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Law 12Tort LawMs. Ripley

Tort Law Cases from PLEA

Student Handout 3.4 - McErlean v. Sarel Case Study

The Facts

McErlean, age 14, was riding a trail bike in an abandoned gravel pit owned by the City of Brampton. The gravel pit was a place that was popular among local trail bike riders. As McErlean raced down a smooth gravel road, he and another boy, Sarel, collided at a sharp, blind curve in the road. McErlean had been riding at speeds from 55 to 80 kilometres an hour. Sarel had difficulty controlling his bike and was driving on the wrong side of the road. McErlean suffered brain damage that left him paralyzed and unable to speak.

McErlean sued Sarel for negligence, and the City of Brampton for negligence as owners of the property.

Questions on Consider

  1. What standard of care applied to the boys while riding their trail bikes?
  2. Was McErlean negligent in racing his trail bike on the road at the gravel pit? Was Sarel negligent?
  3. Was the City of Brampton, the owner of the land, responsible because it allowed an unusual danger (the gravel road with the curve in it) to exist?
  4. How would you decide this case and why?

The Judge’s Decision

The trial judge found Sarel negligent and held that the City of Brampton was also responsible. The City had allowed an unusual danger, the blind curve, to harm McErlean. McErlean was also responsible too; his fault was set at 10%, Sarel’s at 15% and the City’s at 75%.

The City of Brampton appealed. On the appeal the City argued that the blind curve was not an unusual danger.

The Court of Appeal overturned the trial judge’s finding that the City was not liable. It held that the road was not an usual danger for its users. The boys were not young enough to make it an unusual danger for them. Also, the boys had been engaged in an adult activity, so their conduct would be measured against adult standards.

The Court of Appeal found the boys were each 50% at fault.

(Source: Public Legal Education Association of Saskatchewan. Reprinted with permission.)

Student Handout 3.5 - Robertson v. Butler Case Study

The Facts

Derrick Robertson, Matthew Butler and several other friends were riding motorized trail bikes. The back brake of Matthew’s trail bike was not working. During the afternoon the front brake lever dislodged. One of the boys wedged it back in place, but the rider still had to hold it in place. All the boys were aware of this. Derrick borrowed Matthew’s bike and began riding it down a hill. The brakes failed; he hit a rock and broke his arm and leg. He and his parents sued Matthew’s parents for damages.

Questions on Consider

  1. What standard of care would you expect a 14-year-old to use when operating a motorized trail bike? On rocky terrain?
  2. Would that standard of care change if the trail bike drivers were only ten years old?
  3. Would that standard of care change if the young people involved were riding go-carts? Skateboards? Bicycles?
  4. Were Matthew’s parents liable for not ensuring that the bike was used safely?
  5. How would you decide this case and why?

The Judge’s Decision

The judge held that Derrick and Matthew were both liable for Derrick’s injuries. Matthew was partly responsible for Derrick’s injuries, and Matthew’s parents failed to supervise and control Matthew’s actions. It was their responsibility to train Matthew to operate a trail bike properly and to ensure that he would obey their instructions. They did not do this; they were found liable for 25% of Derrick’s injuries.

Ordinarily the standard of care expected of a child depends on the age, intelligence and experience of the particular child. The court also considers the kind of activity in which they are engaged. The judge held Derrick to an adult standard because driving a trail bike is an adult activity. Derrick’s conduct in driving the trail bike did not meet this standard. The judge said Derrick should have checked the brakes before starting down the hill. He was held 75% at fault for his own injuries.

More Questions to Consider

  1. In this case Derrick recovered only 25% of his damages from Matthew’s parents. Damages were assessed at about $16,000; therefore, Derrick recovered only $4,000. Was it a good idea to sue in this case?
  2. What other options could Derrick and his family have considered?

(Source: Public Legal Education Association of Saskatchewan. Reprinted with permission.)

Student Handout 3.6 - Poirier v. Murphy Case Study

The Facts

Peter Poirier and John Murphy, both 18 years of age, agreed to carry out a "stunt." The stunt was performed in an underground parking garage. Peter stood underneath a water sprinkler pipe. After Peter nodded, John began driving his car from about 100 feet away and, at the last moment, Peter would jump up, grab the pipe, do a chin-up, swerve his hips and legs to one side and clear the car. Drinking was not involved. The stunt was performed as a form of amusement for Peter and John, and a group of their friends who were in the car with them.

The stunt was performed safely a first time, but the second time Peter was not prepared for it. Peter was hit by the car and injured. He became unconscious, suffered a brain injury, and underwent lasting personality and emotional changes.

Questions to Consider

  1. Did Peter knowingly assume the risk of harm when he agreed to carry out the stunt?
  2. Was John negligent? Did he fail to take proper care to avoid harm to Peter?
  3. Did Peter contribute to his own injuries by not taking reasonable care of himself?
  4. How would you decide the case and why?

The Judge’s Decision

The judge held that Peter had given up his right to sue for negligence the first time the stunt was performed, because he willingly assumed the risk of harm. The second performance of the stunt was different because Peter was not ready to perform the stunt. Peter did not assume a risk until he nodded his approval, and he did not do so for the second run.

Both Peter and John were negligent. John was negligent because he owed a duty as the driver of the car to take care. He should have realized that Peter was not ready for the second stunt. John was 2/3 at fault.

Peter was also partly responsible for his own injuries. He was negligent in agreeing to do the stunt and in not removing himself from the risk of harm before the second stunt. Peter was 1/3 at fault.

(Source: Public Legal Education Association of Saskatchewan. Reprinted with permission.)

Student Handout 3.7 - Wilkins v. Allaby Case Study

The Facts

Five-year old Donald Wilkins ran into the street from the sidewalk near a crosswalk, and was struck by a car driven by Hellen Allaby. Donald, accompanied by a day-care teacher and three other children, was returning to the day-care centre after an outing to a toy store.

At the time of the accident Donald was five years and ten months old. He walked to the day-care centre with his mother and crossed busy streets to get there. He often went on supervised walks from the day-care centre and crossed busy city streets, including the street where the accident occurred. Donald was bright, intelligent and experienced.

Hellen Allaby saw the children beside the road, but she did not reduce her speed.

Questions to Consider

  1. Can a five-year old child be held responsible for contributing to his own harm?
  2. What things should be considered in deciding whether a young child is responsible or not?
  3. How would you decide this case and why?

The Judge’s Decision

The driver of the car, Hellen Allaby, was liable for damages caused by her negligent driving. She had seen the children on the sidewalk, but had not reduced her speed. There is a heavy responsibility on the driver of a car when she or he is aware that children are waiting to cross a busy street. Because the driver had not reduced her speed, she was at fault.

A young child should be judged by standards appropriate for a child of similar age, intelligence and experience. Donald was a child of average intelligence, and was experienced in crossing city streets. Children are not held to adult standards of care. But a child such as Donald might be expected to take care not to cross the street when cars are coming. A child who had no experience crossing city streets, or a younger child, would not be held to the same standard.

(Source: Public Legal Education Association of Saskatchewan. Reprinted with permission.)