torts q

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stillwater
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Re: torts q

Postby stillwater » Thu Dec 06, 2012 12:24 am

When I brought up emergency, I said it would make the swerve not a voluntary act thus making the driver incapable of an intentional tort. Intentional tort= trespass. Negligence is a different animal.

musicfor18
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Re: torts q

Postby musicfor18 » Thu Dec 06, 2012 12:38 am

beta wrote:yup, breaks off some branches.


is that really cognizable harm? How could it be compensated? Would the city sue the D for the cost of gluing a couple more branches on the tree?

There's also the notion that life is valued over property. Therefore, if the D reasonably believed human life might be threatened by hitting the dog, then he has the privilege of damaging property to avoid it (always assuming, of course, that a reasonable and prudent driver in his situation would do the same).

I'm not sure how the law treats animal life. Probably the same as property.

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beta
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Re: torts q

Postby beta » Thu Dec 06, 2012 12:46 am

musicfor18 wrote:
beta wrote:yup, breaks off some branches.


is that really cognizable harm? How could it be compensated? Would the city sue the D for the cost of gluing a couple more branches on the tree?

There's also the notion that life is valued over property. Therefore, if the D reasonably believed human life might be threatened by hitting the dog, then he has the privilege of damaging property to avoid it (always assuming, of course, that a reasonable and prudent driver in his situation would do the same).

I'm not sure how the law treats animal life. Probably the same as property.


i think it is an actual damage to property, yes.

so consensus is negligence? not trespass?

i'm still torn--what about the substantial certainty (garratt v. dailey intent) that swerving would cause the car to enter onto someone's property?

musicfor18
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Re: torts q

Postby musicfor18 » Thu Dec 06, 2012 1:02 am

Yes. As I said in my first response, I don't think the emergency nature of the situation means it wasn't a volitional act. It sounds like Garrett v Dailey "substantial certainty" intent.

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beta
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Re: torts q

Postby beta » Thu Dec 06, 2012 1:33 am

i actually just did a quick search on westlaw.

a few cases say that it is an emergency type situation and swerving to avoid an oncoming truck is not trespass (because there is no requisite intent to trespass on that particular piece of land)--its negligence.

i think this would be an analogous situation.
i conclude it's negligence.




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