Tort action for negligence rests on whether a defendant owed a duty of care to the plaintiff, whether this duty of care was breached, and to what extent a causal link can be established between the breach of duty of care and the dameages ensued.
1. Does Al's estate have a legal right to sue on behalf of Al? Or, do any of Al's relatives have a legal right to sue on Al's behalf?
According to the Estate Administration Act, the answer is yes. See s59(3). However, any claims made under the Estate Administration Act are pecuniary in nature only.
Let's identify the damages that were incurred. First, there are damages to Al's new truck. If these damages can't be repaired, it might be necessary to replace the truck. So, damages for either repair or replacement would be in order. Second, there are Al's funeral costs. Since his death is directly linked to negligence, funeral costs should be awarded.
Let's identify any potential tortfeasors. Neal was the waiter who served the party substantial amounts of drinks in the Memories Restaurant. As part of social host liability decisions by the Supreme Court of Canada (should be identified!!) restaurant staff and owners do have a duty of care to their patronsas they are ableto witness the increase in intoxication from the consumption of alcoholic beverages in the course of the evening. It is the responsibility of staff and maanagement to see to it that procedures are in place to get patrons home safely or to ensure that their liability is minmized. The profit motif must take second place when danger to life from drunk driving can be a potential possibility. While Neal may have seen the deterioration of Al's mental and physical state, he is only an employee and vicarious liability would apply to his manager, Olivia. Olivia, however, has attempted to follow common sense and asked Al and his party if they had a safe way of getting home. This expression of due diligence on her part would act as a persuasive defense of minimizing her liability with respect to Al's death and would likely flow to Neal. The fact that Al responded jovially that the party was only just beginning, that they walked to the Dog&Pony pub, would have made it impossible for both Neal andOlivia to foresee Al's death. It can therefore not conclusively be said that Al's death was directly linked to his drinking.
A more likely tortfeasor would be Roger. As an employee of Quickfix Inc., Roger had a clear duty of care to close the gate behind the last car on the barge, ensure the locks were operational, that all passengers had disembarked, and that all safety regulations had been complied with prior to sailing. In Roger's case, he had the added duty of care to bring Al to the ferry after he had exclusively been asked to do so by Bev. While his actions with respect to the locking mechanism can be described as negligent, his refusal to get Al after being ordered to do so by Bev border criminal negligence. Roger's negligence is the direct cause of Al's truck sliding into the river and the direct cause of Al's death. Roger would definitely be named in a liability action. However, his ability to pay is doubtful as he is a student with limited income. Therefore, his employer, Quickfix Inc. would also be held liable through vicarious liability action.
