Homeowners file a tort claim against a theme park - Case Study Example

When is an Act Tortious Case Study: Homeowners file a tort claim against a theme park Introduction William Prosser in his Handbook of the Law of Torts sets tort as a term "applied to different and more or less unconnected group of civil wrongs other than breach of contract for which a court of law will afford a remedy in the form of an action for damages."1 In criminal law, the state is portrayed as the bigger offended party than the plaintiff such that if a defendant is proven guilty the state metes out the appropriate punishment. It is different in tort cases, in which the plaintiff, whose more popular assignation now is "claimant," is the victim of the alleged wrong. Once the defendant is found liable he is directed by the court to pay damages to the claimant or else to desist from the wrongful activity through an "injunctive relief." Compensation and deterrence are two of the four main purposes of tort, the other two being appeasement and justice (Williams, 1951). 2 The types of torts in England and Wales are limited to trespass to land, trespass against goods, trespass against person, negligence and defamation (Barker & Padfield).3 To see how the law of tort operates and applies, this essay takes up a simulated case involving a group of residents and an amusement park that was put up within their village. The complaints range from the noise emanating from the park rides to the park employees' improper disposal of garbage. The issue: What is the possible liability of the park management to its neighboring homeowners as to the alleged nuisance that it causes them If said residents have a right of action in tort against management, would they be entitled to damages or just an injunction to make the theme park desist from its wrongful activity This issue can be resolved only by an evaluation and analysis of the laws of tort as to principles and case precedents, zeroing in on decisions previously made in cases with some circumstantial similarities to the case at bar. Case Background Since the 1960s, residents of Ashenhurst Village co-existed peacefully with Ashenhurst Hall right in the community until recently when the hall's owners, Bridge Development Ltd., obtained permission from the city planning office to redevelop it into an amusement and theme park, which is open from 11 a.m. to 7 p.m. There was nary a moment of peace for the village residents since then because of: Roads clogged with traffic. On opening day of the amusement park itself, roads to and from the village were impassable, such that the milk tanker that regularly picks up milk from the dairy farm of Farmer Green could not get in. When the tanker came the next day, the 1,500 liters of milk it was supposed to pick up the previous day was already spoiled, which translated to a big loss for Farmer Green. Noise. Screams from the Haunted House and rides at the park prevent Ms. Bourne, who works night shifts at hospital, from sleeping at home by day. Mr. Goode, who runs a wildlife sanctuary nearby, also says the noise causes distress to his animals. Carelessness in garbage disposal. The daily garbage from the theme park is collected in man-made waste bays placed alongside the road, which often contain more than the amount of garbage that they can hold. Such overloading caused one waste bay to fracture, spilling rotten food that pollutes Farmer Green's land. Errant water from a multi-level log-flume water ride. Water from this facility seeps through a crack and collects behind the wall separating the park from the railway tracks. As the water level increased, the pressure toppled the wall and caused a landslide that busted a sewer pipe owned by the local water company. Principles of Tort The tort law is characterized by a loose set of relatively abstract principles, which allow maximum discretion to be exercised by reference to common-sense values (Hocking & Smith, 1996).4 Thus, the judgment on whether the Ashenhurst Village residents have a right of action against the theme park will be based on the particular circumstances surrounding the alleged nuisances and many other factors as well. The categories of tort that may be invoked in this case include the torts of negligence and nuisance and intentional and statutory torts. In a tort of negligence, there are four basic principles involved: 1) duty of care, 2) breach of that duty, 3) causation between breach and duty, and 4) the causation must not be too remote from the breach and duty in the causal chain (MPL, 2003). This means that one person has a duty of care to avoid injuring his neighbor by any of his actions. This general principle has been set in Donoghue v Stevenson (1932) and later in Caparo Industries v Dickman (1990): "In law, you must not injure your neighbors, take reasonable care to avoid acts or omissions which you can reasonably foresee would likely injure your neighbors." The neighbors here are defined as those "closely and directly affected by one's acts." Negligence is the biggest category of tort and is considered both a public and private wrong since it endangers many besides the chance victim (Green, 1960). 5 As for the tort of nuisance, it gives one the right to sue for acts by others that interfere with his use and enjoyment of his land or property. However, there can be no liability unless the claimant establishes that the defendant owes him a duty of care and that there had been a breach of that duty (Street, 1999). 6 A tort is intentional if the act is done against another's person (for example, inflicting emotional distress, assault, battery) or property, which may be trespass to land or chattel. One commits an intentional tort if he can reasonably foresee that his act would cause harm to another individual and yet he still do it (Barker & Padfield). 7 In the case of statutory tort, this applies to any damage caused by the absence of health and safety measures, among others. The Product Liability Directive (PLD) in the European Union and the Occupier's Liability Act (OLA) in UK are prime examples of statutory tort, which means these are often legislated or court-ordered rulings. Under the PDL, people are liable for damages caused by defective products while the OLA provides that any person owes a minimum duty of care for the safety of other people in and around his land. Test of Tort For the Ashenhurst theme park to be liable in tort, a series of tests was set forth in Governors of Peabody Donation Fund v Sir Lindsay Parkinson & C. Ltd. (1985), Yuen Kun Yeu v Attorney General of Hong Kong (1988), Rowling v Takaro Properties Ltd. (1988), and Hill v Chief Constable of West Yorkshire (1989). First, the supposed damage can be reasonably foreseen. Second, there is a relationship of proximity or neighborhood between the two parties. Finally, it should appear that imposing a duty of care on the theme park management is fair, just and reasonable. To determine if a duty of care is involved, these fundamental questions need to be asked based on the decision in Anns v Merton London Borough Council (1978): 1) Is there a sufficient relationship of proximity or neighborhood between the alleged wrongdoer and the person who suffered the damage 2) In the reasonable contemplation of the theme park management, did his carelessness cause the said damage to his neighbors If the answer to the first question is yes, the court shall then consider whether there are any considerations that could reduce or limit the scope of the duty of care, or the number of persons to whom it is owed. If the answer to the second question is also yes, there is a prima facie breach of a duty of care. To be at fault in tort is to fail to accord others the appropriate level of level of care so as to avoid harming their interests and preventing them from "enjoying their land or property." Thus, it behooves upon everyone to behave as a reasonable person of ordinary prudence would, to discount the probability of harming his neighbors. To prevent such an occurrence, he needs to undertake precautionary measures, whose costs are justified when these are less than the cost of the damage that could be inflicted on the neighbors. Failure to take such care and precautions is to be at fault for the tort of negligence (Honore, 1995).8 This judgment is thus based on the following considerations: 1) The defendant is liable only if a reasonable person would have foreseen the damage or loss in the circumstances prevailing at the time of the alleged breach of duty (Roe v Minister of Health, 1954). 2) The degree of the risks involved. The greater the risk of harm that can be inflicted, the greater the precautions the defendant is required to undertake. 3) How practical the precautions were. If the precautions are deemed impractical or unwarranted by the situation, the entity involved is under no obligation to take them. In Wilson v Governor of Sacred Heart Roman Catholic Primary School (1997), someone got hurt at the school playground after the close of school hours but the school was absolved of negligence for not employing someone to supervise the place at those hours. 4) Social importance of a defendant's activity. In the precedent setting Watt v Hertfordshire CC (1954), a defendant's actions are justified if these serve a socially useful purpose. 5) The defendant's action is part of a common practice. Based on Gray v Stead (1999), a defendant accused of harming his neighbors is not negligent if his actions being complained about represent a set of customs and practices common to others in the same trade or business. Defense against Liability There are three main defenses to tortious liability that are available to Ashenhurst Hall: 1) the principles of volenti non fit injuria (a willing victim cannot claim), 2) contributory negligence, and 3) ex turpi causa non oritur action (no right of action arises from a despicable cause). (Fletcher, 1972)9 The first possible defense can absolve the defendant of any liability if he can adduce that the claimants have consented to the risk of the damage or loss, whether implicitly or explicitly. For example, there is no tort case if a spectator at a ballgame is hit and injured by an errant ball because he is assumed to have taken that risk when he bought a ticket to watch the game. Contributory negligence amounts to the same thing, since this is presumed to happen when the claimant contributed to his loss or damage through his own negligence. As for the third possible defense, the defendant's liability is scotched or reduced if the claimant himself is involved in wrongdoing at the time of the alleged negligence (Polinsky & Shavell, 1994). 10 Conclusion There seems no doubt that the management of the Ashenhurst amusement and theme park has a duty of care in seeing to it that its operations do not cause harm to the village residents, some of whom assume a "sufficient relationship of proximity and neighborhood" with the park. The main offenses for which the park could be held liable are the torts of negligence and nuisance as well as for intentional and statutory torts. The traffic and noise from the rides are forms of nuisance, whereas the water seepage from the water ride and the overflow of garbage from the park amount to acts of negligence. As for intentional tort, the law says the theme park management is liable for this offense if it acted the way it did although it could have reasonably foreseen the harm that it would cause (Barker & Padfield). 11 Based on the Occupier's Liability Act in UK, the park is also answerable for statutory tort if it never attempted to take health and safety measures to avoid causing harm to its neighbors. However, it has to be proven if the park management breached its duty of care as determined by the accepted tests and principles of tort. To evaluate what appears to be a multiple liability of the theme park, the court is expected to engage in a process of elimination. The first item likely to be eliminated from the list of complaints is the traffic snarl, which evidently took place only during the park's opening day and caused harm only to Farmer Green in terms of his spoiled milk. It can be argued that any reasonable person could not have foreseen such clogging of traffic, let alone the spoilage of someone's milk stock. In any case, there are many ways by which Farmer Green could have prevented it from happening, such as preserving his milk stock in ice. This is what tort is all about, dissecting all possibilities in a case to make common-sense values prevail (Hocking & Smith, 1996). 12 As for the noise emanating from the daily patrons of the amusement rides, the park management may invoke the principle laid down in Gray v Stead (1999) indicating that this kind of noise is only to be expected from such an establishment. In other words, it is part of a common practice. The law says that if a defendant's action represents a custom and practice common to others in the same trade or business, he is not liable for tort. For this reason, Ms. Bourne and Mr. Goode have no strong case against the theme park. On the part of Ms. Bourne, the common-sense consideration again applies - she can use earplugs to ward off the noise or she can have her bedroom sound-proofed. As for Mr. Goode, why is he complaining about the distress caused by the park noise to his wildlife denizens when Farmer Green is not as regards the cows in his dairy farm, which is right next to the theme park Finally, there is the possibility that the local planning office polled the opinion of the Ashenhurst Village residents before approving the re-development of the place into an amusement park. At the very least, the new configuration of the park was found to be in harmony with existing zoning plans. In that case, it can be said that the affected residents consented to the risk of the damage through "contributory negligence," one of the recognized defenses against tort liability. There is even a possibility that the theme park serves a "socially useful purpose" since it caters to the pleasure of the larger public, such that its supposedly harmful actions to a few are justified under Watt v Hertfordshire CC (1954). It then appears that the theme park is liable only for a reduced tort on the garbage problem and water seepage it caused in the neighborhood, which calls for nothing more than deterrence and appeasement. The residents affected by its activities have no basis in law to claim for compensation and justice. References: Barker, D. & Padfield, C. "The Law Made Simple." ISBN 0-7506-5405-8. Calabresi, G. & Hirschoff, J. (1972). "Toward a Test for Strict Liability in Tort." Yale Law Journal 85, 1055. Fletcher, G. (1972). "Fairness and Utility in Tort Theory." Harvard Law Review 85, 537. Green, L. (1960). "Foreseeability in Negligence Law." Columbia Law Review 61, 1407. Hocking, B. & Smith, A. (1996). "The Potential of the Law of Torts to Assist In the Protection of Children." Queensland University of Technology, Vol. 3, no. 1, May 1996. Honore, T. (1995). "Foundations of Tort Law." Oxford: Clarendon. Law Commission (1996). "Damages for Personal Injury: Non-Pecuniary Loss." Consultation Paper No. 140. Metaphysics Research Lab (2003). "Theories of Tort Law." CSLI, Stanford University, 22 September 2003. Polinsky, A. & Shavell, S. (1994). "Should Liability be Based on the Harm to The Victim or the Gain to the Injurer" Journal of Law, Economics and Organization 10, 427-437. Prosser, W. (1971). "Handbook of the Law of Torts." 1 St. Paul: West Publishing. Ronan, P. (2006). "The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory." 73 Tennessee Law Review, 2006. Street, T. (1999). "The Theory and Principles of Tort Law." Washington DC: Beard. Williams, G. (1951). "The Aims of the Law of Tort." Oxford. Read More