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Author Topic: Help with hypo  (Read 708 times)

Trivium

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Help with hypo
« on: October 09, 2008, 04:21:31 PM »
Johnny shoots his slingshot at April, who had just stolen his bike and was riding away with it, the shot misses April and hits Tommy in the eye. Does Tommy have a cause of action for battery?

nealric

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Re: Help with hypo
« Reply #1 on: October 09, 2008, 04:33:58 PM »
If I remember torts correctly, yes.

Johnny does not have the right to use such force against April because he was not defending himself against bodily harm. He will be liable to Tommy via transferred intent.

There was a case, the name of which I cannot remember, where someone was found liable when they threw a stone at a trespasser that hit an innocent bystander who was not trespassing. The stone thrower was found liable. Sounds like basically the same thing- use of force in defense of property.

FWIW: I found Glannon's E&E for torts extremely helpful.
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Trivium

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Re: Help with hypo
« Reply #2 on: October 09, 2008, 05:01:09 PM »
I figured the transferred intent issue, however, he was defending against harm to his property, which according to the restatment you can do. The questions to me are:

1) Was he justified in the action he took to protect his property?
2) If so, is the intent transferred to Tommy tortious?

nealric

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Re: Help with hypo
« Reply #3 on: October 09, 2008, 05:10:03 PM »
Again, I refer to the trespasser case.


My answer to #1 (based on that case) is NO
The answer to #2 is almost certainly yes assuming I am right about the first


Defense of property is one area where I remember the restatement and common law cases differing in some areas.
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Trivium

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Re: Help with hypo
« Reply #4 on: October 09, 2008, 05:18:04 PM »
Ok, I get what you're saying. I hadn't read a case along those lines, so I didn't know that. So, basically, the transferred intent is tortious regardless of if the original intent was not tortious? And that case wasn't decided on the basis of negligence?

edit: I suppose he wouldn't be liable for battery if it was negligence.

mqt

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Re: Help with hypo
« Reply #5 on: October 09, 2008, 05:59:11 PM »
Ok, I get what you're saying. I hadn't read a case along those lines, so I didn't know that. So, basically, the transferred intent is tortious regardless of if the original intent was not tortious? And that case wasn't decided on the basis of negligence?

edit: I suppose he wouldn't be liable for battery if it was negligence.

Not quite.  I'd probably address it something like this (and remember, you want to discuss all arguments for/against liability for max points). Transferred intent hinges on whether there was an attempted intentional tort on someone else.  So you'd start there.  Was there a battery on april..go through analysis:  No, b/c no offensive contact.  Was there an attempt?  Yes (go through analysis).  But, the harm befell Tommy, and by doctrine of transferred intent, johnny's liable to Tommy as he'd have been liable to April had he hit her (his intent to hit April transferred to tommy)...***UNLESS there is an adequate defense to battery...then you'd analyze whether force used in defense of property was justified. 

And, going through the analysis like that covers most of the alternatives out there, thus racking up points.  (describing If x, then this outcome, but if y, then different outcome...e.g.: "even though facts satisfy elements of battery through transferred intent, if reasonable use of force under the circumstances for defense of property, not liable.  If not reasonable, liable."  Then weigh the alternatives and make a conclusion based on what outcome is most likely).  Short answer is that Tommy would likely have cause of action for battery, but Johnny potentially has a defense...whether that defense is satisfied determines whether he'll be liable

Kevin.

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Re: Help with hypo
« Reply #6 on: October 09, 2008, 06:20:47 PM »
Defense of property is one area where I remember the restatement and common law cases differing in some areas.

That is true, depending on the cases you've got for defense of property.  Make sure you know what your precedent is on that issue, and see if it's a legitimate defense for Johnny.  If it's not, then you've got transferred intent constituting battery.
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