PART II

THE LAW OF TORTS

 

CHAPTER 2

THE LAW OF TORTS

LEARNING GOALS

• To identify common intentional and unintentional torts.
• To identify business situations where torts are most likely to occur.
• To understand the principles of law, and the standard of care or conduct imposed by the courts to determine tort liability.
• To understand how the courts apportion liability where more than one person is

            responsible for a tort.

• To understand how damages or compensation is determined by a court.

CHAPTER  COMMENTARY

Chapter 2 introduces the first area of the law and some of the more important (and common) acts of intentional and unintentional interference with persons or property.  Since tort law represents one of the oldest areas of the law, its development is one of the best examples of laws that were established in response to the needs of society.  Most of these principles were formulated long ago, and have been refined over the years as society changed.  The basic intentional torts and the principles associated with them are examined in the first part of this chapter, and the concepts applied to business-related activities are found in the last part of the chapter.  Note that the business-related torts set out are those where the intention to injure competitors is an essential component of the tort itself.
Chapter 2 also examines a number of the more common torts that involve intentional and unintentional interference with the rights, property, or person of another. These  various torts  rank among the oldest and, in some cases, constitute crimes under the Criminal Code. For the purpose of re‑enforcement, it might be a useful exercise to note once again that some intentional torts  (and in particular the intentional torts covered in this chapter) may be subject to both civil and criminal proceedings if they constitute crimes as well as civil wrongs.
Many of the intentional torts described in this chapter in some instances have an a defence, which may constitute justification for the act,  and may wholly or partially  absolve the actor from liability. These should be discussed, along with their limits. E.g: assault/battery and the act of self‑defence.  Similarly, the tort of defamation, and the defence of privilege.
Most of the intentional torts described in the chapter are generally well‑known to students, and class discussion should perhaps be used to explore the various defences in  detail,  and the issue of  damages or compensation for the party injured by the wrongful act. Because these torts tend to be deliberate acts, this aspect of the various torts should be emphasized.  Care should be taken, however, to note the exceptions such as battery situations, where the 'touching' is without consent, but where the intention is not to injure.  For example, a medical practitioner performs a surgical procedure without the patient's consent. The medical practitioner may have had the best of intentions, and performed the operation to improve the patient's health, but in doing so without consent would have committed a battery.
The chapter also introduces a number of new legal terms that you will find described  in  the text  material. Definitions of these terms should be committed to memory  or understood thoroughly by the students.  In addition to the text description,  the Glossary at the back  of  the text might  be consulted for brief definitions  of  the various terms.
Business-related torts and crimes tend to be those torts designed to injure competitors by slandering their goods or their business name.  Students should be reminded that the reputation of a business and the reputation of a product are important 'assets' of a business, and entitled to protection under tort law.  The protection of a reputation of business (or product) is possible by way of an action for slander of goods or slander of title, but it should also be noted that untrue statements about the reputation of a business person would be actionable as defamation.
Certain business-related activities are 'crimes' as well, and these are discussed briefly in the text.  Note that some of these activities are covered in greater detail in other chapters of the text.  For example, conspiracies to fix prices, etc., are covered in Chapter 16 which deals with the Competition Act.  Instructors may wish to expand upon the material in Chapter 2 by reference to the material in Chapter 16 if they do not intend to include the latter Chapter in their course material.
Torts associated with unintentional interference with persons or property are generally associated with careless acts or a failure to act, and the concepts of duty not to injure, foreseeability, and standard of care should be considered in their application to these types of torts.
It is important to note that the concept of strict liability remained over the years as an important determinant of liability in cases where persons keep in their possession something capable of  causing injury if it should escape.  This must usually be something which is not normally confined, or something which, if confined in a particular way, creates or has the potential of causing injury if it escapes.   Examples would be the confinement  of a dangerous wild animal, or the storage of a large quantity  of water in a reservoir.  The courts generally consider both of  these activities to be inherently dangerous, and if the animal or water should escape, the likelihood of injury to a neighbour is very great.  Judges generally assume that the person who engages in this type of activity is aware of the dangers involved, and of the potential for harm.  As a consequence, they are usually held responsible for any damage caused if escape occurs, regardless of the precautions taken to prevent the escape.  Liability in these instances would likely be determined on the basis of strict liability.
Apart from cases where strict liability might be imposed, tort liability is generally concerned with the right of a person to live without interference or injury to their person or property by others.   Tort law, consequently, imposes a duty on persons not to injure others, or their property.  This concept of a duty not to injure forms the basis of a great many kinds of torts:  negligence, nuisance, defamation, etc., as well as most crimes of violence.
Students should be made aware that the duty is not absolute, otherwise it would represent a strict liability situation.  In most cases, the duty will be subject to a standard of care, or the concept of foreseeability.  On these points, as the text indicates, the standard of care is usually the standard of the "reasonable person", and the conduct of the person is compared to that standard. In a similar fashion, the question of foreseeability is usually framed by  the words "would a reasonable person under similar circumstances have foreseen the possibility of injury?"
The doctrine of foreseeability, the standard of the "reasonable person," and their application to the question of liability should be re‑enforced by way of examples, such as the following incident:
"A" owns two large dogs and he frequently allows them to run loose on his grounds.  The grounds are fenced, and the type of fencing is such that the dogs could not slip between the fence wires.  One side of the property borders on a pathway regularly used on week‑ends by riders on horse back.  "A" allows his dogs to run free on a week‑end while a group of horses and their riders are on the pathway.  The dogs, by their sudden barking, frighten one of the horses, and it throws its rider.  The rider suffers an injury,  and later institutes legal proceedings against the dog owner.

            The questions which might be raised here include the following:

            (1) Does the dog owner have a duty not to injure the rider?
(2) What is the nature of the duty, if any?
(3) Did the dog cause the injury?  Was it the proximate cause?
(4) Was the injury which the rider suffered foreseeable by the dog owner?  By a "reasonable person"?
(5) What consideration should be given to the rider's actions?  Should the rider have foreseen the possibility  of the horse bolting when near the dogs? Is the rider obligated to take precautions under the circumstances?
(6) If the fence was such that the dogs could easily pass through it and enter on the
pathway, what effect might this have on your answers to the above questions?

            A series of incidents similar to the above may be used to discuss and illustrate the various concepts covered in the chapter.
Note that in some provinces (such as Ontario) virtual strict  liability may be imposed by statute upon dog owners for injuries caused by their dogs (subject to certain exceptions).  The common law standard is consequently replaced by a higher standard in these instances. See for example, Dog Owner's Liability Act, R.S.O. 1990, c. D-16. 
Another useful approach might be to describe an incident, then have the class examine the incident by raising the questions:  Does the defendant owe a duty to the plaintiff?  What is the duty owed?  What standard or care must be maintained?  Did the defendant breach the duty? Did the plaintiff suffer an actionable loss as a result?
In any class discussion, the standard of care, foreseeability of injury, and the reasonableness of the actions of the defendant should be underscored as the important determinants of liability in order to avoid giving the impression that once a duty is owed, any injury which follows is actionable. In this regard the comments concerning the duty of care of professionals might be used as an example.
In the case of a professional person performing a service, (e.g. a lawyer or account) the standard is normally that of an ordinary skilled member of the profession, and if the work is done in accordance with that standard, there is usually no liability in the case of injury. The important point to note here is that the duty is not absolute.  If the professional exercises the degree of skill of the average member of the profession, that is all that can reasonably be required of the person, assuming that the profession has established a reasonable standard. It is only when the performance is below the standard that liability normally will arise.
Some class discussion time should also be devoted to professional negligence in the form of negligent misstatements and negligent misrepresentation by accountants, lawyers, etc., and the extent of their liability.
The owner or occupier of land is not subject to the ordinary rules of negligence, but instead, at common law is subject to three different standards, depending upon the type of person that enters upon the land.  The landowner owes the lowest duty to the trespasser.  In this case, the duty is usually to avoid deliberately injuring such a person. The courts more recently,  however, have occasionally applied the test of "ordinary humanity".
The licensee is entitled to a warning of any unusual or hidden dangers, since he or she enters on the lands with the consent of the landowner.  The invitee, to whom the highest duty is owed,  must be warned or protected from any dangers of which the landowner  is aware, or ought to be aware as a reasonable person.
With regard to occupier's liability, a number of provinces have passed legislation to eliminate the distinction between licensees and invitees, and to establish a statutory standard of care for occupiers.   British Columbia, Alberta, and Ontario are provinces that have taken this approach.
It  might  also be worth noting that the liability of  occupiers of  land, which in the past has  been  subject to some codification in the form of petty trespass acts and other similar legislation, has  been  the subject of more extensive codification in some provinces in recent years.   This has tended to delineate the rights and duties of landowners and other occupiers of land.  See for example, Ontario, the Occupiers' Liability Act, R.S.O. 1990, c.0-2.
Product liability is a growing area of tort law as products become more complex.  It is essentially an ordinary negligence  action, where the manufacturer may be held liable if the consumer is injured by a product that was negligently made, or where the user was not warned of the dangers associated with the use of the product.   The case of M'Alister (or  Donoghue) v. Stevenson which is described briefly in the text on page 49, and case law on
p. 50 outlines this liability, and the standard of care required of manufactures of products.
Classroom review of the chapter should also include a review of the defences which might be raised to a claim in tort.   Instructors should note, however, the limitations on waiver as a defence, since the circumstances under which torts arise may have a significant impact on the concept as a defence.
Tort remedies are outlined on pages 51-53 of the text as they apply to unintentional torts.  The topic of remedies is covered elsewhere in the text as well with respect to other legal relationships.   Some instructors advise students at this stage that other remedies (such as injunctions) will be encountered later on in the text, and the remedies used in tort actions, such as money damages will also be dealt with as they apply to other types of injuries.

 

REVIEW QUESTIONS

1.  In law, what is a tort?

Answer:
A legal term used to describe activities that either intentionally or unintentionally cause injury to others or their property, where the person causing the injury has no legal right to do so.
2.  Why are some intentional torts also considered to be crimes?

Answer:
Because of the state’s obligation to protect the lives and property of its citizens, many intentional torts are considered to be wrongs against society or crimes.  The state consequently makes these torts crimes, and enforces them as such.

3.  What defence is available in cases of assault and battery?  What limits are imposed  by the courts?

Answer:
Self‑defence may be raised as a defence where a person had a genuine fear of injury to their person as a result of a threat of  violence (assault) and acted to prevent the battery.  Note also that others may have a legal right to use force against others.  E.g.: police officers restraining a suspect of a crime.
4.  Explain defamation.

Answer:
Defamation is a false statement made that is injurious to a person’s character or reputation.  Slander is spoken defamation.  Libel would be written defamatory statements.  Libel is the more serious, as it is recorded, and others may read it over the years.  Slander may soon be forgotten.

5.  Explain duty of care.

Answer:
Duty of care is based upon the premise that a person  should not do anything to injure his or her neighbour ‑ hence the duty not to injure becomes an essential factor in establishing tort liability.  Note that some individuals may have the right to injure or take the property of others. See text for examples.        

6.  Explain the reasonable person test.

Answer:
The reasonable person test is used to establish the standard of care attached to the duty of a defendant not to injure.  The plaintiff must satisfy the court that the defendant's conduct or actions fell short of what a reasonable person would have done in the circumstances.

7.  Why do the courts impose strict liability for damage in certain cases?

Answer:
Strict liability is  generally imposed to‑day  where a person maintains an animal or thing which is  potentially dangerous if not confined.  Since these things are known to be dangerous, the person keeps them at his or her peril.   

8.  Define negligence.

Answer:
Negligence arises where a person unintentionally injures someone or causes injury to his or her property where the person causing the injury has no lawful right to do so.

9.  What defences may be available to a defendant in a negligence case?

Answer:
Defences are:

• lawful right.
• voluntary assumption of risk.
• Act of God.
• defendant met the standard of care of a reasonable person.
• waiver.
• statute of limitations.
• release.

 

10.  On what basis do courts award damages in negligence cases?

Answer:
Courts normally attempt to put the injured party back in the same position as he or she was before the injury in so far as money damages may do so.

11.  What kinds of money damages might a court award in a case where a negligent
motorist causes an accident in which a pedestrian on a sidewalk is struck by the

• vehicle?
•  
• Answer:
• money damages to compensate for specific losses: medical expenses, lost wages, etc. that may be calculated.
• general damages to compensate for pain and suffering, and any permanent injury resulting from the accident.
•  

12.  Explain a waiver and how it is used.

Answer
Waiver is the promise by a person not to sue another person in the event that injury or loss should occur due to the other person’s actions.

13.  What duty of care does an occupier of land have towards a trespasser?  An invitee?

Answer

To a trespasser:  no duty of care except to treat with ‘ordinary humanity’ (not to deliberately injure).

To an invitee:  to protect the invitee from any unusual dangers that exist on the property that the occupier is aware of or should be aware of as a reasonable and careful person.

14.  How might a trespasser become a licensee?

Answer

A trespasser may become a licensee if the occupier of land fails to take steps to stop a known trespasser from continuously trespassing on the land.

15.  What tests do the courts use to decide if a professional person has been negligent?

Answer

The test used to determine professional negligence is the standard of performance established by the governing body of the profession.  (The skill level of a reasonable person who was a fully qualified member of the profession).

16.  Explain how the courts might limit the liability of professionals who prepare financial statements for clients.

Answer:
The extent of the liability is generally limited to the users that might reasonably be foreseen to be relying on the statements in their decision-making.

17.  How might manufacturers of hazardous products limit their liability if damage might result from the improper use of the products?

Answer:
Careful testing to ensure safety, and where the product has some inherent danger, provide adequate warning and instructions for its use.

DISCUSSION QUESTIONS

1.  In the Ask a Lawyer scenario at the opening of the chapter, the case raises three
questions:

• should the company proceed with the marketing of the product?
• If so, what precautions should the company take in its marketing information?
• What step should the company take to minimize risk of liability?

 

          How would you answer each of these questions?

Comment:
Students should consider or raise the following points in their discussion of Ask A Lawyer scenario.
Careful testing of the product should first be done to ensure that the product contains no other inherent risks.  It may then proceed with the marketing of the product.  Because of the know allergic reaction, the product should contain a very visible and clear warning that protective gloves should be worn when using the product.  A hazard warning might also be included on the label and the label should be applied to the container in such a way that it can be seen and read by a user.  The company might also determine if a ‘child proof’ container could be developed.  Insurance coverage should be obtained to protect the company in the event that a user should suffer injury and sue the manufacturer.

2.  Two municipal politicians have proposed a by-law for a city that would prohibit groups of more than three persons from singing aloud on city streets without first obtaining a license to do so from the municipality.
The local newspaper believes the proposal to be a foolish and unnecessary by-law. 
It wishes to ridicule the politician and their by-law.  What can they so in this regard?  What limits might the law impose?

Comment:
Newspapers are usually permitted to make ‘fair comment’ about local politicians, but their statements must be honest opinion, based upon the information available to them.   If they have an honest belief that the proposed by-law is foolish, they may express this opinion in their newspaper.  Newspaper cartoonists may portray the local politicians in their cartoons as being foolish in their proposal.

3. A tavern has decided to hire a person to control unruly patrons.  What advice and instructions should the management give to the new employee?

Comment:
Students should recognize the principal duty of the employee would be to have the unruly patron leave the premises.  The instruction could include:

• making the employee aware that the patron must first be asked to leave the

tavern immediately – the reason for this would be that it would represent notice to the patron that his/her status has been changed from invitee to trespasser if he/she refuses to leave.

• the employee may escort the patron from the premises if he/she refuses to

leave, but the employee can use no more force than necessary in the process.

• the employee should call the police if the patron threatens anyone with violence or assaults other patrons.

 

COMMENTS RE: DISCUSSION CASES

CASE 1
The Happy Hour Sports Bar employed Bertha as a bartender.  One evening, a young man entered  he bar in an obvious drunken state, and demanded a beer.  Betha refused to serve him a beer, and offered to call him a cab to drive him home.  The young man refused the cab, and demanded a beer in a loud voice.  Bertha once again refused to serve him, and told him to leave the bar at once.  He then became angry and began pounding on the bar with his fist, demanding a beer.
Without a further word, Berta walked around the bar to where the man stood.  She quickly put a head-lock and arm lock on the man, then escorted him out of the bar and into the street, where she released him.
A few moments later, the man returned to the bar and demanded a drink.  Bertha again walked around the bar and seized the man by the arm to escort him out of the building, but the man refused to move, and attempted to strike her with the fist of his free arm.  Bertha avoided the swinging arm and seized it as well.  She then pinned both arms behind the man’s back, and pushed him in the direction of the exit.  Once through the door, she gave him a heavy push into the street, where he fell, striking his head against a parking meter.  The man suffered a serious head injury as a result of the fall, and brought a legal action for damages against the bar owner and Bertha.
Discuss the type of case the man might take to the court, and the defences, if any, of Bertha and her employer.  Render a decision.

Comment:
The facts of the case may give rise to an action for damages on the basis of excessive force causing injury.  This may also include a claim of negligence on the part of Bertha, since she threw the patron in the direction where the head injury would not likely have occurred.  Apart from the issue of use of force, the case deals with the rights of an occupier of property to eject a person from property, and the application of force in the exercise of rights.
Questions that might be raised in connection with these issues are:  What is the status of the drunken patron once he was requested to leave the premises in the first instance?  Did Bertha commit a tort by taking the patron and ejecting him from the premises? Did the patron commit a trespass by returning?  Did Bertha’s actions on the second occasion constitute a tort?
Students should note that the drunken patron had entered on the premises lawfully.  The bartender was entitled to ask the patron to leave because he was drunk.  When he refused to leave, he became a trespasser, and the occupier (the bartender) was entitled to take reasonable steps to remove him from the premises.  However, when the patron refused to leave, the police should perhaps have been called to deal with him, as any excess force on the part of Bertha might be considered a battery.  As a general rule, a person may eject a trespasser from property if the trespasser refuses to leave after being told to do so, and the person in possession (owner or tenant) may use whatever force is necessary to eject the trespasser.
On the question of the head injury, the patron’s claim concerning the push of the patron in the direction of the parking meter raises the question of negligence, forseeability of the injury by the parking meter, and the reasonable person test.  On this point, the patron’s head striking the parking meter would probably not be a foreseeable consequence of the push out the door.

 

CASE 2
The Daily News was a small town newspaper that frequently reported the local Town Council meetings in detail.  At one of the Council meetings, one of the councillors raised a concern about a housing project in the community that was being constructed by Ace Contractors.  During the discussion at the Council meeting, the councillor stated that the owner of Ace Contractors, a John Smith, was a ‘crook’ and should be ‘kicked out of town’.  The Daily News reported the discussion in detail, including the comments of the councillor.  Smith in fact was an honest citizen, and not a ‘crook’.
When Smith discovered the newspaper report, he instructed his lawyer to immediately begin a legal action against the newspaper and the councillor.
Describe the nature of the action, and the defences, if any, that the Daily News and the councillor might raise in their defence.  Explain, with reasons, how the case might be decided.

Comment:
Students should recognize that the town councillor made a false statement about the owner of the construction company.  Does a town councillor at a meeting have absolute privilege to make such statements?  Would it make a difference if he honestly believed that statement to be true?
Municipal corporations are creatures of statute, and unless provision is made to protect councillors in the governing statute, they may not have the absolute privilege of Parliament, the legislatures or the courts.  If no protection, the councilor’s false statement may constitute defamation. However, a Manitoba case [McKinnon v. Daphin (Rural Municipality [1996] M.J. No. 24] suggests that a defamatory statement made by a Municipal Councillor at a council meeting, if made without malice may have qualified privilege.  The question here is:  was the statement malicious?  If so, then the defence of qualified privilege would not stand.
The newspaper’s position should also be discussed by the class.  What responsibility would the newspaper have to Smith?  If the newspaper was merely reporting the council meeting and the statements of the councilors, it may be able to avoid liability.

CASE 3
Luxury Fur Farms for many years operated a mink ranch in a farming area near a municipal airport.  Due to the growth of the city, a new runway was constructed that would allow larger aircraft to use the airport.  The runway was constructed in a direction such that aircraft approaching the runway would fly directly over the building that housed the mink if cloud or fog conditions required the pilots to fly to the south of their normal approach path.
Because mink will devour their young if a loud noise occurs, Luxury Fur Farm had the words ‘MINK RANCH’ painted on the roof of their barn in large, 20 foot letters that were clearly visible to aircraft in the air.  A warning of the existence of the ranch was also reported in the pilot flight information manuals, advising pilots not to fly low over the buildings.
Shortly after the new runway was constructed, weather conditions required Ace Airlines Flight 120 to approach the airport on a path directly over the mink ranch.  The noise of the aircraft caused a great many of the mink to kill and eat their young, and Luxury Fur Farms suffered a substantial loss.
At the trial of the case, the pilot of the plane admitted that he was unaware of the location of the mink ranch.  He also stated that he had not examined the flight information manual that identified the location of the mink ranch.
Discuss the nature of this case, the claim of Luxury Fur Farms, and the defence, if any, that might be raised by the Airline.  Render a decision.

Comment:
The facts of this case raise the issue of whether the airline was under a duty of care towards the mink ranch owner not to injure the animals.  Students should be asked to discuss this issue in terms of the nature of the duty (if any), whether a reasonable person (pilot) should be aware of the injury that might be caused by flying over the building at a low altitude, and if so the conduct that should take place to avoid the injury.
Students should be asked to speculate about the duty of care (if any) in terms of how far away from the mink ranch would be appropriate?  Does the fact that the approach over the mink ranch was not the normal or usually flight path to the runway for aircraft matter?  Does the airport have any obligation to the farmer by constructing the new runway as it did?  Was the pilot negligent by not examining the information circular?  Was the pilot expected to know the significance of the words “Mink Ranch”?
The facts of the case are essentially those of Nova Mink Ltd. v. Trans-Canada Air Lines [1951] 2 D.L.R. 241.  The court in that case concluded that the pilot was under no duty to avoid the mink ranch, as a reasonable person would have no way of knowing how far to stay away from the mink ranch to avoid injury.  The case against the pilot and the airline was dismissed.

CASE 4
A golf club constructed a driving range on its property that faced a number of residential properties located next to the golf course.  Golfers using the driving range frequently hit golf balls into the backyards of the neighbouring residential properties, and on several occasions broke windows in the houses located on the lots.  On one occasion, a golf ball struck and killed a cat that had been sleeping on a bench in one of the backyards.
The residential property owners complained to the club about the golf balls being driven into their properties, but the club refused to change the location of the driving range.  In response to the complaints, the club stated that the individual golfers that caused the damage should be responsible, since they hit the balls into the yards.
When the club refused to stop the use of the driving range, the property owners decided to institute legal proceedings against the club.
Discuss the nature of the action, the arguments of the parties, and render a decision.

Comment:
Students should identify the facts of this case as raising issues of nuisance, trespass and negligence.  In this case, the club has some responsibility for the damage caused by the flying golf balls, as it was responsible for the location of the driving range.
Note that the driving of golf balls onto the neighbouring properties constitutes a trespass.  It may also constitute nuisance causing injury or damage to the enjoyment of the property owners.  The negligence claim may be more difficult to establish, since this would relate to carelessness of individual golfers.  However, the club may be partially responsible due to its location of the driving range in a place where it could as a ‘reasonable person’ expect golf balls could be driven in a direction that would cause damage.  Students should discuss the requirements to establish each of these possible claims.
The property owners would likely be successful in a claim for an injunction to stop the use of the driving range – forcing the club to relocate it.

CASE 5
A fast food restaurant operated a ‘drive-thru’ service that allowed motorists to purchase food items and drinks without leaving their vehicles.  The restaurant was well-know for the quality of the coffee that it served, and much of its business reputation was based on this fact.  Restaurant advertising was designed to capitalize on its coffee reputation which it advertised as “the best and hottest coffee in town”.
One evening, a customer who frequently bought coffee at the restaurant purchased a large coffee from the drive-thru part of the operation.  When she received the coffee container, she placed it between her knees on the car seat and attempted to drive away.  Unfortunately, when she moved her leg to press on the accelerator, the coffee spilled, causing serious burns to both knees.  She was unable to work for over a week while her injuries healed, and decided to take legal action against the restaurant.
Outline the nature of her claim, and speculate as to the arguments that she and the restaurant owner might make to support their respective sides of the case.  Render a decision.

Comment:
This case concerns the duty of care of the restaurant to its customer.  The customer’s claim would be a claim of negligence and a breach of duty towards her.  Did the restaurant have a duty of care?  Was the duty met by the notice that it served the “hottest coffee in town”?
Would a reasonable person expect a customer to hold the coffee cup as she did and drive the vehicle?  Was the customer partially or wholly responsible for her injury?
Students may conclude that a reasonable person would not expect a customer to hold the coffee cup as she did, and that she would be entirely responsible for her injury.
The facts of the case are similar to those of a U.S. case where the jury concluded that the restaurant was liable for the injury.  A Canadian court may well have reached an opposite conclusion.