Torts Q

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Charles Barkley
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Re: Torts Q

Postby Charles Barkley » Sat Oct 16, 2010 3:20 pm

kopper wrote:
joobacca wrote:
kalvano wrote:
APHill wrote:Good luck on your exams!!! Tell your classmates I said they are some lucky bastards.



See edit above. He specifically said "upon seeing the spider, he jumped back at the sight of it", not "upon reaching in and rummaging through the desk."

again, i have to warn you all that it's been a year and i hated torts.

but the touching thing. i think you can set into motion some shit that leads to contact. it's like hitting a black guy's tray because you're a racist. or putting poison in a coffee for A to drink. maybe B ends up drinking it.

C sees the spider here. but there is H/O contact in the fall/injury. would it not be like seeing an old lady going sit down and yanking the chair? there's no "contact" in the sense of anything from the yanker to the old lady. but there's substantial certainty that the yanking will cause a H/O contact. perhaps putting a big ass spider in a certain location, and the surroundings of that location would be enough to establish sub cert to cause H/O contact. i'm just thinking out loud here.. i'm not saying this is a battery here, but to close it out without trying to explore bullshit arguments might cost you points.


I agree this is a transfer of intent case and I don't know that it qualifies as a battery however I think joobacca is on the right path. I was thinking of the same example of the kid removing the chair and the old lady falling down. Its not a definite case but as he warns there could be an argument made and likely a good one for battery. I would also question that "implied consent" is transferrable. If we were to remove C and the same thing happened but happened to B I think there is a case or argument for implied consent. However, I don't think there is any implied consent with C and I don't believe that it transfers as does intent.

In that case, Garratt v. Dailey, the defendant was substantially certain the contact was going to result. In this case, you would have to argue for substantial certainty as well. You can argue that A was substantially certain B would see the fake spider, not necessarily come into contact with it. But even if he was certain of that, A most likely could not have been substantially certain C was going to come into contact with the fake spider.

I just think arguing transferred intent is a rather weak argument in this scenario. Not to mention, there was no direct or indirect contact and the prior history of pranks between A and B.

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joobacca
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Re: Torts Q

Postby joobacca » Sat Oct 16, 2010 3:26 pm

In that case, Garratt v. Dailey, the defendant was substantially certain the contact was going to result. In this case, you would have to argue for substantial certainty as well. You can argue that A was substantially certain B would see the fake spider, not necessarily come into contact with it. But even if he was certain of that, A most likely could not have been substantially certain C was going to come into contact with the fake spider.

I just think arguing transferred intent is a rather weak argument in this scenario. Not to mention, there was no direct or indirect contact.


I don't think anyone is saying that it's a lock here.

Can you make a reasonable argument that A had substantial certainty that someone other than B would find this giant ass spider and that would lead to a HO contact? And that the finder is an over-sensitive pussy should be covered under the eggshell?

I can't recall the BLL, especially on transfer of intent, too well.

Maybe there needs to be more factual details about the drawer. Perhaps it might be relevant whether the drawer was used by others, whether it was locked, etc.

EDIT: I don't think that made any sense because I think I am mixing totally raping the BLL here. I'm out of this thread because I have forgotten torts.
Last edited by joobacca on Sat Oct 16, 2010 3:30 pm, edited 1 time in total.

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kalvano
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Re: Torts Q

Postby kalvano » Sat Oct 16, 2010 3:30 pm

I think A can be substantially certain that B would scream like a little girl, but that someone would be seriously injured over it?

That's a wee bit of a stretch.

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Re: Torts Q

Postby jjamesChess » Sat Oct 16, 2010 3:31 pm

It is not essential that the precise injury which was done be the one intended. 1 Cooley, Torts (4th Ed.). § 98. An act designed to cause bodily injury to a particular person is actionable as a battery not only by the person intended by [***8] the actor to be injured but also by another who is in fact so injured. 4 Restatement (Second), 1 Torts § 13; Singer v. Marx, 144 Cal. App. 2d 637, 301 P.2d 440; Smith v. Moran, 43 Ill. App. 2d 373, 193 N.E.2d 466; McGee v. Vanover, 148 Ky. 737, 147 S.W. 742; Talmage v. Smith, 101 Mich. 370, 59 N.W. 656; Carnes v. Thompson, 48 S.W.2d 903 (Mo.); Morrow v. Flores, 225 S.W.2d 621 (Tex. Civ. App.); Bannister v. Mitchell, 127 Va. 578, 104 S.E. 800; Prosser, Torts (4th Ed.) § 8; 1 Harper & James, Torts § 3.3, [*335] p. 218. This principle of "transferred intent" applies as well to the action of assault. See Davis v. McKey, 167 So. 2d 416 (La. App.); Jeppsen v. Jensen, 47 Utah 536, 155 P. 429; Prosser, supra; 6 Am. Jur. 2d, Assault and Battery, § 115. And where one intends merely an assault, if bodily injury results to one other than the person whom the actor intended to put in apprehension of bodily harm, it is battery actionable by the injured person. Restatement (Second), 1 Torts § 16; 5 Brown v. Martinez, 68 N.M. 271, 361 P.2d 152; Daingerfield v. Thompson, 74 Va. (33 Gratt.) 136; Prosser, [***9] supra.

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Charles Barkley
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Re: Torts Q

Postby Charles Barkley » Sat Oct 16, 2010 3:35 pm

jjamesChess wrote:It is not essential that the precise injury which was done be the one intended. 1 Cooley, Torts (4th Ed.). § 98. An act designed to cause bodily injury to a particular person is actionable as a battery not only by the person intended by [***8] the actor to be injured but also by another who is in fact so injured. 4 Restatement (Second), 1 Torts § 13; Singer v. Marx, 144 Cal. App. 2d 637, 301 P.2d 440; Smith v. Moran, 43 Ill. App. 2d 373, 193 N.E.2d 466; McGee v. Vanover, 148 Ky. 737, 147 S.W. 742; Talmage v. Smith, 101 Mich. 370, 59 N.W. 656; Carnes v. Thompson, 48 S.W.2d 903 (Mo.); Morrow v. Flores, 225 S.W.2d 621 (Tex. Civ. App.); Bannister v. Mitchell, 127 Va. 578, 104 S.E. 800; Prosser, Torts (4th Ed.) § 8; 1 Harper & James, Torts § 3.3, [*335] p. 218. This principle of "transferred intent" applies as well to the action of assault. See Davis v. McKey, 167 So. 2d 416 (La. App.); Jeppsen v. Jensen, 47 Utah 536, 155 P. 429; Prosser, supra; 6 Am. Jur. 2d, Assault and Battery, § 115. And where one intends merely an assault, if bodily injury results to one other than the person whom the actor intended to put in apprehension of bodily harm, it is battery actionable by the injured person. Restatement (Second), 1 Torts § 16; 5 Brown v. Martinez, 68 N.M. 271, 361 P.2d 152; Daingerfield v. Thompson, 74 Va. (33 Gratt.) 136; Prosser, [***9] supra.


That's all fine and dandy, but exactly what injury/result was intended here in the scenario we have been discussing?

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Re: Torts Q

Postby jjamesChess » Sat Oct 16, 2010 3:39 pm

And where one intends merely an assault, (A to B via the spider, A wants to place B in apprehension of bodily harm )

if bodily injury results to one other than the person whom the actor intended to put in apprehension of bodily harm, (A to C, via C falling/ankle injury)

it is battery actionable by the injured person. (A liable to C for assult and battery)

Restatement (Second), 1 Torts § 16; 5 Brown v. Martinez, 68 N.M. 271, 361 P.2d 152; Daingerfield v. Thompson, 74 Va. (33 Gratt.) 136; Prosser, [***9] supra.

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Mroberts3
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Re: Torts Q

Postby Mroberts3 » Sat Oct 16, 2010 3:47 pm

jjamesChess wrote:It is not essential that the precise injury which was done be the one intended. 1 Cooley, Torts (4th Ed.). § 98. An act designed to cause bodily injury to a particular person is actionable as a battery not only by the person intended by [***8] the actor to be injured but also by another who is in fact so injured. 4 Restatement (Second), 1 Torts § 13; Singer v. Marx, 144 Cal. App. 2d 637, 301 P.2d 440; Smith v. Moran, 43 Ill. App. 2d 373, 193 N.E.2d 466; McGee v. Vanover, 148 Ky. 737, 147 S.W. 742; Talmage v. Smith, 101 Mich. 370, 59 N.W. 656; Carnes v. Thompson, 48 S.W.2d 903 (Mo.); Morrow v. Flores, 225 S.W.2d 621 (Tex. Civ. App.); Bannister v. Mitchell, 127 Va. 578, 104 S.E. 800; Prosser, Torts (4th Ed.) § 8; 1 Harper & James, Torts § 3.3, [*335] p. 218. This principle of "transferred intent" applies as well to the action of assault. See Davis v. McKey, 167 So. 2d 416 (La. App.); Jeppsen v. Jensen, 47 Utah 536, 155 P. 429; Prosser, supra; 6 Am. Jur. 2d, Assault and Battery, § 115. And where one intends merely an assault, if bodily injury results to one other than the person whom the actor intended to put in apprehension of bodily harm, it is battery actionable by the injured person. Restatement (Second), 1 Torts § 16; 5 Brown v. Martinez, 68 N.M. 271, 361 P.2d 152; Daingerfield v. Thompson, 74 Va. (33 Gratt.) 136; Prosser, [***9] supra.


The bold is sort of what I was thinking. If I shoot at you just to scare you (assault) but miss and hit someone else, the intent would transfer (no need to show that it was substantially certain -- I could have aimed high and the victim is a mile away out of sight). Substantial certainty is just a back up to meet the intent requirement when direct proof of intent is missing.

I think you can transfer an assault on B to battery on C when we only know that B would be afraid of the spider and not some hypothetical C. I think you can make this argument because C just happened to be another eggshell victim like B.

I think where the case would fall off the rails is implied consent between A and B. B implicitly consents to such actions, so A's spider prank wasn't an assault on B in the first place, so there is nothing to transfer to C.

Putting a spider in a drawer on its own isn't enough to be a battery or assault without specific intent, so C's claim would fail against A unless it can be piggybacked onto an assault claim against B (which I don't think it can).

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danidancer
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Re: Torts Q

Postby danidancer » Sat Oct 16, 2010 4:53 pm

I think battery's out due to the non-touching. What about negligence though? A had a duty to not put a spider in B's desk...

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Re: Torts Q

Postby christmas mouse » Sat Oct 16, 2010 5:21 pm

*IF*
A attempts assault on B
A's intent transfers to commit a battery on C (fear of spider causing her to trip and her foot making harmful contact with the floor leading to a broken ankle).
This discussion is over.

*BUT*
The implied consent between A & B may make it so that A did not have the requisite intent and did not commit an intentional tort.


*Negligence?!?!?*
Does A owe a duty to her coworkers to act reasonable? (Not put scary crap in their drawers) Of course.

Did A breach that duty? (Is a large plastic spider scary?) Sure.

Was A the but-for cause of C's harm? Definitely (Please no one try to argue that her high heels, or the char right behind her also caused the fall because its no excuse that that there were other but-for causes).

Was C tripping and breaking her ankle foreseeable? aka Was the risk of this harm occurring in the initial basket of risks created by A's negligence? Thats for the jury to decide, but it would be no excuse that C shouldn't have been going through B's drawers because she was clearly a foreseeable plaintiff (co worker, same floor, people go through other people's crap). Is it crazy to think someone could freak and trip if they open a drawer and see a huge hairy spider? Not so crazy.

Was there a harm? C's broken ankle.

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Re: Torts Q

Postby christmas mouse » Sat Oct 16, 2010 5:26 pm

danidancer wrote:I think battery's out due to the non-touching. What about negligence though? A had a duty to not put a spider in B's desk...


You don't have to actually make contact with the P, just a contact has to occur.
Ex.
A attempts to push B, B steps back to avoid it and falls down the stairs and breaks his left eye socket and his thumb falls off!!!
A never made contact with B, but there was certainly a harmful and offensive contact. While A only wanted to weakly shove B out of her way, this is the harm that occurred and A is liable.

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Charles Barkley
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Re: Torts Q

Postby Charles Barkley » Sat Oct 16, 2010 7:02 pm

christmas mouse wrote:*IF*
A attempts assault on B
A's intent transfers to commit a battery on C (fear of spider causing her to trip and her foot making harmful contact with the floor leading to a broken ankle).
This discussion is over.

*BUT*
The implied consent between A & B may make it so that A did not have the requisite intent and did not commit an intentional tort.


*Negligence?!?!?*
Does A owe a duty to her coworkers to act reasonable? (Not put scary crap in their drawers) Of course.

Did A breach that duty? (Is a large plastic spider scary?) Sure.

Was A the but-for cause of C's harm? Definitely (Please no one try to argue that her high heels, or the char right behind her also caused the fall because its no excuse that that there were other but-for causes).

Was C tripping and breaking her ankle foreseeable? aka Was the risk of this harm occurring in the initial basket of risks created by A's negligence? Thats for the jury to decide, but it would be no excuse that C shouldn't have been going through B's drawers because she was clearly a foreseeable plaintiff (co worker, same floor, people go through other people's crap). Is it crazy to think someone could freak and trip if they open a drawer and see a huge hairy spider? Not so crazy.

Was there a harm? C's broken ankle.

Your analysis of negligence is just incorrect.

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danidancer
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Re: Torts Q

Postby danidancer » Sat Oct 16, 2010 8:17 pm

Charles Barkley wrote:Your analysis of negligence is just incorrect.


How so?

Duty - yes, there is a duty to not put fake spiders in your co-worker's things.
Breach - yes, A breached this duty.
Damages - yes, C was injured.

As for causation, but-for is definitely satisfied (C would not have been injured had A not put the spider in the desk). So it comes down to whether or not the spider was the proximate cause. I think christmas mouse was correct that there's a strong enough argument for proximate cause to get past a judge to let a jury decide.

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Re: Torts Q

Postby Melkaba » Sun Oct 17, 2010 3:22 pm

danidancer wrote:
Charles Barkley wrote:Your analysis of negligence is just incorrect.


How so?

Duty - yes, there is a duty to not put fake spiders in your co-worker's things.
Breach - yes, A breached this duty.
Damages - yes, C was injured.

As for causation, but-for is definitely satisfied (C would not have been injured had A not put the spider in the desk). So it comes down to whether or not the spider was the proximate cause. I think christmas mouse was correct that there's a strong enough argument for proximate cause to get past a judge to let a jury decide.


Forgive me, since I'm not really all that used to issue-spotting just yet, but wouldn't the negligence line of argumentation really encounter problems right at the get-go with whether a duty was owed (let alone whether a duty even exists in this context?) I mean, prior history between A and B nonwithstanding, the problem comes up to whether or not A owed a duty to a person who may or may not have been anticipated to search through B's desk. If this answer is negative and C wasn't really supposed to go through B's desk, then you could argue that A owed C no duty simply because C was outside of the zone of foreseeable risk. (Not 100% positive, but I don't think that transferred intent would work with an intent-less tort like negligence). Plus, the biggest con with the confirmation of this kind of duty would lead to exceptionally overcautious co-workers who would fear liability from every one even in the case of practical joking as opposed to liability when it's just the one being pranked being concerned.

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Re: Torts Q

Postby savagecheater » Sun Oct 17, 2010 3:38 pm

Melkaba wrote:
danidancer wrote:
Charles Barkley wrote:Your analysis of negligence is just incorrect.


How so?

Duty - yes, there is a duty to not put fake spiders in your co-worker's things.
Breach - yes, A breached this duty.
Damages - yes, C was injured.

As for causation, but-for is definitely satisfied (C would not have been injured had A not put the spider in the desk). So it comes down to whether or not the spider was the proximate cause. I think christmas mouse was correct that there's a strong enough argument for proximate cause to get past a judge to let a jury decide.


Forgive me, since I'm not really all that used to issue-spotting just yet, but wouldn't the negligence line of argumentation really encounter problems right at the get-go with whether a duty was owed (let alone whether a duty even exists in this context?) I mean, prior history between A and B nonwithstanding, the problem comes up to whether or not A owed a duty to a person who may or may not have been anticipated to search through B's desk. If this answer is negative and C wasn't really supposed to go through B's desk, then you could argue that A owed C no duty simply because C was outside of the zone of foreseeable risk. (Not 100% positive, but I don't think that transferred intent would work with an intent-less tort like negligence). Plus, the biggest con with the confirmation of this kind of duty would lead to exceptionally overcautious co-workers who would fear liability from every one even in the case of practical joking as opposed to liability when it's just the one being pranked being concerned.


waddup palsgraf.

I actually think that the issue of foreseeability as to C's going into B's desk hasn't been properly addressed.

You'd have to make the case for C that A had reason to foresee C's entry into the desk. 'Looking for something' could mean anything, from an innocent scouring of RED SWINGLINE STAPLERS to a malicious drive to steal the granola bar in B's desk.

Either way, I think that the issue of foreseeability as to C re: Palsgraf would be a good issue to note.


Then again we haven't gone over intent or battery in my torts class so I'm probably completely wrong!

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vandalvideo
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Re: Torts Q

Postby vandalvideo » Sun Oct 17, 2010 4:02 pm

I would totally charge her with outrageousness with transfered intent, because that is pretty outrageous.

*Equips monacle*

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Re: Torts Q

Postby christmas mouse » Sun Oct 17, 2010 5:15 pm

Melkaba wrote:
danidancer wrote:
Charles Barkley wrote:Your analysis of negligence is just incorrect.


How so?

Duty - yes, there is a duty to not put fake spiders in your co-worker's things.
Breach - yes, A breached this duty.
Damages - yes, C was injured.

As for causation, but-for is definitely satisfied (C would not have been injured had A not put the spider in the desk). So it comes down to whether or not the spider was the proximate cause. I think christmas mouse was correct that there's a strong enough argument for proximate cause to get past a judge to let a jury decide.


Forgive me, since I'm not really all that used to issue-spotting just yet, but wouldn't the negligence line of argumentation really encounter problems right at the get-go with whether a duty was owed (let alone whether a duty even exists in this context?) I mean, prior history between A and B nonwithstanding, the problem comes up to whether or not A owed a duty to a person who may or may not have been anticipated to search through B's desk. If this answer is negative and C wasn't really supposed to go through B's desk, then you could argue that A owed C no duty simply because C was outside of the zone of foreseeable risk. (Not 100% positive, but I don't think that transferred intent would work with an intent-less tort like negligence). Plus, the biggest con with the confirmation of this kind of duty would lead to exceptionally overcautious co-workers who would fear liability from every one even in the case of practical joking as opposed to liability when it's just the one being pranked being concerned.


This is a reasonable argument, but i believe (and i'm just a 1L trying to make sense of torts) that you can't equate the foreseeability of C going into B's desk with duty.

The question of duty is the question of should the defendant act reasonably. In most cases the standard of care is to act like a reasonable person. When figuring out how a reasonable person would act the jury uses Learned Hand Formula B<PL

If Burden of acting or not acting is less than Probability (Risk of all possible harms) and Gravity of injury, the D acted negligently.

In this case the duty question is whether an employee owes a duty to his coworkers to not put scary stuff into their drawers. (I don't think it matters that A intended it to be a prank, and in negligence the idea of implied consent between A & B does not matter because the duty question does not pertain specifically to A & B, it applies to the category of Plaintiff which C is in because C suffered the harm. This category is coworkers).

1. I believe there is a duty to act reasonably to your coworkers.

2. Did A breach that duty? If reasonable persons can differ this is a question for the jury.
Burden of not putting scary fake spider into desk is low, (again i don't think the prank intent matters here because if a D does not act reasonably and someone gets hurt he should not have an excuse that he was just kidding to escape liability). In this case the probability of harm from putting a fake spider in coworkers desk is not crazy high, but also not crazy low. Reasonable persons could differ.

In this case I believe a jury would find that the burden was less than probability of harm and gravity of injury, so A did act negligently.
If the jury is unhappy with how A weighed the B<PL the jury should use a B<PL to find the burden of A getting the required knowledge to have made a better decision. Since the burden of getting requisite knowledge is lower than PL, A acted negligently in not acting reasonably, and not getting the proper information to make an informed decision.

3. Cause in fact - Check (But for A's negligence, C would not have suffered the harm)

4. Proximate Cause - Here you don't look at the specific harm that occurred, but look at the foreseeability that any harm which was in the initial basket of harms could occur. Again is it foreseeable that someone sees a hairy spider in their desk, thinks its real, and jumps back tripping and injuring themselves? Jury question, but I think that yes they could believe that this type of harm was foreseeable from the initial negligent act.

5. harm - C's ankle injury

I'm pretty sure i'm right about the causation issue, but i am not sure in regards to duty and breach of that duty. I know that duty is not a jury question, the judge decides if there is a duty. Standard of care is a jury question and i think all it means is if D breached the duty by not acting reasonably. Sometimes judges will set the standard of care by using a statute, or deciding that reasonable person could not differ based on the facts of the case. If the speed limit is 30 and a defendant was going 70, a judge could direct the verdict on standard of care which would be him saying that yes D was negligent. But in a "general" negligence question the jury's use of B<PL sets the standard of care and at the same time decides if D breached that standard.

Hopefully someone who knows, doesnt think they know, but actually knows the answer could help us out here because there have been a ton of varied responses and I would love to get a legit answer so we everyone who reads this thread is not jumbled and potentially screwed.

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vandalvideo
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Re: Torts Q

Postby vandalvideo » Sun Oct 17, 2010 7:21 pm

@Christmas Mouse; The Hand Formula is one (of many) ways to determine if a person breached a given duty, but it isn't a formulation in and of itself of whether the duty existed in the first place; a calculation largely based on five sources;

A) Affirmative actions by the D which would place the V in a greater risk than they would have otherwise been in.

B) Undertakings by D which creates a duty under section 343 of Second Restatement of torts; If you voluntarily assume the duty to help, then you must do so non-negligently.

C)Special relationships between D and V; Doctors, airlines, family members, etc.

D) Those who own land and have a duty to people who may be upon said land.

E)Public duties created because you're a police officer.

Those are the primary sources of duty (that Muh torts professor has felt the need to impart on me so far).

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Re: Torts Q

Postby danidancer » Sun Oct 17, 2010 8:48 pm

savagecheater wrote: Then again we haven't gone over intent or battery in my torts class so I'm probably completely wrong!


And we're not going over Palsgraf until the end of this week. :D

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kalvano
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Re: Torts Q

Postby kalvano » Mon Oct 18, 2010 5:09 pm

For what it's worth, I showed this hypo to my prof and he said no battery. There was implied consent in the practical jokes, and that since there was no intent to do or cause a harmful touching, C has nothing on A in that respect.

He said the best chance for recovery is under negligence, but even then C might have a problem since he was possibly committing a tort by going through B's desk.

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Re: Torts Q

Postby keg411 » Mon Oct 18, 2010 6:03 pm

kalvano wrote:For what it's worth, I showed this hypo to my prof and he said no battery. There was implied consent in the practical jokes, and that since there was no intent to do or cause a harmful touching, C has nothing on A in that respect.

He said the best chance for recovery is under negligence, but even then C might have a problem since he was possibly committing a tort by going through B's desk.


Also, negligence would be a problem b/c of the proximate cause issue stated above, unless A could have foreseen C going in B's desk for some reason (but that would have to be fact-specific).

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Re: Torts Q

Postby christmas mouse » Tue Oct 19, 2010 12:43 pm

keg411 wrote:
kalvano wrote:For what it's worth, I showed this hypo to my prof and he said no battery. There was implied consent in the practical jokes, and that since there was no intent to do or cause a harmful touching, C has nothing on A in that respect.

He said the best chance for recovery is under negligence, but even then C might have a problem since he was possibly committing a tort by going through B's desk.


Also, negligence would be a problem b/c of the proximate cause issue stated above, unless A could have foreseen C going in B's desk for some reason (but that would have to be fact-specific).


The post above yours sounds right, but i dont know exactly what it means when the victim of negligence brought upon his harm by committing (im guessing your prof was referring to trespass to chattels) an intentional tort.

If C had also been negligent, then it would be contributory negligence.

But your analysis of proximate cause leaves a little to be desired:
The question to be asked when figuring out the scope of liability isnt whether the D could have foreseen the specific injury happening to the P. That is too narrow a question and P's would likely never recover because the probability will always be too low.

The right question is whether the harm that occurred was in the bundle, basket, list, etc. of risks that came from D's negligent conduct. In this case:

Is getting startled, tripping, and breaking your ankle (harm that occurred) one of the risks from opening your drawer and seeing a huge hairy spider (D's negligent conduct)?

I think this would definitely make it to a jury.

It helps me to look at it this way: Lets say this wasnt specifically B's desk and A didnt put the spider in there to play a prank, he just was in a rush to a meeting, realized he was carrying a big fake spider (one of his kids toys) and just put it in the common office desk where people usually keep sugar for their coffee.

C opens drawer looking for sugar, sees spider, gets startled, trips, and breaks his ankle. Lets say it wasnt C or any other employee who A would "foresee" would use the desk, lets say some delivery guy or customer, was told he could grab some coffee and he got hurt. Under your theory of foreseeability A could argue that he never expected delivery guy / customer to go in the desk, but this argument wouldnt matter.

We would want C, and D, and E, and anyone else to be able to recover damages in such a situation. A was negligent, his negligence was the but for cause, and an injury occurred. A very cut and dry case of negligence.

In our hypo, Should it make a difference that A did it to cause a prank? I dont think so, the motivation wouldnt matter in a negligence case because no matter what he intended, he was negligent. His intent would only matter for the intentional torts questions.

Does it matter that A didnt foresee that C could open the drawer? No that has nothing to do with the proximate cause analysis. If this harm that occurred was a risk that came from A's neg conduct than it could be the proximate cause (depending on how the jury votes).

The only time I think the fact that C shouldnt have been going in B's desk would matter is if he was negligent himself in going through B's crap, and was also a but for cause of the harm.

Was C negligent? Not even gonna try because i dont know. I mean what was he looking for? Some extra staples? well then no i dont think he is negligent. Was he trying to steal B's favorite Marky Mark and the funky bunch album? Well then he tried to commit conversion, but i dont know if that would bar him from recovering damages for A's negligence. (The case of the burglar who injures himself on a sharp knife laying on the counter at night of a house he is robbing).

Negligence is a very fact oriented analysis. At least the breach, and causation aspects are.
From what we have in the hypo, It's either A committed battery on C, or A's negligence caused C's injuries. I dont know what C's intent was and even if i did I dont know enough to do anything more than speculate as to what effects it has on the case.

Will someone who knows torts please help us?

keg411
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Re: Torts Q

Postby keg411 » Tue Oct 19, 2010 2:11 pm

BTW, I screwed up above (I originally wrote something up on pc, but it was tl;dr worthy so I deleted it). I was trying to eliminate "C as a trespasser" and I was thinking along the lines of duty, not proximate cause (i.e. if A could have foreseen that C would go into B's desk). Without establishing duty, you don't even get to proximate cause (unless you go along the lines of "everyone has a duty to everyone else and status doesn't make a difference" like in CA/Restatement Thrid).

However, if you can establish duty, I think you can establish proximate cause. Seeing something scary, like a spider, can foreseeably make someone "jump" which could foreseeably cause an injury such along the lines as a broken ankle.

I don't think there is battery here at all (although we have yet to cover intentional torts).

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reasonable_man
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Re: Torts Q

Postby reasonable_man » Tue Oct 19, 2010 2:22 pm

This is not assult/battery. Its just not.

With respect to negligence, it really depends which venue you are in.... Supreme Court, Kings County (Brooklyn NY) and this sucker is negligence all the way baby... Judge denies your motion for summary judgment and a jury comprised mostly of poorly educated low income people gladly hand over 25k to 50k for pain and suffering and another X amount of dollars for loss of earnings. If this bad boy is venued in the Supreme Court, Nassau County (Long Island, NY), the jury doesn't even get this question, the judge dismisses the case either a) for lack of forseability or b) lack of duty.

christmas mouse
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Re: Torts Q

Postby christmas mouse » Tue Oct 19, 2010 3:41 pm

im with you about the negligence issue ranging based on venue, although i dont think a judge should direct a verdict based on foreseeability. Especially in this case, he should leave that to the jury, but i accept the fact that he could and you have more experience than me with these courts and can make a better prediction to outcome.

I'd love it if you could explain the reasons why a judge could call this a no duty case. I figured employees have a duty to act reasonably to their coworkers. You could argue putting a plastic spider in someone's desk doesnt breach that duty, but thats a negligence issue, not so much a duty issue. Does it have something to do with C having no right to go through B's desk?

In regards to the battery issue, yea in this case its not there, but minus the prank history (implied consent) between A & B, if A put the spider in B's desk with the intent to create fear or apprehension of an immediate contact (Assault), and C went in the desk, got scared, tripped, and broke his ankle (Battery) wouldnt the intent to commit assault on B transfer to Battery on C?

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reasonable_man
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Re: Torts Q

Postby reasonable_man » Tue Oct 19, 2010 4:02 pm

christmas mouse wrote:im with you about the negligence issue ranging based on venue, although i dont think a judge should direct a verdict based on foreseeability. Especially in this case, he should leave that to the jury, but i accept the fact that he could and you have more experience than me with these courts and can make a better prediction to outcome.

I'd love it if you could explain the reasons why a judge could call this a no duty case. I figured employees have a duty to act reasonably to their coworkers. You could argue putting a plastic spider in someone's desk doesnt breach that duty, but thats a negligence issue, not so much a duty issue. Does it have something to do with C having no right to go through B's desk?

In regards to the battery issue, yea in this case its not there, but minus the prank history (implied consent) between A & B, if A put the spider in B's desk with the intent to create fear or apprehension of an immediate contact (Assault), and C went in the desk, got scared, tripped, and broke his ankle (Battery) wouldnt the intent to commit assault on B transfer to Battery on C?



I've seen judges conflate "no duty" to "no breach of duty" in cases where its just obvious that there is no cause of action for negligence. I had such a case overturned on appeal to the second circuit against me very recently. The trial judge in this case has sat on the SDNY for over 20 years and was willing to buy my "no-duty" argument when it was clear that there was a duty, just no breach thereof. Sadly, this did not fly with the Court of Appeals.

This case sucks for a whole different reason though. In most states, workers' compensation acts as a bar to recovery where the employer pays workers' compensation benefits to an injured employee. The injuries suffered by the employee would absolutely fall under the applicable workers' comp policy, thus, the employer could not be directly sued (thus eliminating from the mix the employer's general liability insurance policy of at least 1 million in coverage). In that situation, the only recourse is against the uninsured employee, who likely, has nothing. If you thought a judge was likely to find a reason to dismiss this case when the defendant was the employer or the employee being defended under the employers GL policy; wait to you see how fast the judge finds a reason to get rid of this case where the employee is pro se and faces potential personal liability.




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