TORT QUESTION 1:
A seven-year-old boy followed his dog into Mr. Howe’s backyard. The boy fell into a large hole dug by Mr. Howe in preparation for a tree that had been ordered. The boy broke his arm in the fall. At the hospital a doctor employed there for four years treated the boy. The doctor did not set the boy’s arm because he failed to see on the x-ray and indication that the arm was broken. The arm healed improperly. When the boy kept complaining, his parents took him to the family doctor that discovered the break. The boy had his arm re-broken so that it could be set properly. On these facts, discuss the following: a)
Was the boy a trespasser? If so, does this mean that the owner of the land did not owe the boy a duty of care?
A legal definition of “trespasser” is “one who intentionally and without consent or privilege enters another’s property”. (Black’s Law Dictionary).
Trespassing on another person's property is one of the oldest parts of the common law. It is what is known as a "tort", or a wrongful act. Children under the age of 12 cannot are exempt from trespassing charges.
If the trespasser is a child, a court will look at whether the use was alluring to a child and if the occupier knew that a child, or any child, might likely become a trespasser. In these circumstances, the court will look at the age of the child; the child’s ability to appreciate danger and the burden on the occupiers to eliminate the danger or protect children from danger as compared to the risk of the danger to children.
Where the occupier knows, or has reason to know, that a child is on its premises, and that the premises create a danger of serious bodily harm to that child, the occupier owes a duty to that child to take such care as in all the circumstances of the case is reasonable to see that the child will be reasonably safe from that danger.
The owner of real property (real estate) is responsible for the health and safety of any who enter, including: 1.Those entering legally, 2.Trespassers (illegal entrance).
As stated in Occupiers' Liability Act, RSA 2000, c O-4:
13(1) When an occupier knows or has reason to know
(a) that a child trespasser is on the occupier’s premises, and
(b) that the condition of, or activities on, the premises create a danger of death or serious bodily harm to that child, the occupier owes a duty to that child to take such care as in all the circumstances of the case is reasonable to see that the child will be reasonably safe from that danger.
(2) In determining whether the duty of care under subsection (1) has been discharged, consideration shall be given to
(a) the age of the child,
(b) the ability of the child to appreciate the danger, and
(c) the burden on the occupier of eliminating the danger or protecting the child from the danger as compared to the risk of the danger to the child.
(3) For the purposes of subsection (1), the occupier has reason to know that a child trespasser is on the occupier’s premises if the occupier has knowledge of facts from which a reasonable person would infer that a child is present or that the presence of a child is so probable that the occupier should conduct himself or herself on the assumption that a child is present.
Yes, the boy was a trespasser, according to Ontario law though the defence could be that the boy had no control by following his dog. The owner of the property failed to take precaution step to avoid danger for the child, such as erecting a fence around the hole. Mr. Howe should act carefully toward people who he can see are put at risk by his behaviour. The owner of the property owes a duty to the boy who was harmed by his conduct. Mr. Howe, can hold liable for injuries of the boy. Also, in our case the injury was...
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