torts q Forum

[beta]

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

[laxbrah420]

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

[gobuffs10]

I think trespass, as a case of private necessity.

[beta]

did damage to a tree

[beta]

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

[stillwater]

It's not trespass. It was not intentional.

[laxbrah420]

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

[beta]

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

[gobuffs10]

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?

[swimmer11]

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

[beta]

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

[stillwater]

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.

[laxbrah420]

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

duh

[gobuffs10]

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.

[swimmer11]

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?

[stillwater]

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.

[musicfor18]

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.

[musicfor18]

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.

[smaug_]

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.

[beta]

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.

[jkpolk]

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?

[beta]

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.

[musicfor18]

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.

[musicfor18]

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.

[beta]

yup, breaks off some branches.