Talmage v. Smith
FACTS
-D sees Smith and X on D’s shed.
-D throws a stick at Smith or X, and accidentally hits P.
HOLDING
Assuming that D used an unreasonable degree of force, he is liable to P, even though it was not P he
was trying to hit.
RULES
Intent is something constructed. Intent must be borne from the defendant’s actions, not from the defendant’s motivations.
ANALYSIS
Different kind of tort intended: If a defendant intends to commit an assault, and in fact struck the plaintiff, he will be deemed to have had the intent necessary for battery. This rule applies in the “transferred intent” situation as well. Thus if A intends to frighten B by shooting near her, and the bullet accidentally hits C, A has committed a battery upon C.
-Five “trespass writ” torts: (1) battery; (2) assault; (3) false imprisonment; (4) trespass to land; and (5) trespass to chattels. If the defendant intends any one of these and any one of these occurs, he is liable. For example, he is liable when he shoots to freighted A (assault) and the bullet unforeseeably hits a stranger (battery). Transfer only applies to trespass writs. Not always upheld in courts (Popper).
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FACTS
-D sees Smith and X on D’s shed.
-D throws a stick at Smith or X, and accidentally hits P.
HOLDING
Assuming that D used an unreasonable degree of force, he is liable to P, even though it was not P he
was trying to hit.
RULES
Intent is something constructed. Intent must be borne from the defendant’s actions, not from the defendant’s motivations.
ANALYSIS
Different kind of tort intended: If a defendant intends to commit an assault, and in fact struck the plaintiff, he will be deemed to have had the intent necessary for battery. This rule applies in the “transferred intent” situation as well. Thus if A intends to frighten B by shooting near her, and the bullet accidentally hits C, A has committed a battery upon C.
-Five “trespass writ” torts: (1) battery; (2) assault; (3) false imprisonment; (4) trespass to land; and (5) trespass to chattels. If the defendant intends any one of these and any one of these occurs, he is liable. For example, he is liable when he shoots to freighted A (assault) and the bullet unforeseeably hits a stranger (battery). Transfer only applies to trespass writs. Not always upheld in courts (Popper).
---
Interested in learning how to get the top grades in your law school classes? Want to learn how to study smarter than your competition? Interested in transferring to a high ranked school?
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