Law Essay

Topics: Contract, Tort, Law Pages: 5 (1822 words) Published: March 4, 2013
Question 1

When a case of negligence is filed, three elements must be proven and justified in order to sustain a lawsuit. These three elements include: i) Defendant owed a duty of care to plaintiff
ii) Defendant breached the duty of care
iii) Defendants breach of duty caused injury or damage to plaintiff

There are several parties of defendants involved in this case including Bart, the owner of 1 Main Street, the initial property where the fire broke out; Provincial Insurance Inc. for the lack of clarification on its insurance policy, and potentially the fire department for not responding promptly. Putting aside the fire department and the insurance company for further discussion, in the case for Lisa taking action against Bart, there are sufficient grounds to argue with. Brat owed a duty of care to the adjoining buildings by making sure his actions (or lack of action) do not cause any consequential damages to his surroundings, even after acknowledging that his property was frequented by teenagers and transients. Brat not only ignored the situation, he had stopped locking the shed since there wasn’t much stored and had been broken into many times. Given a reasonable person, further action would be taken to prevent injuries or damages, such as adding an extra lock, or notifying the police of potential trespassers. Lisa could potentially challenge the fact that Brat hasn’t taken any action in installing the alarm and sprinkler system that was ordered by the City. However this will be make a weak case and most likely will not withhold in court given that fact that Brat has until August 7 to do so. (Noted that the fire broke out on August 1) By being careless and reluctant, Brat broke the duty of care when he gave up caring about his property and the surrounding properties by not locking his shed. Lastly with the third element, Brat (defendant,) although not causing physical injury to Lisa (plaintiff,) still caused damages to her property. The three elements are fulfilled and by proving these three elements, Lisa can discharge the burden of proof which would proceed onto the defendant’s negligence. Now Brat, can argue back and use certain defenses to defend himself. He can argue that Lisa took a voluntary assumption of risk, by not removing the contents in her shop when the fire broke out. However, such defense is fairly weak for this case given that voluntary assumption of risk argument are based on the “all or nothing” principal; thus it would not be advisable for Brat to base his argument on this defense. Brat can try to use the defense of remoteness. He can argue that the damages sustained to Lisa’s property are too remote to be connected to him. There was no way possible for him to have prevented the fire from spreading causing the damage. The best defense that I would suggest for him would be Contributory Negligence. Brat can admit that by being reckless and letting trespasser on his property was his mistake, as that started the chain of events that cause damages to the entire district of 38 buildings. However the blame should also be shared by Lisa for not removing her content in her store, along with the insurance company and the Fire department. As mentioned, one of the responsible parties includes the Fire Department. Since the firefighters are professionals in the field, they should have taken the appropriate approach. If they followed the correct technique and procedure, Lisa would not have suffered the damages. When it comes to professional negligence, the question is what would have a reasonable professional done. Being a firefighter, knowing the quickest route to the fire scene is crucial. In this case, the 911 dispatcher failed to acknowledge the change of one way street to 2 way traffic, resulting in a total delay of 13 minutes. For professions such as firefighter, this mistake could have been avoided and the fire would not have spread as fast and as far. On top of that, upon arrival, the...
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