Ontario Court Denies Ex Parte Motion to Preserve Facebook

A New Decision on Facebook: Ex Parte Injunctions and Preservation Orders

Another Ontario decision dealing with production of Facebook profiles in personal injury lawsuits was released on October 29, 2009. In Schuster v. Royal & SunAlliance Insurance Company of Canada, the defendant brought a motion before a judge, without notice to the plaintiff, seeking an injunction requiring the plaintiff to preserve and produce her Facebook webpage.  The particulars of the decision are set out in detail, below.

Discovery CartoonThe plaintiff claimed that, as a result of a car accident, she suffered injuries that impaired her ability to work and to participate in social and recreational activities. During litigation, she produced an “affidavit of documents” (a sworn list of all documents in a party’s possession, including electronic documents, that are relevant to the lawsuit) in which she failed to disclose the existence of her Facebook account.

The defendant hired a surveillance company and discovered the Facebook account, for which access was restricted to 67 “friends”, one being the plaintiff’s mother-in-law. The defendant was able to obtain photographs from the mother-in-law’s Facebook account in which there were pictures of the plaintiff dated before and after the accident, although she was just standing, sitting or reclining  (she was not engaged in any activities in relation to which she claimed to be impaired).

The defendant had brought the motion on an ex parte basis (that is, without notice to the plaintiff) seeking an Interim Order for the Preservation of Property under Rule 45.01 of Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194). (Ex parte motions are typically granted where urgency arises because there is a reason to believe that the responding party, if given notice of the motion, will take steps to frustrate the process of justice before the motion can be decided). Rule 45.01 states:

INTERIM ORDER FOR PRESERVATION OR SALE

45.01 (1)  The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party. R.R.O. 1990, Reg. 194, r. 45.01 (1).

(2)  Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the court may order its sale in such manner and on such terms as are just. R.R.O. 1990, Reg. 194, r. 45.01 (2).

The Court noted that Rule 45.01(1) is “typically used to ensure that important documents, information or other items are preserved and available for the trial of an action where there is a strong likelihood that the defendant would destroy this evidence once notified of the proceedings”. As a result, an order under Rule 45.01 is similar to a civil search warrant and therefore subject to a higher threshold test than an “ordinary” ex parte injunction, pursuant to s. 101 of the Courts of Justice Act (“CJA”). (Note that Rule 40 of the Rules of Civil Procedure sets out the procedure to be followed in order to obtain an order under s. 101 of the CJA).

Justice Price noted that it was unclear whether the defendant was seeking access to just the web site, or the preservation and production of the website contents, and noted that an order granting the defendant access to the site would be far more invasive than ordering the plaintiff to preserve the contents of the site. Since an order granting the defendant access to the plaintiff’s Facebook account would have required the plaintiff to provide her username and password to the defendant (and was beyond the scope of her obligation to disclose relevant documents), the Court proceeded on the assumption that the defendant was only seeking an order for preservation of the site.

Justice Price then considered whether the defendant had met the test for an ordinary ex parte injunction under s. 101 of the CJA:

101.(1)In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. R.S.O. 1990, c. C.43, s. 101 (1); 1994, c. 12, s. 40; 1996, c. 25, s. 9 (17)

Terms

(2)An order under subsection (1) may include such terms as are considered just. R.S.O. 1990, c. C.43, s. 101 (2).

In considering whether to grant the interlocutory  injunction, Justice Price applied the test set out by the Supreme Court of Canada in R.J.R. Macdonald Inc. v. Canada (A.G.):

1.)    Is there a serious question to be tried? Judge Price found that there was a serious question to be tried, namely, the extent to which the accident had prevented the plaintiff from earning and income and engaging in recreational activities.

2.)    Will the applicant suffer irreparable harm if the application is not granted? This is usually determined by considering whether damages will be an adequate remedy. In this case, the defendant argued that without the content of the Facebook webpage, it woudl be deprived of the opportunity to properly respond to the plaintiff’s claim. The Judge disagreed noting that proof of irreparable harm must be clear and not speculative ; there was no evidence that there were incriminating photographs on the plaintiff’s Facebook page. In fact, Justice Price held that since the plaintiff had not listed the Facebook page in her affidavit of documents, the presumption was that this was because the Facebook page did not contain any relevant information. Unlike in previous Ontario cases dealing with Facebook production, in this case, the judge was NOT prepared to draw an inference from the nature of Facebook itself or the plaintiff’s profile that her Facebook page was likely to contain relevant evidence, stating:

I do not regard the mere nature of Facebook as a social networking platform or the fact that the Plaintiff possesses a Facebook account as evidence that it contains information relevant to her claim or that she has omitted relevant documents from her Affidavit of Documents. The photographs that the Defendant has obtained from the Plaintiff’s account in the present case do not appear, on their face, to be relevant”.

3.   Whom Does the Balance of Convenience Favor? In weighing the privacy interests of the plaintiff and the defendant’s interest in full disclosure, the court concluded that the balance favored the plaintiff:

  • The plaintiff’s failure to disclose her Facebook account in her affidavit of documents should give rise to the presumption that the information on the webpage is not relevant to the litigation – the defendant has the opportunity to rebut this presumption by cross-examining her on her affidavit of documents if it so chooses.
  • The defendant had been at liberty to question the plaintiff about her Facebook account at her examination for discovery.
  • There was no evidence to support the defendant’s proposition that the plaintiff was likely to delete any relevant contents of her Facebook profile pending trial.

In considering the plaintiff’s privacy interests, Justice Price had regard to the Federal Privacy Commissioner’s Report of Findings into the Complaint filed by the Canadian Internet Policy and Public Interest Clinic (CIPPIC) Against Facebook Inc” under the Personal Information Protection and Electronic Documents Act, and concluded:

The Plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 “friends”. She has not created her profile for the purpose of sharing it with the general public. Unless the Defendant establishes a legal entitlement to such information, the Plaintiff’s privacy interest in the information in her profile should be respected.

As a result of the foregoing, the Court concluded:

The Defendant has not established a basis for a preservation order in the present case, especially on an ex parte motion. The Defendant has not put forward evidence, beyond a bald assertion, that there is relevant evidence that needs to be preserved. It also has not put forward evidence beyond mere speculation to support a conclusion that an order is required on an ex parte basis to prevent the destruction of evidence after a notice of motion for production is given and pending the return of such a motion.

The Court did decide, however, that “[b]ecause Facebook is a relatively recent phenomenon and the disclosure obligations and remedies are still being articulated in relation to it”, the Court was prepared to grant the defendant a further opportunity to cross-examine the plaintiff on her affidavit of documents if it chose to do so.

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Limitation Periods for Property Damage Losses in Canada

What is a Limitation Period?

All legal proceedings, including subrogated recovery actions, must be commenced within a certain period of time set out by legislation. The time period in which an action can be brought is called a limitation period. It is also sometimes called a prescription period. If an action is not brought within the applicable limitation period, the claim will be forever lost. Even the most meritorious subrogated claim will disappear because of the expiry of a limitation period.

What is the Purpose of a Limitation Period?

The essential purpose of a limitation period is to place a reasonable limit on the amount of time which a party may take to commence an action. This serves a number of important purposes:

  • It creates an incentive for plaintiffs to bring their lawsuits in a timely fashion.
  • It defines a period of time in which a defendant can know with certainty that it will be free of ancient obligations.
  • It prevents plaintiffs from bringing old claims in which evidence has been lost by the passage of time

When Does a Limitation Period Start to Run?

Each province has different rules about when a limitation period begins to run. For example, in some provinces, time will start to run as soon as the facts which give rise to the claim take place. In other cases, the limitation period may not begin to run until the plaintiff discovers that he or she has been wronged. In some cases, a limitation period may temporarily stop running while parties are attempting to reach a settlement agreement. A party’s conduct may also affect the running of a limitation period. Additionally, where a plaintiff is a minor or under a disability, the limitation period may not start to run until after that person reaches the age of majority or is represented by a litigation guardian.

Which Limitation Period Applies?

The limitation period that applies in a particular case is determined by a number of factors. Just as limitation periods vary from province to province, they may also vary depending on the nature of the subrogated claim or cause of action, or the subject matter of the claim. Furthermore, some actions are dealt with by federal law in which case there may be one single limitation period that applies across Canada. Limitation periods may also vary depending upon the identity of the party being sued. For example, different limitation periods may apply if an action is brought against a municipality or other government body. The applicable limitation period may also be affected by the identity of the plaintiff, for example, where the plaintiff is a minor or under a disability. Finally, in some provinces, but not all of them, parties can agree to a different limitation period than is set out in the legislation.

You will also notice that some provinces have a maximum time period, called an “ultimate limitation period”, after which time the claim will be barred, even if the person did not ever become aware of the circumstances giving rise to the claim. The ultimate limitation may be particularly significant in claims arising out of faulty construction or environmental contamination where a defendant’s wrongful conduct may often not be discovered for long periods of time  The following is intended as an educational overview of some of the general limitation periods that will apply in claims for property losses in Canada:

(NOTE: Depending on the circumstances, different limitation periods may apply, or additional notice requirements may be applicable. For example, claims involving assaults or intentional acts, claims against municipalities, claims against medical professionals may be subject to additional notice requirements AND shorter limitation periods. For this reason alone, you should always seek legal advice specific to your circumstances).

ALBERTA

BRITISH COLUMBIA

MANITOBA

NEW BRUNSWICK

  • General Limitation Period – 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S. N.B. 1973, c. L-8, s. 9.
  • UPDATE:  As of May  1, 2010, there is a general limitation period of 2 years, and an ultimate limitation period of 15 years. Limitation of Actions Act, S.N.B. 2009, c. L-8.5.

NFLD. & LABRADOR

N.W.T.

NOVA SCOTIA

  • General Limitation Period – 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S.N.S. 1989, c.258, s. 2(1)(e). However, within 4 years of expiry of general limitation period, court may disallow the limitation period, having regard to circumstances of the case – Listed are enumerated factors to consider including date of “discovery” of claim, Limitation of Actions Act, R.S.N.S. 1989, c.258, s. 3.
  • Note: A 2009 version of this Act has received royal assent but has not yet been proclaimed in force.

NUNAVUT

ONTARIO

  • General Limitation Period – 2 years commencing when the cause of action is discovered. Limitations Act, 2002, S.O. 2004, c. 31, ss. 4,5.
  • Ultimate Limitation Period – 15 years (commencing  from 2004 or when the cause of action arises, whichever is later). Limitations Act, 2002, S.O. 2004, c. 31, s. 15.
  • Transitional Rules: Apply if a cause of action arose before January 1, 2004 and a proceeding has not yet been commenced:  (1) Claim not “discovered” until after Jan 1, 2004, then 2 years from discovery, s. 24(5)(1); (2) Claim “discovered” before Jan 1, 2004, then 6 years from discovery, s. 24(5)(4); (3); If former limitation period expired before Jan 1, 2004, then no proceeding shall be commenced, s. 24(3).

P.E.I.

QUEBEC

SASKATCHEWAN

YUKON

Conclusion

Although it is important for subrogation professionals to be alert to some of the limitation periods which might commonly apply in property damage claims, the limitation period which finally applies in a given case can be a complex and difficult legal issue to determine and may require resort to both legislation and case law. Oftentimes, the seemingly obvious limitation period is not the correct one and in some cases, the correct limitation period may even be difficult for lawyers to identify or locate. The opinion of an experienced lawyer should always be obtained in order to ensure that a subrogated claim is not unintentionally forsaken.

Ontario Cellphone Ban Begins October 26, 2009

Starting on October 26, 2009, it will be illegal for Ontario drivers to talk, text, type, dial or use email using hand-held cellphones or other hand-held communication or entertainment devices.   Bill 118, Countering Distracted Driving and Promoting Green Transportation Act, 2009, will amend Ontario’s Highway Traffic Act to include the following provision:

Wireless communication devices
78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

Entertainment devices
(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.

Hands-free mode allowed
(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.

Exceptions
(4) Subsection (1) does not apply to,

(a) the driver of an ambulance, fire department vehicle or police department vehicle;

(b) any other prescribed person or class of persons;

(c) a person holding or using a device prescribed for the purpose of this subsection; or

(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances.

Same
(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.

Same
(6) Subsections (1) and (2) do not apply if all of the following conditions are met:

1. The motor vehicle is off the roadway or is lawfully parked on the roadway.
2. The motor vehicle is not in motion.
3. The motor vehicle is not impeding traffic.

(8) In this section,

“motor vehicle” includes a street car, motorized snow vehicle, farm tractor, self-propelled implement of husbandry and road-building machine.

The Following a three-month period beginning Oct. 26, where the focus will be on educating drivers, police will start issuing tickets on Feb. 1, 2010, according to the Ontario government. Fines will range from  $60 – $500 for talking or texting when you should be paying attention to the road. Hands-free devices are still permitted, however, so  long as a driver uses a voice-activated system for dialing the number.

Sgt. Tim Burrows of the OPP says that if a driver is caught using a hand-held device, he or she may also be charged with careless driving — costing up to $1000, six demerit points and a driver’s license suspension. It will be up to the discretion of the police officer whether to charge a driver with distraction or careless driving – or the worst case scenario: both.

A Farewell to the House of Lords

The House of Lords is no longer the highest  court in the United Kingdom; it has been replaced by the new Supreme Court of the United Kingdom, which has officially come into existence today (October 1, 2009).  According to the  Official Press Release, the Supreme Court will hear civil appeal cases from England, Wales, Northern Ireland and Scotland, as well as criminal appeal cases from England, Wales and Northern Ireland. The Supreme Court takes over the devolution jurisdiction of the Judicial Committee of the Privy Council (JCPC), which continues to be the final court of appeal for certain other Commonwealth countries (and was Canada’s final court of appeal until 1949)  and other jurisdictions, such as Crown Dependencies.

Alberta Court Allows Substitutional Service on Facebook

According to an interesting article posted by Shaunna Mireau,  ‘Substitutional Service via Facebook in Alberta’ on Slaw,  on February 5, 2009  Master Breitkreuz ordered in Knott v. Sutherland that the plaintiffs could substitutionally serve one of the multiple defendants by publication of a notice in the newspaper, by forwarding a copy of the statement of claim to the human resources department where the defendant (formerly) worked, and also by sending notice of the action to the Facebook profile of the defendant. Precedent for service in civil matters via Facebook exists from Australia and New Zealand, but has not been previously been allowed in Canada.

The Order can be cited as: This order can be cited Knott v. Sutherland (5 February 2009), Edmonton 0803 02267 (Alta. Q.B.M.)

New Subrogation & Recovery Blog!

Cozen O’Connor’s Subrogation & Recovery Blog is finally up!  The Blog deals with current issues and developing trends in the field of subrogation and recovery, both in Canada and the US. The contributors include some of the leading attorneys in this area.

blog

Understanding the “Burden of Proof” in Subrogated Actions: A Brief Tutorial

As a lawyer once remarked when explaining his trial strategy to clients, “If the law is on your side, pound on the law. If the facts are on your side, pound on the facts. If neither is on your side, pound on the table.”  During the process of adjusting and investigating a claim, the notion of “proving one’s case” in a subrogated action for property damage may oftentimes appear to be an unlikely feat. Frequently, an adjuster or subrogation specialist will simply choose not to pursue a subrogated action for fear that the claim is a “table-pounder”; the claim initially appears weak or seems to be based on little or no evidence. The reality may be, however, that the claim gives rise to excellent recovery prospects.

Establishing whether the plaintiff or defendant will have the burden of proof in the subrogated action can mean the difference between winning and losing a case. In a claim for property damage it is usually the plaintiff, the insurance company suing in its insured’s name, who has the burden of proving that a defendant is responsible for the loss. However, the burden of proof is ultimately determined by the facts of each case and there are important exceptions to the general rule that the plaintiff has this burden.

WHAT IS NEGLIGENCE?

The most commonly raised allegation in subrogated property damage actions, both in the United States and Canada, is that of negligence. Negligence is legally defined as the failure to use reasonable care. A person is considered negligent at law if he or she fails to act as a reasonable and prudent person and causes harm as a result. In other words, a negligent person has done something which a reasonable person would not do or has failed to do something which a reasonable person would do, which results in damage or loss.

The Reasonable Person: A Prudent ‘Joe Six-Pack’

The reasonable person is a legal fiction created by judges to set an objective standard against which a defendant’s conduct can be evaluated. Courts have said that this reasonable person is not superhuman. He or she is not a genius, nor able to predict the future. The reasonable person has a normal level of intelligence, and makes prudence a guide to his or her conduct.  His conduct is the standard adopted in the community by persons of ordinary intelligence and prudence.

It is important to keep in mind that one of the main purposes of our negligence law is to enforce reasonable standards of conduct to prevent reasonably foreseeable risks. The law seeks to impose a disincentive for people to engage in risk-taking behavior. At the same time, a law that requires people to be overly cautious is detrimental because it is inefficient. Accordingly, the law does not require defendants to take every possible precaution to prevent a risk of harm; rather it only requires defendants to take reasonable precautions, having regard to the circumstances.[2] As you may suspect, what is reasonable in the circumstances is the subject of much debate among opposing lawyers, and often necessitates the evidence of experts.

The Elements of a Negligence Action

In order to succeed in a negligence action, the following four elements must be established:

1)            A Duty of Care – A duty of care arises when a defendant can (or should) foresee that his or her failure to act ‘reasonably’ will expose another to a risk of harm. That is to say, if a reasonable person would anticipate that a defendant’s conduct would create a risk of harm to another person or their property, then the defendant is said to owe a duty of care to that person.

2)            A Breach of this Duty – A breach of a duty of care occurs when a defendant fails to act as a reasonable person would have acted in the same circumstances. Recall that the law does not hold defendants to the standard of perfection. For example, if there is a very small (but foreseeable) risk of a very small harm occurring, but the cost of implementing precautions to prevent that harm is high, it might be unreasonable to require a defendant to take the precautions. In such a case, a defendant might not be in breach of the duty of care.

3)            Causation – A negligence action will not be successful simply because a defendant has been negligent; the defendant’s negligent act must also be the cause of the loss or damage. At some point in our day to day lives, we have all taken unreasonable or ‘negligent’ risks – for example, talking on a cell phone while driving. However, the law will only hold a person responsible for unreasonable conduct that causes another person to suffer a loss or harm.

4)            Damages – The plaintiff is required to prove his or her damages. A defendant is usually only held liable for reasonably foreseeable damages, however the law recognizes that damage can be physical, economic or psychological.

It is usually, but not always, the plaintiff who must prove to a court that more likely than not, a defendant has been negligent.  If the evidence shows that it is just as unlikely as likely that a defendant has been negligent, a plaintiff has not proven its case. Furthermore, it is not uncommon in property damage claims that the cause of a loss is equivocal. Consider the facts of Canadian National Railways Co. v. Hammil:

The plaintiff sent a refrigerated railway car to the defendant to be loaded with potatoes. Before the defendant could finish loading the railway car, a fire occurred which destroyed the potatoes and damaged the car. Unfortunately, there was no evidence showing how the fire might have started except for the plaintiff’s unsupported suggestion that the defendant’s employees may have been smoking cigarettes while loading the car. The defendant denied all liability on the basis that it was just as likely that the fire started accidentally as by its negligence.

On the facts of this case, it would be extremely difficult for the plaintiff to convince a court that, more likely than not, the fire was caused by the defendant’s negligence because no one knew what caused the fire. However, if this were a case where the defendant had the burden of proof, then the plaintiff could relax – the defendant would have to show that more likely than not, it had not been negligent and did not cause the fire. The lack of evidence would become the ‘defendant’s problem’. In other circumstances, a defendant may be responsible for the damage even where it can prove that it was not negligent.

It is therefore important for subrogation professionals to be aware of cases where the burden of proving a case may rest with a defendant, rather than a plaintiff. A claim for property damage that initially appears weak or that seems to be based on little or no evidence may actually give rise to excellent recovery prospects.

CIRCUMSTANCES AFFECTING THE BURDEN OF PROOF

A. Bailment

“Bailment” is a legal relationship that arises when a person, the “bailee” agrees to hold property belonging to another, the “bailor”, for a certain period of time and then return the property to the owner once that time has elapsed. When a person accepts payment for holding another’s property, they are held to a higher standard of care than a “gratuitous bailee” who holds property for another without benefit. A bailee who accepts payment is required to take the same care of the property in his or her possession as would a reasonable and prudent owner and will be responsible for any damage to the property caused by his or her negligence.

A bailee is not an insurer of property in his or her possession. However if the property is damaged, then the bailee is presumed to be responsible for the loss unless he or she can prove that the loss or damage was not caused by his or her negligence. This is essentially the reverse of the typical negligence action described above where the plaintiff must prove on a balance of probabilities that the defendant was negligent. The law’s rationale for placing the onus on the bailee is simply that as the person in charge of the property, the bailee is the one who has the best information about the loss. As a result, the bailee should have the burden of explaining himself when the property is damaged.

The case of Hammil, above, is an example of a bailment. The bailment was created when the defendant took possession of the plaintiff’s railway car for the purpose of loading it with potatoes. Accordingly, the plaintiff did not have to prove that the defendant had been negligent and that this caused the fire. Instead, it was the defendant who had to prove that the fire was not caused by its own negligence. The defendant could not give a sufficient explanation for the cause of fire and was accordingly held liable for the full amount of damages.


B. Carriage of Goods

A “carrier” is a party who contracts to transport goods. The common law distinguishes between a “common” carrier who carries goods for everyone on regularly scheduled routes and a “private” carrier who reserves the right to reject unattractive offers to carry goods. In either instance, a carrier has a duty to transport goods safely from the place of shipment to the place of delivery. In common law, a private carrier will be regarded as a bailee for any damage to property that has been entrusted to him for transit. However, a common carrier is liable almost to the degree of an insurer of the cargo. Regardless of whether a common carrier has caused the loss, he or she will be liable for damage to the cargo during transport unless he or she can establish that the loss falls within a relatively few classes of exemptions, as follows:

1)      Damage caused by an “Act of God”, an event of nature that is beyond the carrier’s power to predict or control;

2)      Damage caused by a “public enemy” (i.e. an act of terrorism);

3)      Damage caused by the fault of the owner, such as the owner’s failure to properly pack the goods before transport; or

4)      Damage caused by natural deterioration of the goods.

The policy reasons for imposing this level of liability on carriers are similar to those in cases of bailment. The carrier, as the party in possession of the goods, has the sole opportunity to protect the goods and has all the evidence about how the loss occurred.

However, the liability of carriers has been modified by various provincial and federal statutes which, depending on the context, may replace the common law. These statutes tend to broaden the categories of exemptions available to a carrier to exclude, for example, liability for damage resulting from riots or strikes, quarantine or the authority of law. These statutes may also impose monetary limits on a carrier’s liability based on the number of packages being carried or the weight of the goods. Carriers may also further attempt to limit their liability by contract. As a result of the complexities of this area of law, the advice of a lawyer who is experienced in handling carrier claims is usually necessary.

C. Nuisance

A person may commit a legal nuisance when he indirectly causes physical injury to another person’s land or interferes unreasonably with that person’s use or enjoyment of their land.[2] The question that is asked in a nuisance case is: “Is the defendant using his property in a reasonable manner, having regard to the fact that he has a neighbor?” To illustrate, in determining what constitutes “unreasonable” interference, Canadian courts have considered the following factors:

1)      The severity of the interference, having regard to its nature, duration and effect;

2)      The character of the locale;

3)      The usefulness of the defendant’s conduct; and

4)       The sensitivity of the property or use interfered with.

Examples of common nuisances include vibrations caused by construction work that damages the foundation of nearby buildings, or damage caused by burst water or sewage pipes. If a plaintiff can establish that a defendant has created a nuisance, the defendant may be liable for resulting damages even if the defendant has not been negligent.  Importantly, negligence is not a prerequisite to proving nuisance. Negligence examines the reasonableness of a defendant’s conduct, whereas nuisance law only considers whether the effect of the defendant’s conduct, from the plaintiff’s point of view, is reasonable in the circumstances.

D. Dangerous Activities

Where a person engages in an activity that is hazardous or inherently dangerous, that person may be absolutely liable for any resulting damage. All the plaintiff is required to demonstrate is that it has suffered loss at the hands of the defendant and, unlike in a case of bailment, the defendant cannot excuse itself on the basis that it took every possible precaution to prevent the damage from occurring.

A classic example used to illustrate absolute liability is that of the owner of a tiger rehabilitation center. Notwithstanding that the owner buys the strongest tiger cages available, erects ‘state of the art’ tiger-proof fencing and hires experienced tiger keepers to watch over the animals, if a tiger should accidentally escape, the owner is liable for any and all damages that result. Another example is that of a factory-owner who houses dangerous chemicals in his warehouse and carefully ensures that the storage of the chemicals accords with all industry guidelines. If the chemicals somehow escape from their containers, the owner is still liable for the damage. The absence of negligence is not a defense.

The law imposes this absolute liability in situations that are inherently dangerous in order to discourage reckless behavior and unnecessary loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying litigation and allowing a plaintiff to become whole more quickly.

SUMMARY

In property damage claims where there is little or no evidence as to what has caused a loss, a subrogating insurance company may nevertheless have an excellent opportunity to recover against a potential defendant. A defendant who was in possession of the plaintiff’s property as a bailee or carrier at the time of loss may have to prove that it was not responsible for the plaintiff’s loss or that it satisfies an exception to liability. The common rationale for calling on a defendant to account for loss in these cases is that the defendant, as the party with control of the goods at the relevant time, will have the best knowledge of events leading up to the loss and the opportunity to have taken precautions to prevent the damage from occurring.

Alternatively, where a defendant’s actions or conduct have the effect of damaging the plaintiff’s property, a plaintiff may be able to hold a defendant liable even without proving negligence. If the defendant’s actions are inherently dangerous or interfere unreasonably with the plaintiff’s property, the defendant may be liable. In order to obtain optimal recovery in subrogated property claims, subrogation professionals and their legal counsel must be alert to potential theories of liability that arise on the facts of each case.