fixed sum of money. Christopher also undertook the provisions of insurance and deducted taxes himself, and provided for his own leave arrangements.

Negligence, duty and Breach of Duty. To constitute a legal action against some one’s negligence, several requirements to be fulfilled. First one is that there must exist some duty of care towards the plaintiff by the defendant. The second one is that the defendant should breach such duty of care imposed on him. The third one is that the negligence done by the defendant should be the cause of the harm resulted to the plaintiff. The fourth one is that the harm should have some monetary value. In Haynes V Harwood (1935) 1 KB 146 at 152, Judge Greer L.

J, pointed out these requirements in his judgement stating that “ Negligence in the air will not do: negligence, in order to give a cause of action, must be the neglect of some duty owed to the person who makes the claim”. The simple meaning is that if one done negligence actions, in a place, which is untouched by other people, in such a place, there would not arise a duty of care toward others. Therefore the question of the breach of such duty of care would also not arise. In such a situation a legal action on negligence can not be instituted.

To understand above elements pertaining to negligence in law of tort, we shall discuss them in detail. Duty of Care In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached.

The duty of care may be imposed by operation of law between individuals with no current direct relationship (familial or contractual or otherwise), but eventually become related in some manner. At common law, duties were formerly limited to those with whom one was in privity one way or another, as exemplified by cases like Winterbottom v. Wright (1842). In the early 20th century, judges began to recognize that enforcing the privity requirement against hapless consumers had harsh results in many product liability cases.

The idea of a general duty of care that runs to all who could be foreseeably affected by one’s conduct (accompanied by the demolishing of the privity barrier) first appeared in the landmark U. S. case of MacPherson v. Buick Motor Co. (1916) and was imported into UK law by another landmark case, Donoghue v Stevenson [1932]. MacPherson v. Buick Motor Co. , 217 N. Y. 382, 111 N. E. 1050 (1916) A famous New York Court of Appeals opinion by Judge Benjamin N. Cardozo which removed the requirement of privity of contract for duty in negligence actions The plaintiff, Donald C.

MacPherson, a stonecutter, was injured when one of the wooden wheels of his 1909 “Buick Runabout” collapsed. The defendant, Buick Motor Company, had manufactured the vehicle, but not the wheel, which had been manufactured by another party but installed by defendant. It was conceded that the defective wheel could have been discovered upon inspection. The defendant denied liability because the plaintiff had purchased the automobile from a dealer, not directly from the defendant. The portion of the MacPherson opinion in which Cardozo demolished the privity bar to recovery is as follows: If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequence to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we need to go for the decision of this case . . . . If he is negligent, where danger is to be oreseen, a liability will follow” Donoghue v. Stevenson [1932] The case of Donoghue v. Stevenson [1932] illustrates the law of negligence, laying the foundations of the fault principle around the Commonwealth. The Plaintiff, Donoghue, drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer, Stevenson in Scotland. While drinking the drink, Donoghue discovered the remains of an allegedly decomposed slug. She then sued Stevenson, though there was no relationship of contract, as the friend had made the payment.

As there was no contract, the doctrine of privity prevented a direct action against the manufacturer. In his ruling, justice Lord MacMillan defined a new category of delict (the Scots law nearest equivalent of tort), ( based on “implied warranty of fitness of a product” in a completely different category of tort–“products liability”) because it was analogous to previous cases about people hurting each other. Lord Atkin interpreted the biblical passages to ‘love thy neighbour,’ as the legal requirement to ‘not harm thy neighbour. He then went on to define neighbour as “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question. Reasonably foreseeable harm must be compensated”. This is the first principle of negligence. Breach of the Duty The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty.

The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person [objective] in the same situation would clearly have realized, also breaches that duty. Breach of duty is not limited to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property. A person who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care.

An example is shown in the facts of Bolton v. Stone,[5] a 1951 legal case decided by the House of Lords which established that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside her house. Cricket balls were not normally hit a far enough distance to pose a danger to people standing as far away as was Miss Stone.

Although she was injured, the court held that she did not have a legitimate claim because the danger was not sufficiently foreseeable. Causation For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one’s breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred but for, or without, the accused party’s breach of the duty owed to the injured party.

Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused. Sometimes causation is one part of a multi-stage test for legal liability. For example for the defendant to be held liable for the tort of negligence, the defendant must have (1) owed the plaintiff a duty of care; (2) breached that duty; (3) by so doing caused damage to the plaintiff; and (4) that damage must not have been too remote. Causation is but one component of the tort.

On other occasions causation is the only requirement for legal liability (other than the fact that the outcome is proscribed). For example in the law ofproduct liability, the fact that the defendant’s product caused the plaintiff harm is the only thing that matters. The defendant need not also have been negligent. On still other occasions, causation is irrelevant to legal liability altogether. For example, under a contract of indemnity insurance, the insurer agrees to indemnify the victim for harm not caused by the insurer, but by other parties.

Where establishing causation is required to establish legal liability, it is usually said that it involves a two-stage inquiry. The first stage involves establishing ‘factual’ causation. Did the defendant act in the plaintiff’s loss? This must be established before inquiring into legal causation. The second stage involves establishing ‘legal’ causation. This is often a question of public policy: is this the sort of situation in which, despite the outcome of the factual enquiry, we might nevertheless release the defendant from liability, or impose liability?