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Author Topic: torts hypo input?  (Read 949 times)

pacificcoast

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torts hypo input?
« on: December 15, 2006, 03:45:40 PM »
is there any way whatsoever that there could be a negligence claim against a child for shooting a bb gun at a thanksgiving day parade balloon and the resulting harm? he knew he was shooting at the balloon and purposefully aimed the gun at the balloon. that is, i know the parents are negligent, but if he intended to shoot at the balloon - can he still be deemed negligent?

drbuff123

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Re: torts hypo input?
« Reply #1 on: December 15, 2006, 03:53:36 PM »
If a BB gun is inherently dangerous/ adult activity then the child is held to an adult standard of care.  If it is not considered an adult activity then we would need to know the age of the child.  I don't know where intent comes into the analysis regarding a negligence claim.

wardwilliams

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Re: torts hypo input?
« Reply #2 on: December 15, 2006, 03:55:38 PM »
States with "tender years" doctrines (usually under 7 years old) say that children cannot be held negligent as a matter of law.  However if there is no such doctrine or if the kid is over 7, he is held liable to the extent he acted unreasonably compared to a similar child of like age and experience.  If the kid was 14, he is proabably liable because most 14 year olds know not to shoot BB guns in a crowded holiday parade.  Also, the parent's are defintely not necessarily strictly liable for the negligence of the kid.  The only way they can be is if they meet BOTH of the following conditions: 1) they were on notice that the kid is prone to this type of activity based on his prior actions (if he had a history of shooting BB guns) AND if 2) they also were in a position to do something about it.  If they were not at the parade they are not strictly liable for the kid's negligence.

pacificcoast

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Re: torts hypo input?
« Reply #3 on: December 15, 2006, 04:24:44 PM »
but what about the fact that he *intended* to shoot at the balloon? can he still be held liable for negligence? i say yes, as you owe a duty of care to those around you when you shoot a bb gun, foreseeable harm being shot or hit with something that was shot and falls on you. i also think you could be liable for an intentional tort (trespass to chattels transfers into battery - he intended to shoot the balloon) - my question - can he still be held liable under a negligence regime in tort even though there was intent to shoot the balloon? i say yes.

wardwilliams

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Re: torts hypo input?
« Reply #4 on: December 15, 2006, 04:39:02 PM »
I don't know what you mean when you say negligence regime.  If he intended to shoot the balloon then by definition it is no longer negligence, it is an intentional tort.  I think your right about the transferred intent, he meant to commit a trespass to a thing so that satisfies the intent element of a battery--theoretically at least.  Whether it would pass a "straight face" test with the judge or jury is another matter.  You could proably just satisfy the intent element of battery by saying that he should had knowledge to a substantial certainty that a harmful contact would occur even though he didnt intend the harmful contact to the people when the debris or whatever fell on them.  If I aim to shoot an apple of your head but actually hit you, that is battery even though i didnt intend to hit you (because i was substantially certain that i would hit you/harmful contact).
He is also liable for all the damage that occurs even if it was more than would be expected (unintended consequences)

trinity2782

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Re: torts hypo input?
« Reply #5 on: December 15, 2006, 10:47:30 PM »
hey pacific, is there an age for the kid, because i think that could make a world of difference (between a 5 year old shooting and an 11 year old). The brightline test that law123 puts forth is a viable answer, but other jurisdictions will determine if his actions were that of a reasonable child of like age. I am a bit suspect on the battery issue because since we dont know the age we cannot determine if he "knowledge with substantial certainty" that injury would follow. Sure the kid could have intended to hit the balloon, but did he know the repercussions? If this came from your exam and the age was intentionally left out, it is my guess that your professor wanted you to analyze both a young kid and a not so young kid or that's how i would have done it (assuming i would have had enough time, which is like crack during exams, you can never get enough of it).
Emory Law Class of '09

DCrell

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Re: torts hypo input?
« Reply #6 on: December 16, 2006, 03:25:52 AM »
I don't see any negligence here. He intended to shoot the balloon. All the affected people would have battery claims against him. Transfered intent.......

trinity2782

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Re: torts hypo input?
« Reply #7 on: December 16, 2006, 08:19:01 AM »
yes he intentionally shot the balloon, but the question is if he knew with substantial certainty that shooting at the balloon was going to cause injury. Check out Garrat v. Dailey (279 P.2d 1091) - in that case a five year old child moved a chair before a woman tried to sit in it and the supreme court of washington held that to charge the child with battery, the child had to have knowledge with substantial certainty that the woman would try to sit in the chair and would be harmed if he moved it.
Emory Law Class of '09

801law

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Re: torts hypo input?
« Reply #8 on: December 16, 2006, 04:27:04 PM »
Probably liability by one of two standards:

1) Liable because it is a child engaging in an adult activity

2) Strictly liable because shooting a BB gun is an "unreasonabely dangerous activity". (whether or not this one works depends on your prof., it would've worked with mine lol).


wardwilliams

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Re: torts hypo input?
« Reply #9 on: December 16, 2006, 06:24:04 PM »
Probably liability by one of two standards:

1) Liable because it is a child engaging in an adult activity

2) Strictly liable because shooting a BB gun is an "unreasonabely dangerous activity". (whether or not this one works depends on your prof., it would've worked with mine lol).




Regarding whether there is strict liability because shooting a BB gun is an abnormally dangerous activity:  what about one of the most important facots of "inability to eliminate the risk by the exercise of reasonable care"?  Can't the risk of shooting a BB gun easily be minimized with exercising care?  I think you would still need to prove negligence even though that wouldn't be hard to prove; and not just say they are stictly liable.