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Deliberate Harm in Tort Law

Professor Richard Epstein argues that cases that involve deliberate harm need to be assessed according to traditional pleading rules that rely on the concept of defeasibility. This concept allows for consideration of the assumption of risk by the injured party in addition to the bare facts of intentional harm. https://youtube.com/watch?v=Uz2heDlBEu8


The analysis that was given in Brown v. Kendall all assume that the particular injury in question was accidental. Meaning neither the party inflicted the harm wanted to do it, nor the party who was injured wished to accept the risk. How do you think about situations in which there's a deliberate harm? And the best way is to go back to traditional views associated with pleading. And those do not simply divide the world into a claim on the one hand and a defense on the other. What they do is they rely on the notion of defeasibility. Defeasibility is a notion which says there's always a connection between the prima facie case and the ultimate issue. So it's one thing for me to hit you and it's another thing that I've committed trespass against you. If I hit you it means there are opportunities for defenses; if I say it's a trespass it means that we've already concluded that it's a wrong. Now, once you allow that defense, it too should be defeasible and the way in which it turns out to be beaten or overcome is to show that the defendant knew about the dangerous situation in which the plaintiff was located and decided to inflict the harm in question. And so therefore what you can say is we now have a way of putting a strict liability for accidents into harmony with intentional harms. But it's absolutely critical to keep these particular stages involved because we certainly don't want to require that there be proof of intentional harm in these cases where there was no form of assumption of risk whatsoever.

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