Negligence Assignment: Identifying a Potentially Negligent Situation and Analyzing Its Elements

Task One: Identifying a Potentially Negligent Situation

Negligence is the most commonly encountered tort.  Fortunately, most conduct that falls below ‘the standard of a reasonable person’, ends up being a benign event with no harmful result.   For example, those left turns when the traffic light is yellow, or that icy patch on our sidewalk!

The purpose of this assignment is to look critically at your surroundings and identify a situation that could, if someone were hurt or were property damaged, be the basis for a negligence lawsuit.  

1. Critically scan your environment and document a  potentially negligent situation by taking photos or making a short video.   You can accompany your photos with comments or include some dialog with your video to explain to the reader/listener (myself), your concerns about the particular situation.   Please ensure that you do not video or photograph any individuals in an identifiable way (unless they consent – such as helpful friend or family member).  

Also, do not trespass or otherwise interfere with the privacy of others.  You should be able to find many situations that raise the possibility of negligence (ex.  slippery floor, open construction site, traffic behavior, potentially unsafe product) etc.  Be creative and use your imagination!

2. Analysis

1. Who might be the potential plaintiffs.

2. Who might be the potential defendants.

3. Choose one of the plaintiffs and one of the defendantsyou have identified

.

For each of the three elements of negligence, Part 1, Part 2 and Part 3 from Module 20, discuss what the plaintiff would have to prove to be successful and win the lawsuit.

Ensure you discuss the applicable legal tests and the arguments that would be made by both the plaintiff.  You should also consider any counter argument  (s) that might be made by the defendant.   

Part I :   When you analyze Part 1, remember that if the courts have already imposed a duty in a similar prior case, then it is not necessary to analyze A (reasonable foreseeability), B (proximity) and C (no policy concerns).   You are free to assume that there are no previously decided cases and go ahead and analyze A, B and C.   Alternately, if you would like to conduct some legal research and see if there is already precedent case for imposing a duty in the situation you are analyzing, then you can access Canadian cases on this website:  https://www.canlii.org/en/.   If you find case where the court imposed a duty of care in a similar case, make sure you provide a link to the case in your assignment and explain why you think the case is similar.  

PART 2:  When you analyze Part 2, make sure you discuss the sort of factors that a reasonably prudent person would take into account (ie, likelihood, potential magnitude of the harm and the cost of avoiding the risk).  Again, consider any counter-arguments that might be open to the defendant to argue he or she did meet the standard of a reasonable person.

PART 3:   When you analyze Part 3 (causation), make sure that you estimate or discuss the extent of the potential harm/losses (ie. $ amount) that you think could theoretically be incurred by the plaintiff you have identified.  Consider also whether there might also be losses a plaintiff might suffer that would not be compensable (for example, because they are not reasonably foreseeable and too remote, or because they would be pure economic loss).

1. Outline any defences that might be available to the defendant and provide your opinion on whether the  defendant would be successful in proving the defence.  Ensure to provide your reasons.  If you think that the plaintiff would be found contributorily negligent, indicate what percentage of fault might be attributed to the plaintiff and your reasoning.

1. Risk Management

Assume you are the defendant you identified for part c.  How could you minimize this sort of risk?  Are there any ways the defendant could shield themselves from risk – for example, would a waiver be possible in this case? Insurance?

Video – if you decide to make a video, make sure you provide me with a way to access it and please test it to make sure it works!Grammar and spelling count!  

Please structure the written part of your assignment using the numbered paragraphs and headings set out below: