Tort Law

LAW 272
Part A
Learning Objectives:

• What happens when a guest or someone we work with is

injured?

• What is a duty of care and who do we owe this duty to?

• How does the law apply to the hospitality industry?

• How does the law apply differently to intentional vs.

unintentional injuries?
Module 3:

● To define tort law

● To identify elements of negligence

● To assess duty of care in the hospitality industry

● To isolate factors that may reduce liability for breach of duty of care
Definition of Tort

An intentional or unintentional injury to the victims:

○ Body

○ Mind
○ Property
○ Pocketbook

The person committing the tort is called the Tortfeasor

Tort Law

Tort law imposes sanctions on those who stray beyond the

boundaries of reasonable or regulated noncriminal behaviour to
deter people from activities that pose a risk to others.
Tort law provides a method of seeking compensation by placing
the victim in the position they would have been if the tort had not
occurred.

Tort law applies to interpersonal, professional, and business relationships

Purposes of Tort Law

1. Regulation –maintained by government for the greater good

2. Deterrence – to serve as an example of what NOT to do

3. Compensation – to compensate those who have been wronged

4. Dispute resolution – to settle disputes that cannot be settled between parties
5. Education – to inform the greater population
6. Prevention – to prevent harm
Intentional Torts

There are 8 recognized types of intentional injury (torts)

1. Assault – the threat of serious unwanted touching

2. Battery – the act of serious unwanted touching

3. Trespass – unlawful entry upon property
4. Conversion – a person without authority wrongfully takes,
retains, or disposes of the personal property of another
Intentional Torts

5. False Imprisonment – confining or detaining someone

without lawful authority
6. Intentional Infliction of Mental Suffering – deliberately
causing mental suffering
7. Deceit – fraudulently misleading another
8. Intentional Interference with a Contract – i.e. urging someone
to breach a binding contract.
Intentional Torts Defences
1. Self Defence
2. Consent – voluntarily assumed risk by having knowledge of the risk and
accepting the risk
3. Defence of Property
4. Defence of a Third Person
5. Necessity – i.e. use of property belonging to another (access trail)
6. Legal Authority – stopping an unlawful act with the authority to do so
7. Lack of Intention – Must knowingly threaten or place in harms way to be
considered intentional
 Unintentional Torts (Negligence)

In the hospitality industry, most injuries we deal with as

managers are unintentional.
Innkeepers are held to a higher standard when it comes to
duty of care because of the vulnerability of guests. For
example: Negligence = a civil
■ Guests are staying in an unfamiliar location, often for
wrong arising from a
periods of days or more failure to take proper
■ Guests are likely surrounded by unfamiliar people
care
■ Guests may be travelling alone
Duty of Care

Everyone has a duty to take reasonable care to avoid causing

injury to anyone to whom a duty is owed.

Reasonable Person
The Reasonable Person Test – what would a careful,
thoughtful person in the same circumstances have done? Test
Duty of Care - Children

The Reasonable Person Test cannot be used on children.

A special relationship exists between an innkeeper and child
guests
Special Relationship
Children do not appreciate dangers that are obvious to more
mature persons. with
Innkeeper
Duty of Care - Children

Children have limited capacity to detect danger and protect

themselves from risk.
A potentially dangerous object or condition of exceptional
interest to young people is an attractive nuisance.
Attractive
An innkeeper may be liable if injury is caused by an object
Nuisance
that is likely to attract children.
Doctrine
i.e. pool toys that are within eyesight and accessible that
attract a child to a pool unattended.
Duty of Care - Seniors

Seniors fully appreciate the risks but they may be subject to

greater risks because of their age or physical condition

Innkeepers should pay greater attention to potential hazards Special Relationship

such as wet floors or frayed carpets that pose a greater risk with
of injury to a senior.
Innkeeper
 Unintentional Torts (Negligence)

There are four elements of negligence that all need to be present

for negligence to exist:
1. A duty of care is owed by the defendant

2. A breach of the duty of care occurred How do we know if

negligence has
3. An injury occurred to the plaintiff occurred?
4. There was proximate cause between the breach and the injury
 Unintentional Tort (Negligence) Example
Brown v. Marriott [2016]

“Brown slipped on a recently mopped floor in the hotel lobby and sustained injuries. The
accident was captured on security camera. The court noted that the plaintiff was in no
particular rush. The video depicted the plaintiff entering the lobby and speaking with a guest
services representative of hotel. While that conversation took place, a cleaner employed by
the hotel began to mop the area behind the plaintiff. The cleaner had placed one caution sign
in the area that was recently mopped. The Guest Services employee was aware of the
ongoing cleaning but did not mention it to the plaintiff, who was eventually directed to the
elevator which required that he walk through the recently mopped area of the floor. He
slipped and was injured.”

https://www.mondaq.com/canada/personal-injury/551710/occupiers-liability-claim-leaves-hotel-mopped
 Unintentional Tort (Negligence) Example
Brown v. Marriott [2016]

“The General Manager of the hotel gave evidence that the Guest Services representative was
required, as part of the hotel's protocol, to advise the guest of the recently mopped floor.
Moreover, the cleaner only placed one warning sign which did not accurately demarcate the
area of danger.

The hotel was found liable.

The takeaway: reasonable measures taken by an occupier to ensure safety usually requires
an inspection protocol in place. If they do not have one, or if they have one and do not follow
it, liability is likely to follow.”

https://www.mondaq.com/canada/personal-injury/551710/occupiers-liability-claim-leaves-hotel-mopped
 Unintentional Tort (Negligence) Example
Brown v. Marriott [2016]

The four elements of negligence:

1. The hotel owed a duty of care to the guest.

2. The hotel breached their duty of care by not ensuring the guest’s safety

3. An injury occurred to the guest

4. There was proximate cause since the injury was a direct result of not providing adequate
warning that the floor was wet.

All four elements are present therefore negligence occurred; however,

the injury was unintentional

Defences for Unintentional Torts

1. Act of God
2. Waivers and Disclaimers

3. Contributory Negligence
4. Last Clear Chance Exception #2 - #5 involve the
plaintiff’s own
5. Voluntary Assumption of Risk conduct
1. Act of God

Flood, Fire, Lightning

Example: A young adult is swimming in a hotel’s outdoor pool when a lightning

storm starts
The hotel does not close the pool and the person is struck by lightning
The hotel could try to use the defense that the lightning was an Act of God
2. Waivers and Disclaimers

Waiver: Contractual provisions whereby the one party

specifically agrees not to hold the other party liable in the
event of injury.

Disclaimer: One party is warned (usually in writing) that the

other party is not accepting liability.
3. Contributory Negligence

If a plaintiff is partly or solely the cause of his or her

own injury, the amount of compensation will be reduced
accordingly.
This defence is often used to reduce the amount of
damages awarded

i.e. if it was found that the defendant was 80% at fault

and the plaintiff was 20%, the plaintiff would be
awarded damages at 80%.
 Contributory Negligence Example
Nieto v. Bison Properties Ltd. (pg. 98)

Nieto was injured exiting the hotel on a step that was found to be an
unusual danger. The warning was not sufficient but she had already used
the step previously.
The hotel was found 75% liable, and the plaintiff was 25% contributorily
negligent.
4. Last Clear Chance Exception

Even if a plaintiff’s injuries are solely the result of their

own actions and they have no one to blame but
themselves someone else can still be held liable.
For example: if the plaintiff finds himself in a dangerous
position (even if the plaintiff is negligent) and the
defendant is aware of the danger, the defendant has a last
and clear opportunity to help avoid the injury by exercising
his own ordinary care. Failing to do so may leave him liable
for the injury.
 Last Clear Chance Exception Example
Alchimowicz v. City of Windsor, et al. [1997] (pg. 98)

Alchimowicz attended a birthday party, arriving at 9:00pm and drinking heavily

until after 1:00am. Some of his co-workers arrived later after 1:30am. At
3:00am, when the party was over, a number of guests decided to go to a nearby
beach. Alchimowicz was the only one who had been drinking excessively. When
the group arrived at the beach, Alchimowicz was asleep in the back of the car.
The group left him there and walked to the beach. Before they reached the
water, Alchimowicz ran past them, stripped to his shorts, and jumped in. He
played in the water for a while before going to join the others at the end of the
dock.
 Last Clear Chance Exception Example
Alchimowicz v. City of Windsor, et al. [1997] (pg. 98)

On his way he knocked a pair of sandals into the water. He said he would
retrieve them. The others told him not to bother but Alchimowicz climbed
onto the railing, ignored a shouted warning, and dove in. The water was four
feet deep. He slammed into the bottom and was rendered a quadriplegic.
Alchimowicz’s blood alcohol level was between 250 and 300 mg per 100 ml
of blood, a considerable amount.
Alchimowicz brought an action against the city (owner of the dock), the party
host, each of the guests who went to the beach, as well as the restaurant
they all worked together at.
 Last Clear Chance Exception Example
Alchimowicz v. City of Windsor, et al. [1997] (pg. 98)

None of the defendants knew how much Alchimowicz had drank over the
course of the evening. In the reasonable view of the defendants who had been
present, he had drank a controlled amount. Alchimowicz contended that the
defendants owed him a duty of care not to take him to such a dangerous
place given his state of inebriation. The court determined no such duty was
owed as they would have had to have known the extent of his intoxication.
The defendants had not witnessed excessive drinking, had not supplied him
with alcohol, had not made him drive, and had not made him dive.
The court ruled Alchimowicz’s injuries were not caused or contributed to by
the acts or omissions of any of the defendants.
5. Voluntary Assumption of Risk

A plaintiff who has participated in an activity knowing that

injury might result may be said to have assumed the risk
voluntarily.
5. Voluntary Assumption of Risk
One voluntarily assumes the risk when one participates
in an activity knowing of the risk. Elements of this doctrine are:
1. The plaintiff knew about the risk,
2. The plaintiff understood the risk,

3. The plaintiff had a choice to avoid the risk,

4. The plaintiff voluntarily assumed the risk, and
5. The defendant was not in breach of a statutory duty from which the
injuries flowed.
 Voluntary Assumption of Risk Example
Ball v. Hilton Hotels [1972]

Lorraine Ball had a reservation at a Hilton hotel. When she arrived she was informed by the
doorman that there was a downtown area electric power failure and there was no lighting
or elevator service in the hotel. The plaintiff checked her baggage and then inquired about
the washrooms. The doorman advised they were downstairs, it would be quite dark on the
staircase, and the plaintiff would not be able to see the doors to the restroom. The
doorman gave her a small, lighted candle and she proceeded downstairs. She fell down the
stairs and received injuries. In her complaint against the hotel she alleged that her injuries
were directly caused by the negligence of the defendant in inducing her to enter a
hazardous, darkened area of the hotel. The doorman testified that he told her of the power
failure and she corroborated his testimony.

The court determined the plaintiff assumed risk of injury and no settlement was allowed.
 Voluntary Assumption of Risk Example
Beauchamp v. Ayotte et al. (pg. 99)

Beauchamp drank several beer over an extended time. He left one licenced room
for another upstairs in the hotel. He was familiar with the staircase. After an
argument, he left the second room and fell on the staircase, fatally injuring
himself.
The court found the deceased 40% liable and the hotel 60% liable.

What should the hotel have done to avoid liability?

 Voluntary Assumption of Risk Example
Harwood v. Westview Holdings Ltd. (pg. 100)

An employee fell down a staircase. The staircase had been used for years without
mishap.
The court found the plaintiff had accepted the risk of using the staircase and the
hotel was not found liable.
How do we apply the law?

We follow the rule of law…

Causation
…what/who caused the situation?

Burden of Proof
…who must prove their position?
Causation & Burden of Proof

1. Foreseeability and Proximate Cause

2. Thin Skull Rule

3. Res Ispa Loquitur (“The thing speaks for itself”)

4. Negligence Per Se
5. Exceeding Regulatory Minimums

6. Conditional and Strict Liability

1. Foreseeability & Proximate Cause

Must prove that the act, or failure to act was reasonably

foreseeable and was the proximate cause of the injury.
Liability is conditional.
2. Thin Skull Rule

A tortfeasor who can reasonably foresee some injury as a

consequence of his or her conduct may be liable for more
serious consequences than he or she anticipated.
3. Res Ipsa Loquitur

“The thing speaks for itself”

Elements:

1. Injury caused would not normally have occurred if without negligence

2. What caused the injury was within the defendant’s control
3. The plaintiff did nothing to provoke the accident

4. The plaintiff had no prior knowledge of the danger

When these elements are present, the burden of proof shifts to the defendant
 Res Ipsa Loquitur Example
S. v. J.M.I. (pg. 93)

A family suffered food poisoning after eating pizza. They had to establish that
they became ill likely from eating the pizza and they had not brought about their
illness by mishandling the pizza.
They established a case of negligence on the basis of Res Ipsa Loquitur (they
were unaware of the danger) which shifted the burden of proof (evidence) to the
defendant.
J.M.I. could not prove that it had not been negligent.
All circumstances pointed to the defendant’s negligence, yet no proof was
provided by the plaintiff. The injury happened so “the thing speaks for itself”
4. Negligence Per Se

Failure to meet the requirements of law

Example:

A hotel must have an adequate fire alarm system. If it fails,

the hotel may be liable.
Failure to abide by the fire code is negligence per se.
5. Exceeding Regulatory Minimums

Government regulations are only minimum requirements.

Meeting minimum requirements may not be sufficient to meet the
court-imposed standard of care.

A hotel deals with many more people than other businesses and often
are required by the courts to go beyond minimum requirements.
Example: Appropriate precautions must be taken for swimming pools
It is key to meet or exceed minimum regulations for standards
of care as they evolve in the courts.
6. Strict Liability

If a business is involved in activities that are considered

hazardous, under strict liability, they will be held liable
regardless of whether or not there was negligence.
By being involved in hazardous activities they are
automatically responsible for anything that happens.
 Strict Liability Example
Lambert v. Lastoplex Chemicals Ltd. (pg. 96)

Product packaging contained a warning to not use the product near an open
flame, but the warning did not mention pilot lights. As a pilot light caused the
explosion, the manufacturer was liable. It is very difficult for purveyors of
hazardous products to escape liability. The attitude of the courts is that
insurance should be used to spread the risk of these otherwise useful products
throughout the population.
Review

1. Regulation
2. Deterence
3. Compensation
4. Dispute Resolution
5. Education Purposes of
6. Prevention Tort Law
Review

1. Assault
2. Battery
3. Trespass
4. Conversion
5. False Imprisonment Intentional
6. Intentional Infliction of Mental Suffering Torts
7. Deceit
8. Intentional Interference with a Contract
Review

1. Self Defence
2. Consent
3. Defence of Property
4. Defence of a Third Person
5. Necessity Defences for
6. Legal Authority Intentional Torts
7. Lack of Intention
Review

Four Elements of Negligence:

1. Duty of care owed

2. Breach of the duty of care Unintentional Torts
3. An injury occurs
(Negligence)
4. Proximate cause between the injury and the
breach of duty
Review

1. Act of God
2. Waivers and Disclaimers
3. Contributory Negligence Unintentional Torts
4. Last Clear Chance Exception (Negligence)
5. Voluntary Assumption of Risk Defences
Review
1. Foreseeability and Proximate Cause

2. Thin Skull Rule

3. Res Ispa Loquitur (“The thing speaks for itself”)

4. Negligence Per Se Causation &

5. Exceeding Regulatory Minimums Burden of Proof
6. Conditional and Strict Liability

We apply the law by following the rule of law about what caused the issue
and who has to prove their case
References

● Longchamps, D., Wright, B. (2007). Canadian Hospitality

Law: Liabilities and risk. (3rd edition). Thompson Canada

● https://www.mondaq.com/canada/personal-
injury/551710/occupiers-liability-claim-leaves-hotel-
mopped
 Thanks!
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