Section 3: Procedures, Issues, and Careers

Parental Liability

Earlier in this course, the issue of the responsibility of parents for torts committed by their children was touched upon. In most provinces, parents aren't automatically liable for their children's torts, but they do have a duty of care of a reasonably prudent parent living in the same community. In some cases, however, parents are held vicariously liable for their children's torts; this occurs when the children are engaging in inherently dangerous adult activities such as driving a snowmobile.

In recent years, some Canadian jurisdictions (but not Alberta) have passed legislation making parents liable for injury resulting from their children's intentional torts, things like vandalism, for example. But if the parents can establish that their children's actions weren't deliberate, the courts won't hold them liable.

Host's Liability

Another challenging issue in the area of negligence law is the liability of establishments that serve alcoholic beverages, and of companies and private individuals who serve alcohol at functions and parties they host, for damage caused by patrons who drink too much. Those who support this idea point out that it makes owners of establishments and their employees and hosts of parties, far more careful about serving people who are becoming intoxicated; and it increases their incentive to supply alternative transportation home for inebriated customers and guests. This will save lives. Supporters also point out that establishments that serve drinks and companies that host parties are more likely to have the funds to compensate third parties than are customers who caused the injuries. Of course, this argument doesn't apply to private parties.

On the other hand, opponents say all this puts an unfair and unworkable responsibility on the owners of lounges and restaurants and their employees as well as on companies and private hosts, and makes them responsible for the negligent behaviour of others. A law of this sort could put some lounge owners out of business.

Today, the liability of businesses providing alcoholic drinks is well recognized. The courts expect these businesses to have a duty of care to prevent customers who are drunk from driving. The whole issue becomes even more interesting, however, when you extend the concept to individuals entertaining others in their homes, an issue not yet well worked out by the courts. Imagine a person who has a guest over for a social visit and serves that guest alcoholic drinks. The host politely offers more drinks, and the guest accepts. Eventually, the guest becomes intoxicated but decides to drive home anyway. On the way, the guest runs a red light and kills a pedestrian. Should the host who served the drinks be held liable in part for this occurrence?

Absolutely! If you get someone drunk in your home and then allow that person to operate a car, you've acted irresponsibly and you certainly should be liable. The damage was certainly foreseeable by a reasonable person.

Yes, but in the real world that can be very difficult; I mean this is a guest. Do you refuse guests if they ask for refills? Can you grab their keys — their property — and refuse to let them drive? You might not have any friends left soon.

I disagree. You're doing them a real favour if you cut them off. Besides we're talking about a fatal accident here! Personally, my solution is simply not to serve alcohol at all. That solves the problem, and everyone is better off.

Contingency Fees

Another interesting issue in the area of tort law is that of contingency fees . Traditionally in tort actions, the losing party has been required to pay the legal fees and court costs of the winning side ? along with whatever damages are awarded. This can be ruinous, and it clearly deters some people from going to court. Sometimes in long, expensive cases, this problem is solved by taking some of the costs from the damages awarded the plaintiff; at times, though, this leaves the plaintiff with little to show for winning a case.

The contingency fee system is designed to rectify this problem. According to this system, now in place across most of the country, the lawyer for the plaintiff agrees, before the case, on a percentage of the damages awarded, if the plaintiff loses, the lawyer receives nothing.

Of course there are many other issues currently challenging the legal experts in the area of negligence law, but few you've looked at should give you a feeling for the sorts of debates that can emerge. Keep your eye on the newspapers and see if you can spot any interesting discussions going on. Negligence law is one of the most interesting legal areas for debates of this sort and the issues that do emerge usually affect almost everyone in one way or another.