Nespolon v. Alford et al., (1998) 110 O.A.C. 108 (CA)

• Judge: Brooke, McKinlay and Abella, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 19, 1998
• Jurisdiction: Ontario
• Citations: (1998), 110 O.A.C. 108 (CA)

Nespolon v. Alford (1998), 110 O.A.C. 108 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. JL.005

Gary Nespolon (plaintiff/respondent/appellant by cross-appeal) v. Justin Alford, Jason Alford, Jim Alford, Kyle Berard, David Slobodnick, Arthur Pavao, Manuel Pavao, Maria Pavao and Estate of Kevin Arthur Snider (defendants/appellants/respondents by cross-appeal)

(C22143; C21726; C21769)

Indexed As: Nespolon v. Alford et al.

Ontario Court of Appeal

Brooke, McKinlay and Abella, JJ.A.

June 24, 1998.

Summary:

Snider who was 14 drank a bottle of homemade wine at a friend's house (Pavao) and became very drunk. He and his friends went to a fast food restaurant where Snider joined Alford and Berard both of whom were 16. A police officer told Alford and Berard to take Snider home. On the way they were joined by another friend, Slobod­nick. They dropped Snider at a home he said he knew and returned twice to see if he was okay. Stroud and his wife who had been driving behind the Alford vehicle saw Snider tumble out, head over heels. The Strouds drove for a mile, but returned to see if Snider needed help. Stroud who was on the other side of the street called out to Snider. Snider started across the street but fell and was hit and killed by a truck driven by Nespolon. Nespolon suffered post traumatic stress disorder as a result of the accident. Nespolon sued for damages from Alford (and his father), Berard, Pavao (and his parents), Slo­bodnick and Snider's Estate.

The Ontario Court (General Division) held that Nespolon, Pavao and Slobodnick were not negligent. However the court found Alford, Berard and Snider negligent and apportioned liability 1/3 each. The Alfords, Berard and Snider's Estate appealed and Nespolon cross-appealed.

The Ontario Court of Appeal, Brooke, J.A., dissenting, allowed the appeal, holding that Nespolon's injuries were not caused by or related to any fault on the part of any of the three boys (i.e., Alford, Berard or Snider) and were not reasonably foresee­able by them. There was therefore, no breach of a duty of care. The court dismissed the cross-appeal.

Damages - Topic 528

Limits of compensatory damages - Re­moteness - Torts - Foreseeability - Snider, who was 14, became very drunk on homemade wine - While Snider was at a restaurant with his friends (Alford and Berard, both age 16) a police officer told them to take Snider home - They dropped Snider at a house he said he knew and returned twice to check on him - Snider, however, fell on the street and was killed by Nespolon's truck - Nespolon sued Snider's Estate and Snider's friends claim­ing damages for post traumatic stress disorder - The Ontario Court of Appeal held that Nes­polon was not entitled to recover damages for nervous shock because Nespolon's shock was not reason­ably foreseeable - Reasonableness of the behaviour had to be considered in light of the boys' ages and experience - There were no policy reasons to justify expand­ing the category of those whose nervous shock is compensable to these cir­cumstances - See paragraphs 40 to 69.

Damages - Topic 2542

Torts affecting the person - Nervous shock - [See Damages - Topic 528 ].

Torts - Topic 20

Negligence - Standard of care - Child - Expected of - [See Damages - Topic 528 ].

Torts - Topic 20

Negligence - Standard of care - Child - Expected of - The Ontario Court of Appeal discussed the appropriate standard of care for children - See paragraphs 53, 54.

Torts - Topic 60

Negligence - Causation - Foreseeability - [See Damages - Topic 528 ].

Torts - Topic 90

Negligence - Duty of care - To intoxi­cated person - [See Damages - Topic 528 ].

Torts - Topic 8712

Duty of care - Claims for nervous shock -Foreseeability - [See Damages - Topic 528 ].

Cases Noticed:

Bechard v. Haliburton Estate and Dams­gard (1991), 51 O.A.C. 247; 5 O.R.(3d) 512 (C.A.), refd to. [para. 36].

Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186; 86 N.R. 241; 29 O.A.C. 1, refd to. [para. 40].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 41].

Yeu v. Hong Kong (Attorney General), [1987] 2 All E.R. 705; 82 N.R. 321 (P.C.), refd to. [para. 42].

Nova Mink Ltd. v. Trans-Canada Airlines, [1951] 2 D.L.R. 241 (N.S.S.C.), refd to. [para. 42].

Hof­strand Farms Ltd. v. B.D.C. Ltd., [1986] 1 S.C.R. 228; 65 N.R. 261, refd to. [para. 42].

School Division of Assiniboine South No. 3 v. Hoffer et al. (1971), 21 D.L.R.(3d) 608 (Man. C.A.), affd. (1973), 40 D.L.R.(3d) 480 (S.C.C.), refd to. [para. 42].

Prescott (Town) v. Connell (1893), 22 S.C.R. 147, refd to. [para. 44].

Stewart v. Pettie et al., [1995] 1 S.C.R. 131; 177 N.R. 297; 162 A.R. 241; 83 W.A.C. 241, refd to. [para. 44].

McErlean v. Brampton (City) et al. (1987), 22 O.A.C. 186; 61 O.R.(2d) 396; 42 C.C.L.T. 78 (C.A.), refd to. [paras. 53, 91].

McErlean v. Sarel et al. - see McErlean v. Brampton (City) et al.

McEllistrum v. Etches, [1956] S.C.R. 787, refd to. [paras. 53, 91].

Heisler v. Moke, [1972] 2 O.R. 446 (H.C.J.), refd to. [para. 53].

Downing v. Grand Trunk Railway Co. (1921), 49 O.L.R. 36 (H.C.), refd to. [para. 53].

Duwyn et al. v. Kaprielian (1978), 22 O.R. (2d) 736 (C.A.), refd to. [paras. 58, 95].

Hall v. Hebert, [1993] 2 S.C.R. 159; 152 N.R. 321; 26 B.C.A.C. 161; 44 W.A.C. 161, refd to. [para. 66].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Torts in Canada (1989), vol. 1, pp. 235, 238 [para. 43].

Linden, A.M., Canadian Tort Law (6th Ed. 1997), pp. 97 [para. 64]; 99 [para. 40]; 139 [para. 53].

Linden, A.M., Studies in Canadian Tort Law (1968), p. 150 [para. 96].

Counsel:

David Cheifetz, for the appellant, Berard;

Ian M. Boundy, for the appellant, Snider Estate;

Paul Brooks, for the appellant, Alford;

Samuel A. Mossman, for the respondent, Nespolon.

This appeal was heard on March 19, 1998, before Brooke, McKinlay and Abella, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on June 24, 1998, including the following opinions:

Abella, J.A. (McKinlay, J.A., concurring) - see paragraphs 1 to 69;

Brooke, J.A., dissenting - see paragraphs 70 to 108.