torts q

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beta
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torts q

Postby beta » Wed Dec 05, 2012 11:44 pm

is swerving into a public area (e.g. park) to avoid hitting an obstruction in the road a trespass or negligent driving?

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laxbrah420
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Re: torts q

Postby laxbrah420 » Wed Dec 05, 2012 11:46 pm

so like, you're allowed to drive there, you had to drive there, and nothing happened?

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gobuffs10
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Re: torts q

Postby gobuffs10 » Wed Dec 05, 2012 11:47 pm

I think trespass, as a case of private necessity.

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Re: torts q

Postby beta » Wed Dec 05, 2012 11:48 pm

did damage to a tree

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Re: torts q

Postby beta » Wed Dec 05, 2012 11:49 pm

i thought you needed certainty / intent to trespass -- so i assumed the charge would be negligent driving?

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stillwater
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Re: torts q

Postby stillwater » Wed Dec 05, 2012 11:49 pm

It's not trespass. It was not intentional.

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laxbrah420
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Re: torts q

Postby laxbrah420 » Wed Dec 05, 2012 11:50 pm

you also can't trespass onto land that you're allowed to drive on.

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Re: torts q

Postby beta » Wed Dec 05, 2012 11:51 pm

i mean it would be the sidewalk/part of the park that cars arent allowed into next to the road

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gobuffs10
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Re: torts q

Postby gobuffs10 » Wed Dec 05, 2012 11:52 pm

beta wrote:i thought you needed certainty / intent to trespass -- so i assumed the charge would be negligent driving?


Could you argue that the driver intended to drive into the park in order to avoid hitting the obstacle in the road, and that hitting something was a foreseeable consequence?

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Re: torts q

Postby swimmer11 » Wed Dec 05, 2012 11:53 pm

It would be negligence. But, I mean what obstruction in the road?

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Re: torts q

Postby beta » Wed Dec 05, 2012 11:53 pm

dog running into the road. sorry i should have just written the whole hypo, haha

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stillwater
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Re: torts q

Postby stillwater » Wed Dec 05, 2012 11:55 pm

gobuffs10 wrote:
beta wrote:i thought you needed certainty / intent to trespass -- so i assumed the charge would be negligent driving?


Could you argue that the driver intended to drive into the park in order to avoid hitting the obstacle in the road, and that hitting something was a foreseeable consequence?


Usually emergency situations, knee-jerk reactions like this, aren't treated as voluntary, thus you can't have an intentional tort.

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Re: torts q

Postby laxbrah420 » Wed Dec 05, 2012 11:56 pm

beta wrote:dog running into the road. sorry i should have just written the whole hypo, haha

duh

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gobuffs10
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Re: torts q

Postby gobuffs10 » Wed Dec 05, 2012 11:56 pm

stillwater wrote:
gobuffs10 wrote:
beta wrote:i thought you needed certainty / intent to trespass -- so i assumed the charge would be negligent driving?


Could you argue that the driver intended to drive into the park in order to avoid hitting the obstacle in the road, and that hitting something was a foreseeable consequence?


Usually emergency situations, knee-jerk reactions like this, aren't treated as voluntary, thus you can't have an intentional tort.


Ah gotcha. Yeah, we did a whole, oh, four classes on intentional tort. The entire class was strict liability with a dash of negligence.

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Re: torts q

Postby swimmer11 » Wed Dec 05, 2012 11:57 pm

That changes things, if a reasonable person in an emergency situation would have swerved out of the road then he is not negligent. But, were there other alternatives? could he have slowed down and pulled over?

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Re: torts q

Postby stillwater » Wed Dec 05, 2012 11:59 pm

swimmer11 wrote:That changes things, if a reasonable person in an emergency situation would have swerved out of the road then he is not negligent. But, were there other alternatives? could he have slowed down and pulled over?


I think you'd need to know how fast he was driving in relation to the speed limit. Probably would lead to a negligence per se situation if he was speeding.

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Re: torts q

Postby musicfor18 » Thu Dec 06, 2012 12:02 am

It's probably an intentional tort, with Garrett v. Dailey intent. But the D would have the defense of private necessity, in which case he'd not be liable for trespass to property, but would likely have to compensate for any property damage.

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Re: torts q

Postby musicfor18 » Thu Dec 06, 2012 12:06 am

But, yes, of course my answer needs to be qualified by an inquiry into whether the D was behaving as reasonable person would under the circumstances.

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Re: torts q

Postby smaug_ » Thu Dec 06, 2012 12:07 am

swimmer11 wrote:That changes things, if a reasonable person in an emergency situation would have swerved out of the road then he is not negligent. But, were there other alternatives? could he have slowed down and pulled over?


Also going to want to consider if the risk posed by swerving was greater than the harm caused by running the dog over. Reasonable response/emergency doctrine/blah blah blah.

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Re: torts q

Postby beta » Thu Dec 06, 2012 12:10 am

yeah i was thinking RPP in an emergency situation, and it would be negligence.
but some of my classmates have said trespass because when he swerved he knew with substantial certainty that he would run into *something*
but i think it's trickier because the swerve is into a public place--(sidewalk of a park) and damages a tree.

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jkpolk
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Re: torts q

Postby jkpolk » Thu Dec 06, 2012 12:11 am

beta wrote:yeah i was thinking RPP in an emergency situation, and it would be negligence.
but some of my classmates have said trespass because when he swerved he knew with substantial certainty that he would run into *something*
but i think it's trickier because the swerve is into a public place--(sidewalk of a park) and damages a tree.

Who's dog was it?

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Re: torts q

Postby beta » Thu Dec 06, 2012 12:12 am

sorry here's the whole hypo (condensed):

guy is driving down road at speed limit (25mph) and a stray dog which darts across the road. guy swerves to avoid stray dog and runs into a sidewalk of a public park and hits a tree.

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Re: torts q

Postby musicfor18 » Thu Dec 06, 2012 12:20 am

Does he cause any damage when he runs onto the sidewalk and hits the tree?

By the way, all this reasonable response/emergency doctrine stuff is nonsense. Those standards are already encapsulated in the duty of reasonable care under the circumstances. The question is whether a reasonable and prudent person who is faced with a split-second decision of what to do when a dog runs into the road would do what he did.

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Re: torts q

Postby musicfor18 » Thu Dec 06, 2012 12:22 am

hibiki wrote:Also going to want to consider if the risk posed by swerving was greater than the harm caused by running the dog over. Reasonable response/emergency doctrine/blah blah blah.


More importantly, you need to consider whether a reasonable and prudent person would have had time to even assess the comparative level of harm caused by the swerving vs hitting the dog.

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Re: torts q

Postby beta » Thu Dec 06, 2012 12:23 am

yup, breaks off some branches.




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