Chapter 6 – Negligence
Case 1

Submitted to: Chantelle Troy
Submitted by: Elaine Crocker, Justine Byrne and Brandon Noelle
March 12th, 2014

The plaintiff, Dean Zastowny, had been incarcerated after committing a number of crimes to support his drug habit. While imprisoned he was sexually assaulted by a prison officer. Zastowny then developed personality disorders such as low self-esteem, anti-social behaviour, and sexual anxiety. After being released the conditions remained and Zastowny found ease in the use of heroin; he continued to lead a life of crime. After spending 12 years in prison Zastowny had decided to sue the prison guard and the province. The defendants (prison guard and the province) admitted liability. The trial judge states that if the sexual assault did not occur Zastowny would not have become addicted to heroin, and he would not have committed additional crimes leading to his return to prison. The judge also states that because of the sexual assault Zastowny developed personality disorders and was not able to obtain and hold a job. Therefore, Zastowny argues that he should be compensated for income loss of the past 15 years, and for the future.
The plaintiff, Dean Zastowny is in the position of suing the prison guard and the province (as the guard’s employer) for the intentional tort of sexual assault. Zastowny is requesting compensation for all of the income that he has lost during the past 15 years spent in jail. He is also requesting compensation for the future since his personality problems continue to exist and he will most likely have difficulty maintaining a job.
The defendants, the prison guard and the province are being accused of sexual assault and have accepted liability. The prison guard committed the tort of negligence and is liable because the guard owed a duty of care, breached the standard of care and caused harm to the plaintiff. When compensating the plaintiff, the prison guard may pay or the province may.
The tort of negligence and the intentional tort of sexual assault are observed in Zastowny’s case. The tort of negligence determines whether the defendant can be held liable for carelessly causing injury to the plaintiff. The tort of negligence requires the plaintiff to prove that the defendant owed a duty of care, in that they were required to act carefully toward the plaintiff, breached the standard of care by acting carelessly, and caused harm to the plaintiff. An intentional tort is a deliberate act intended to injure others, or to interfere with another person’s rights. Sexual assault is committed when someone knowingly causes another person to engage in an unwanted sexual act by force or threat. I believe the judge should not award damages to Zastowny for all of the losses. Zastowny has a past of frequent drug use and was imprisoned for criminal acts that he had done before he was sexually assaulted. While being imprisoned from his own actions he was sexually assaulted. If he had not been imprisoned perhaps he might not have been in the situation. However, it is not Zastowny’s fault that he was sexually assaulted, but the matter may have been prevented if he did not commit previous crimes. I believe Zastowny should be compensated for the sexual assault because he suffered and is still suffering from low self-esteem, anti-social behaviour and sexual anxiety. Zastowny should not be compensated for the amount of time he spent in prison for crime that he has committed because he has a past of drug use and he could have received help after the incident happened. If the case were to go to court, the judge would most likely be in the plaintiffs favor because it is the workers responsibility as well as the institutions to make sure all inmates are safe. Also, criminals have rights that remain the same as any other person and should not be disregarded because of criminal actions.