Lawfag here,
I have to write a paper about an area of torts that has been left unresolved or could be reformed in the common law. Am from Canada, but England and Wales and US common law could be relevant too.
ITT: What are some unresolved torts issues at common law?
As far as I know, there is no resolution as to whether or not Ultrahazardous activity in the form of keeping a normally dangerous animal trumps over a self defense claim. (U.S. guy here)
Say you have a pet tiger. Ordinarily, if your tiger injures someone, no matter how careful you were or what precautions you took, you'd be liable for any damages that tiger causes. But say you're attacked, and in self defense, you sic your pet tiger on your assailant in a perfectly valid situation where deadly force was justified. Is this a battery/trespass to person case with self defense with an instrument of the tiger, or is it a strict liability ultrahazardous activity case?
>Common Law
Is there legislation that imposes a strict liability? If so then the legislation would trump the common law around self defense.
>muh special rule book
Again, as far as I know, which is somewhat limited to a few jurisdictions and what I remember from law school, since I never got into tort law practice; Ultrahazardous activity as a cause of action is itself a product of common law. Various jurisdictions have made statutory declarations as to what is or isn't under the umbrella of an ultrahazardous activity, but they just list a set of A,B,C,D,E, etc that falls into the listing for strict liability, the actual vehicle of cause of action is and remains pure common law.
Again, I'm not suggesting that keeping a pet tiger isn't ultrahazardous in any jurisdiction, I'm pretty sure it is everywhere you go. I'm saying that while normally the cause of action is selected by the plaintiff, this is a case where it is actually a conscious direction of harm, not the norm for a standard ultrahazardous case, and one that if another instrument would be used would be fully justified.
Fellow lawfags, what year are you in school/practice, and where are you (planning on) practicing?
2L in Florida here. Hoping to be a prosecutor eventually.
Lawfag here, but not OP.
Using a tiger as a self-defense weapon would probably open you up to liability because it would continue to exert deadly force against he assailant even after he was no longer a threat. It's in the nature of a big cat's behavior to finish off an incapacitated target by biting through the throat or snapping the neck. It could be argued that this was essentially equivalent to executing a wounded burglar with a shot to the head after he was disarmed, which would subject you to both criminal and civil liability.
Ultimately, the case would hinge on whether your involvement in the mauling to death of the assailant is treated as one act on your part (setting the tiger against the assailant is roughly equivalent to firing a single deadly shot), in which case you would be alright. If on the other hand, you were interpreted as exercising ongoing control over the tiger during its attack (such that each act by the tiger was imputed to you personally), then you're fucked because the tiger will inevitably go further than you yourself would be justified in going.
1L, Ontario her. Wanting to do commercial real-estate law/municipal law/development law/condominium law
also /n/ here.
To be honest, I hadn't considered it that finely. I was primarily asking on the level of whether or not the claim would be treated as some sort of tresspass to person on the part of the plaintiff, in which self-defense is at least a theoretically valid affirmative defense, or if it would be treated under the strict liability of an ultrahazardous activity. I was more or less assuming that the use of the tiger would be considered a valid act of self defense if it got that far, without delving into an actual fact pattern that would yield that result.
Besides, and I'm sure there is case law on the subject even if I've never bothered to look it up myself, aren't their cases where someone sics a guard or attack dog on an intruder or some other threat? Granted, the amount of harm even the biggest and meanest dog can cause is probably less than a tiger's, but I imagine most of the same issues would apply; there too, it's difficult to get your dog to stop biting the guy once he's neutralized as a threat.
Graduated two years ago and became a federal bureaucrat.
Fuck dealing with whiny clients and juries. I've got a comfy job with 40 hour work weeks and great benefits, while earning barely 10% less than I'd get as an associate at a firm.
>federal bureacrat
Living the dream. Care to give any more details on your line of work?
It's basically a lottery to get a job with the feds. I applied to about 40 job openings that I qualified for before I got hired.
My job is analyzing Social Security disability claims for fraud. It's pretty dull stuff most of the time, but it pays the bills.
Duty to rescue is pretty vague in most states. No duty to rescue in most situations
Congrats man. I'm trying to get my foot in the door with the federal government currently; I'll be doing a 6-month internship with the DOJ. Unpaid, but it qualities for legal pro-bono, which I need to graduate.
Speaking of, what are your (or anyone's) thoughts on mandatory pro-bono work as a graduation requirement? Apparently not all law schools require it, but some state bars are pushing for it.
Talk about good Samaritan laws
This is relevant
>Canadian real estate law
So what's the deal with Canada allowing so much real estate to be bought up by non-citizens? Isn't that the reason for the insane housing prices in your cities?
I mean, I was looking at the situation more in terms of affirmative defenses to liability.
I don't see the inherent ultrahazardous nature of a wild animal being relevant to a fact pattern where you intentionally use that hazard against an assailant, because the whole idea of assigning liability to harms caused by an ultrahazardous thing is based on the idea of the harm being unintentional but nonetheless creating liability. Intentional harms always lead to liability unless an affirmative defense can be asserted.
I feel that mandatory pro-bono is commie bullshit. But in this legal market, your 1L summer internship is likely going to be some sort of pro-bono work anyway, so it's not really going to be a hard requirement to satisfy.
Ontario and British Columbia have passed legislation to curb foreign buyers. Also it's Canadian residents buying condos for investments and never living or renting them, so units sit vacant when there's a huge demand for rental properties in the cities.
The legislation added a vacancy tax or 5% and foreign resident purchaser tax of like 15%, we'll see if that cools the market at all.
thank fuck in Ontario we don't have mandatory probono work. But you can do pro-bono work to get law class credits as part of a legal clinic.
>because the whole idea of assigning liability to harms caused by an ultrahazardous thing is based on the idea of the harm being unintentional but nonetheless creating liability.
I agree that's the theoretical basis for ultrahazardous activity having strict liability as opposed to a test for negligence or recklessness, but as far as I'm aware (which again, could EASILY be wrong as I don't practice in this area and it's been a long time since torts class) it's not actually a requirement for bringing a claim on those grounds.
When i search ultrahazardous activity in Canada there's a sick case of holding the mentally disabled strictly liable holy shit:
With respect to the imposition of strict liability on the mentally disabled, Korrell states at pp. 44-45:
Imposing strict liability on manufacturers of defective products or on participants in ultrahazardous activities comports with the notion of imposing liability only where the defendant has some subjective fault. It is true that there are independent policy arguments in favor of strict liability. These include spreading losses over a broad consumer base and putting the burden of minimizing the risk on the "cheapest (or only) cost avoider." However, these policy arguments alone do not justify the existence of strict liability in our negligence regime, bounded as it is by "ability to comply" side restraints. Strict liability does not violate the fault principle because the actors subject to strict liability choose to act for their own profit in a way that increases the risk of harm to others.
The policy arguments offered for strict liability are inapplicable to the mentally disabled. The mentally disabled defendant did not choose to have his disability for profit. Unlike a person with a physical disability, he cannot, in most cases, even be said to have made a meaningful choice to act with knowledge of the affliction. Also, a mentally disabled defendant is unable to pass the loss on to a large class of consumers. Indeed, the mentally disabled most likely need to preserve their limited resources to use for their own care. The analogy to other strict liability contexts is particularly untenable given that strict liability is not imposed in the analogous cases of torts committed by the physically handicapped, by children, or by children with mental disabilities.
Fiala v. Cechmanek (2001)
This is quite possibly the most entertaining conversation I've witnessed on Veeky Forums in 4 years.
Great job anons. At least there's some of you that are discussing the important things still.
bump
Veeky Forums is a slow board my friend, no need to bump just yet
Here in BC the legislation has helped a little bit, but there's also been a fuckton of very complicated lawsuits involving Chinese millionaires, students, secret arrangements and a lot more bullshit that's come up recently.
Well I'm glad your courts are starting to address the issue
>all these fags who won’t acknowledge the supremacy of the mixed Scots legal system
I unironically don't want any changes to common law tort law because I might have to relearn things
basically this
Can you guys just allow he pipeline already? Even the Indians want the fucking LNG plant and jobs.
Fucking Green terrorists claim "first nations groups" haven't been considered, yet they're the ones who want the fucking jobs and training!
Bump
Name ONE thing wrong with the Bloody Code
Precedents aren't binding
You have a positive duty to rescue
My friend was the defense attorney in a Florida case involving that with a dog and they established that it was legal and the dog didnt have to be put down.
fuck, in Ontario there's legislation banning "pitbull like dogs" because there were a series of attacks about 10 years ago in which kids died and a woman was killed in her own backyard by neighbour dogs. Now pitbulls have to be muzzled in public and tied up in enclosed yards, and the breeding or importation of pitbull puppies for sail is banned.
Our self defense laws in Canada are based on a statutory provision I'll post in the next post. There's a few cases defining self defense around like bar fights and spousal abuse and stuff, but most cases rely on the statute to define self defense. Tell me if you think a dog would fit that statute:
(see next post)
Defence — use or threat of force
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
Marginal note:Factors
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
Marginal note:No defence
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.