Please use the following technique:
– Outline the legal issues that you are going to discuss in your answer
– Define the legal rules that are relevant to the question
– Apply the legal rules to the facts of the question
– Formulate a decision of which party should be successful
The use of headings for each relationship discussed is suggested.
Application of legal principles to the facts is the most important and often the hardest step. I am more interested in how you arrived at your answer, than the actual conclusions that you draw. Having said that, the “kitchen sink approach” is not suggested – i.e. spilling all of your knowledge that is vaguely related to the issue raised into your answer.
Please do not simply say, “Andrew is liable for negligence.” You must go through the analysis for why or why not a particular tort claim will be successful.
Use the language of the question.
Be as comprehensive and thorough as possible when responding to each issue – canvas all possible answers. If you have considered the application of a particular contractual concept, but after analysis, you have decided that it is not applicable, please go through your analysis.
If any possible remedies are available to either party, please identify with supporting reasons.
Assume for each relationship that the matter is being litigated in court, not through alternative dispute resolution.
DUE: TUESDAY MARCH 24th, 2015 at beginning of class
No midterms will be accepted after this date.
Tort Law Problem
Andrew Black is the owner of Confederation Mall (“Mall”) located in New Minas, Nova Scotia. Mr. Black leases out many retail spaces in the Mall to a wide range of businesses. He prides himself as a local success story. The people of New Minas truly admire his entrepreneurial success.
George Orange, owner of Guppy World, a pet fish store, has been a long-time tenant of Confederation Mall. Colin and Darren work for Mr. Orange. Colin was repairing a ceiling fan when he asked Darren to toss him a screwdriver, as Colin was up on a step-ladder at the time. Darren, standing 15 feet away, underhand tosses the screwdriver to Colin. Darren overshoots the toss and the screwdriver shatters a glass fish tank containing a piranha fish. At the same time a customer, Sally, was walking towards the check-out to purchase fish food, when she slipped on the water from the broken tank, fell to the floor and fractured her wrist. She is also bitten on the ankle by the piranha. When Mr. Orange tried to assist Sally, he smelled a strong smell of alcoholic beverage coming from her mouth. Colin noted that Sally appeared to be staggering slightly before falling.
Sally was transported to the hospital by paramedics. The doctor determines that Sally’s foot needs to be amputated due to the piranha bite and she needs to wear a cast on her wrist for 6-8 weeks due to the fracture.
Word of the piranha bite spreads like wild fire throughout the Mall. Evelyn, who suffers from ichthyophobia (fear of fish) was shopping in nearby Shoe World. Upon hearing of the bite, she begins to hyperventilate and then faints, hitting her head on the tile floor, causing a laceration requiring stitches and a mild concussion. She undergoes psychological counseling for four months as a result of this incident, paid for out-of-pocket.
Meanwhile, Mr. Black wishes to expand his stranglehold on the Annapolis Valley shopping scene. On the outskirts of Wolfville, a vacant lot is on the market. Mr. Black and John Brown, owner of the lot, all but agree upon the terms of the purchase and sale of the lot; however, Mr. Black wants to consult an engineer before finalizing the deal, raising concerns whether the lot was a safe site upon which to build a large shopping mall. Mr. Black hires Joe White, a local engineer and land-use planner, who came highly recommended by Mr. Brown.
“This is the best land you’re going to find in the Valley! This ground is as solid as a rock!” said Mr. White. Mr. Black was satisfied with Mr. White’s advice, so he finalized the purchase of the lot the next morning with Mr. Brown. The purchase price was $750,000.
Little did Mr. Black know, Mr. White knew the lot was faulty all along. About two weeks prior to Mr. Black’s discussions with Mr. White, a deal for the purchase and sale of this lot ended prematurely when the then purchaser hired an independent engineer who advised that the land is a “sink hole”, which would result in any structure built upon that lot incrementally sinking into the ground over time. Further, Mr. White has been working in-house for Mr. Brown for the past 5 years.
Before learning of this information, Mr. Black hires Valley Construction to build a shopping mall on the newly purchased lot. After excavation of the topsoil, Bill Green, President of Valley Construction advises Mr. Black that the land is not suitable for construction as the ground is too soft. Mr. Black is furious! “What do you mean!? White told me the land was solid!”
Mr. Black immediately marches over to Mr. White’s home a short distance away and kicks down his front door. Mr. Black enters and observes Mr. White seated in the kitchen with his wife and two children. Mr. Black grabs Mr. White by the shirt collar, stating “you liar! What kind of engineer are you!?” Mr. White tells Mr. Black to get out of his house: “you were not invited here!” Mr. Black closes his fist and punches Mr. White in the face, breaking his nose. Mr. White’s 14-year-old son, Jimmy, suffers nervous shock as a result of seeing his father punched. Jimmy misses one month of school, has to undergo counseling, and is unable to participate in figure skating training.
Mr. White is discharged from the hospital the next day. Still fuming over his broken nose, he attends the Valley Radio studio and disparages Mr. Black on the air: “boycott Confederation Mall! Andrew Black deals drugs to local schools. He also steals merchandise and cash from his tenants and is a convicted sexual predator.” Over the next six weeks, Mr. Black notices a sharp decline in the number of patrons at Confederation Mall. He believes it is due to Mr. White’s damaging comments on the air. Four tenants decide to leave the Mall due to the decline in customers. These spaces remain vacant for 6 months.
That same evening, Alex Brownstein was walking his dog, Max, near the lot where the new shopping mall was to be built. It was a very dark and foggy evening. Alex was playing “catch” with Max. He tossed his Frisbee towards the area that was excavated. There is a “No Trespass” sign displayed on the lot, but due to the darkness the sign is hardly visible. Max dives for the Frisbee, falling squarely into the large hole excavated earlier that day, which is 9 feet deep. Noticing Max in distress, Alex runs towards Max, trips over a shovel left there by the construction workers, and breaks his leg. Max is taken to the local veterinary hospital, where he succumbs to his injuries, dying on the operating table. Alex is devastated by the loss of his best friend, Max. Alex wears a leg cast for 8 weeks, preventing him from playing soccer for the Acadia varsity team for the balance of the regular season and playoffs. Alex is the leading scorer in the conference.
Identify all the potential tort claims that exist in this fact pattern and identify any possible defences. For each tort claim, identify and define the applicable tort, perform an analysis applying the relevant facts to the legal requirements for each tort, provide a decision as though you were the judge hearing the matter, and explain what if any remedies you would award to the successful litigant.
Assume for all tort claims that the plaintiff is suing the defendant in court.
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