Top Law Schools

thanks

Change snowball to knife and tell me if your hypo makes sense...

PS: Tortious intent is merely the intent to do the action which causes harm. Consent does not negate intent; it's an affirmative defense to the "unwanted or offensive contact" part of battery (go look at the restatement for elaboration)- if the contact was consented to, the person can't say it was unwanted or offensive (unless the action they consented to was dramatically different than the action that occurred)

If P didn't explicitly or implicitly give consent then this is still a battery. Consent as an affirmative defense applies on to those who have given consent. The fact that T, the one who the contact was intended for, did give consent is irrelevant because we don't give a darn about whether T found the snowball hitting P to be an "offensive" contact.

The best defense for a snowball based tort would be one of implicit consent or that a "reasonable person" would not find the contact offensive. If P decided to stroll through the middle of the park where there were fifty kids having a big snowball battle, a court would probably say consent is implicit. At the same time, it's hard to rationalize awarding damages to someone who got hit by a snowball unless it turned out to be an eggshell skull type case (or maybe the snowball was actually an iceball, which a reasonable person would certainly object to).

American_in_China wrote:Change snowball to knife and tell me if your hypo makes sense...

Not so fast, the scenario can be plausible with a knife.

Scenario One:
Defendant works at a carnival as a knife thrower. His assistant consents to allowing him to throw knives at her on a spinning wheel, a knife misses and hits a person in the stands.

Is this negligence or a transferred intent case?

Scenario Two:
Defendant is packing his house up to move with the help of two friends, A and B. Friend A asks the defendant to toss him a scissors so he can cut some packaging materials. Defendant throws the scissors and they graze friend B in the eye.

Is this negligence or a transferred intent case?

seahawk32 wrote:D throws a snowball at T, who has consented to the contact. D misses T, and instead the snowball hits P, who has not consented to the contact.

Does transferred intent apply? I think consent is a defense. Therefore, D has prima facie assaulted T, but since T has consented, there is no tort. Is it accurate to say that D has tortious intent (to batter T), and therefore it transfers to P, or does the consent negate the tortious intent?

P v. D = Negligence imo.

American_in_China wrote:PS: Tortious intent is merely the intent to do the action which causes harm. Consent does not negate intent; it's an affirmative defense to the "unwanted or offensive contact" part of battery (go look at the restatement for elaboration)- if the contact was consented to, the person can't say it was unwanted or offensive (unless the action they consented to was dramatically different than the action that occurred)

If P didn't explicitly or implicitly give consent then this is still a battery. Consent as an affirmative defense applies on to those who have given consent. The fact that T, the one who the contact was intended for, did give consent is irrelevant because we don't give a darn about whether T found the snowball hitting P to be an "offensive" contact.

The best defense for a snowball based tort would be one of implicit consent or that a "reasonable person" would not find the contact offensive. If P decided to stroll through the middle of the park where there were fifty kids having a big snowball battle, a court would probably say consent is implicit. At the same time, it's hard to rationalize awarding damages to someone who got hit by a snowball unless it turned out to be an eggshell skull type case (or maybe the snowball was actually an iceball, which a reasonable person would certainly object to).

This is so dumb. If there's no tort to start it can't be transferred. I think you could probably do away with all of negligence with your crazy analyses here