Tort Law

2. The Duty to Control the Conduct of Others
a) LIABILITY FOR THE INTOXICATED
Jordan House Principle: when profiting from an activity, owe a diuty of care towards visibly intoxiacted patrons
Crocker v Sundance Resorts: does a ski resort have an affirmative duty to prevent a visibly intoxicated person from competing in a dangerous tubing competion?
(TC: duty, AC: no duty, SCC: appeal allowed sent back to trial)
Duty of Care?: rel’n of proximity, competion for financial gain
Standard of Care? ski resort did fully explain risks, breach if standard to allow a drunken              person to compete
Voluntary Ass’n of Risk?- difft to argue due to intoxicated state of D, even though a               waiver was signed (D had no reasonable groinds upon which to               believe that signing of waiver was a genuine expression of intent)
Contirb Negt? 25%
*key points to decsion: commercial context (econ beinift analyisis) and part’n in creation of peril
care towards visibly intoxicated patrons

b) OTHER DUTY TO CONTROL SITUATIONS
- in the absence of legal power or authority to control, there is no legal duty to control (note list of relationships of control or supervision outlined above)
c) THE DUTY TO PREVENT CRIME AND PROTECT OTHERS
Rule: in certain circumsances private law duty of care will be imposed upon public individuals

Jane Doe v Metro Toronto Police:  did police have duty to warn P that a potential serial rapist was in the area?
- relied upon test in Kamploops City v Neilson “policy decsions made by public officials will not attract laibilty in tort so long as they are reasonably and responsibly made. On the other hand when it comes to the implementation of policy decisions, piublic officials who owe a private law duty of care will be exposed to the same liabilty as others if they fail to take reasonable care in discharging their duties”
-held: although forseeability fof risk alone is not enough to impose duty, the narrow and distinct group of potential vicitms did give rise to a special rel’n leading to implsition of duty, case allowed to proceed (note use of Anns test)
3. The Duty to Perform Gratuitous Undertakings
Rule: once D begins to perform a gratuitous undertaking, he may be held liable for negligently injuring the P but if no performance is undertaken, even if promised, no liabilty will flow
Baxter v Jones (1903)
- 3 exceptions: estoppel/injurious reliance; neg’t/fraudulent/or innocent misrep’ns  inducing reliance; recharacterization as misfeasance

Smith  v Rae: a doctor and husband made a K to deliver wifes baby, but wife was not privy to K, so even though she relied on this K to her detriment, his not showing up was charecterised as a nonfeasance and he was held not liable

Rule: where a D undertakes a task to whihc he is under no duty to undertake, that D must not omit to do anything a reasonable perosn would do in performing that task
Zelenko v Gimbel Bros: shop owner undertook to assist a P who got sick in his store, liable in neg;ce for medical aid administered, a reasonable person would have called an ambulance, not kept him away form an infirmary for 6 hours, the guy died

Rule: if a person undertakes to perform a gratuitous act, he is laible if he performs it improperly, but not if he neglects to perform it
Solsby v Toronto - gate regularly manned by a watchman, on dat of accident it was not manned, in reliance on presence of watchman, deceased P crossed tracks and was struck by oncoming train - self imposed duty by D does not relieve P of duty to care for himself. (note: pre Neg’ce Act, today would probably be approtionment

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