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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 39 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

faute d’action

faute d’omission

T. Eaton Co. of Canada v. Moore, [1951] S.C.R. 470. (CB2p7)

Jurisdiction

Quebec

Facts

A customer at Eaton’s department store dropped a glass bottle of lotion which shattered on the marble floor. About a minute later, Moore came along, slipped on the patch of lotion, and injured herself. In the interval between these two events, Bernard, an Eaton’s employee who was selling clocks at a nearby counter, noticed the spill and phoned the caretaking department, but did nothing else to prevent customers from stepping on the spill. The accident happened before the employee of the caretaking department arrived, about three minutes after the spill.

Issues

Was Bertrand at fault for his omission, of not preventing customers from slipping?

Holding

No.

Ratio

Rinfret J, for the majority, found that the time between the fall of the bottle and Moore’s slipping was so short as to preclude fault. Eaton’s system of housekeeping was (more than) reasonably efficient, and therefore Eaton’s could not be found to be at fault. Since Betrand was a clock salesman, the floors were not his problem.

Taschereau J, concurring, held that it would be impossible to foresee and prevent all accidents. Given that this was a case of the responsibility of the “master” for the fault of the “servant,” the fault of the “servant” is required, and Taschereau J. did not find it.  

Estey J and Cartwright J dissenting, argued that Bertrand had a duty to take positive action. Among other things, Estey J pointed out that the burden of precautions would have been very slight.

Comments

There was a strange insistence here on the question of a “duty” to act. This language was borrowed from common law. Civil law should have talked about a general duty.

In the case of Valvalkenburg v. Northern Navigation Co. (1913), an Ontario court exonerated a captain who did nothing to rescue a sailor who had fallen overboard. It held that the captain had a moral duty but no legal duty to rescue the drowning man, and was thus not liable.

From the mid-20th century onward, the common law’s attitude changed in certain situations. This was due to:

greater concern for personal security

a shift toward collectivist principles

increased judicial willingness to turn moral obligations into legal obligations

There was still no general obligation to act, but exceptions were made for certain circumstances, especially if there was a special relationship between the parties.

Crocker v. Sundance Northwest Resorts, [1988] 1 S.C.R. 1186. (CB2p17)

Jurisdiction

Ontario

Facts

Crocker was paralyzed in an accident in a “tubing” competition, a dangerous sport in which competitors slide down ski slopes in inner tubes. Crocker was visibly intoxicated (falling down) at the time of the competition. Sundance employees asked him if he was in a condition to participate, and “suggested” to him that he shouldn’t participate, but did nothing to stop him from participating. In fact, when he dropped his inner tube and it slid down the hill, they provided a new one for him.

Crocker had signed a waiver as part of the entry form, but the waiver was not drawn to his attention; he thought he was just signing an entry form.  

Issues

1. Did Sundance have a legal duty to take positive steps to prevent Crocker from sliding down the hill?

2. Had Crocker voluntarily assumed the risk?

3. Was Crocker contributorily negligent?

Holding

1. Yes.

2. No.

3. Yes.

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