Question

Part 1: Case Study: Rosie’s Gourmet Shop and Café Rosie Rogers owns and operates Rosie’s Gourmet Shop and Café (“Rosie’s Gourmet”), a small food shop and café. In the shop, Rosie sells sandwiches, salads and soups, as well as pastries and drinks. All the food is made in the shop by Rosie and her staff. The business is mainly take - out, but in the warm summer months, Rosie sets up tables on her patio and serves food and drinks. Rosie has had a difficult few weeks, and is dealing with several challenging issues. Now that the weather has improved, Rosie has set up her patio for customers. Usually the patio is a quiet, shaded place where customers enjoy relaxing with a snack or a drink. This has changed now that a new business has moved in next door. The business is a marijuana dispensary, and Rosie’s customers are complaining about the crowds and the powerful smell of weed. Rosie is concerned that customers will stop coming to the patio café if this situation continues. A customer is unhappy with Rosie’s Gourmet. Amir brought his friend Marc to the café for lunch, and Amir paid for the meal. Marc ordered the tuna salad and enjoyed his meal but later had an upset stomach which lasted for several days. When his doctor told him that he had food poisoning, likely from fish, he called Rosie’s Gourmet to complain. Marc had to miss a week of work as a result of his illness. A few days ago, Lulu, a regular customer, slipped on some salad dressing that had been spilled on the floor as she was making her way to her table. Lulu had been looking at her phone while walking to her table and didn’t see the spill. While Lulu wasn’t hurt badly, she tore her dress and ruined one of her shoes. A new café called “Neighbours” has opened down the street, and Rosie is concerned about the competition. While her food is fresher and tastier, and she offers a level of personal service that few can match, she is worried about that she will lose customers to the new business, a branch of a very successful national chain. When Rosie was interviewed for the local paper recently, she made the following comment about her new neighbour: “While Neighbours may have lower prices, the quality of their products is poor and they do not use local fresh ingredients like I do”. Rosie has just received an angry letter from Neighbours, demanding that she publicly apologise and correct her statement, since they too use local ingredients and care about quality. Yesterday, in the shop, a customer approached Rosie to tell her that she had just seen another customer take two packaged sandwiches off the shelf and place them in her purse. Rosie approached the customer, and asked her to open her purse. When the customer refused and tried to leave, Rosie stood in the entrance and blocked her way, and then escorted the customer to the back room to wait for the police. The police arrived, searched the customer’s purse, and didn’t find anything. Today, Rosie had another issue. It was five thirty in the afternoon, the sun was shining and the patio was busy. A group of customers wanted a table, and Crosby, one of Rosie’s employees, told them that a table would be available in 20 minutes. When half an hour had gone by and they still had not been seated, they became very loud and demanded that they be seated. Crosby explained that the table was still occupied and asked them to be patient, but when they began shouting and insulting Crosby, he asked them to leave. They refused, and when Rosie came out to deal with the commotion, they continued to shout. One of the customers refused to leave until Rosie threatened to call the police. Finally, at the end of the day, Rosie’s chef Ricardo told her that he was quitting and going to work for the café down the street starting tomorrow. Ricardo told Rosie that the manager of the other café approached him and offered to double his salary. Questions: 1. Identify FIVE torts in this case and name each tort. (5 marks) 2. List three torts described in the case where you believe the plaintiff(s) in the tort action will have the most success should they proceed in a civil action. For each of the three torts: (a) identify the plaintiff(s) and defendants(s); (b) explain each element that the plaintiff must prove (using course concepts) in order to succeed in the claim; and (c) identify the type of damages that the plaintiff will likely claim. (12 marks; 4 marks for each tort) 3. Identify one example of vicarious liability in this case. Explain why vicarious liability would arise in the situation you chose. (2 marks) 4. Identify and explain one example of contributory negligence in the case. (1 mark)

Answer 1

Under the law, the power to sue and collect damages is granted exclusively to victims, namely to those who can show that their interests were set back by others’ behavior. By contrast, the law is much more generous in identifying defendants. A defendant can be liable for no reason other than that she is the “cheapest cost avoider.”

The law generally provides the victim (or the injured), and only the victim, the right to sue and collect damages. The “case-or-controversy” requirement embodies this principle, which equates plaintiffs with victims, namely with people whose interests were set back by others in wrongful ways. The view that only the victim has a right to sue is also dominant among legal theorists, including advocates of both corrective justice and law and economics.Surprisingly, however, the law is much more generous in identifying potential defendants. The concept of wrongfulness or fault is a flexible, policy-oriented concept, and the law commonly identifies someone as a defendant simply because she is the “cheapest cost avoider,” because she can insure herself, because she has deep pockets, or because of other policy-related reasons.

The cheapest-compensation-seeker rule can be analogized to the concept of the “cheapest cost avoider.” Precisely as the principle of the cheapest cost avoider demoralizes the concept of fault and thereby facilitates the attribution of fault to individuals who are not morally wrong (but instead need to be deterred), so the concept of the cheapest compensation seeker facilitates the provision of compensation to individuals who have not been wronged (but need to be incentivized to sue). While this proposal deviates from a well-entrenched doctrine, it is consistent with major developments in tort law, and it better reflects the greater stress on policy-oriented considerations that is reminiscent of contemporary tort law.