Just finished a draft of my manuscript. The right to defy criminal demands Article (6 years in development), I thought it would be a good idea to serialize it. Since there is still time to make changes, I would love to get your feedback and suggestions. Here you can find previous posts and any new posts.
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Let’s go back to the Introduction. Now let’s get to Danielle. Craig wants Danielle to make a decision by threatening criminal attack. Danielle is like us all, and has an “ordinarily enforceable duty to exercise reasonable diligence.” [her]Conduct can lead to physical injury. This includes the duty to not unreasonably raise the chance of criminal attack. “The conduct or conduct of a defendant may lack reasonable care insofar that it is foreseeably combined with or permits improper conduct by the plaintiff or another party.” Danielle might be sued for negligence, for example, if her customer is attacked criminally by Danielle’s employee, or she gives a weapon that could be used to harm another person.
Now, Danielle knows Craig will likely attack her violently if Danielle does not. X If he/she is publicly seen together with a new love, keeps performing abortions, sells blasphemous mags, etc., or does not do it, Y Hand over Craig’s property. Imagine that Paul, a bystander, is injured during such an attack. This is the Paul v. Danielle The lawsuit could be seen to raise a question before the jury as to Danielle’s liability.
- Danielle’s behavior created the risk of bodily harm. Although the behavior was not necessarily dangerous, Craig’s threat made it dangerous. Even if Danielle was to be blamed It is not Acting, as in not giving property over to a criminal, may be an example of when she had to exercise caution to avoid physical injury to her customers.
- If Craig makes such threats or has been involved in similar attacks in the past it is obvious that this risk could be anticipated. Danielle is also familiar with Craig’s behavior and is likely to become angry at her (e.g. an estranged husband she is violently jealous of).
- Paul’s injuries could have been caused by Danielle’s behavior. Craig demanded that Danielle comply with his demands. It’s likely, however, that Paul wouldn’t be hurt if she had.
- The jury should decide whether Danielle was acting reasonably. X Or not to do YShe must balance the cost of her complying with demands with the benefits for Paul that will result from avoiding Craig’s brutal attack.
These concrete examples are presented below.
[1.] Touchette v. Ganal
Mabel Ganal began an affair and later divorced Orlando Ganal. She moved in with her parents. Orlando entered the home of the parents and murdered them, injuring Mabel as well as their son. Then he drove to the Touchette house, set fire to it, and killed four Touchette family members. (David Touchette wasn’t present. Orlando lit a fire in the home of his ex-employer, although no one was seriously hurt.[1]
Wendy Touchette, Touchette’s older sister, sued her on behalf the family that had been murdered. Mabel was sued by her sister Wendy Touchette, alleging that Mabel had negligently provoked Orlando. The Hawaii Supreme Court accepted that this case should proceed.
Mabel had to abstain [her own]Unreasonable risk to others through conduct [Orlando] Ganal’s conduct…. [A]Mabel is the subject of the complaint by the plaintiff against Mabel. It alleges that Mabel engaged in affirmative conduct in relation to the “defendant Mabel Ganal.” She initiated and maintained a conduct pattern that included humiliating Orlando T. Ganal Jr., by taunting him and showing her extra marital love for David Touchette” (emphasis added), … [which] “… caused defendant Orlando T. Ganal, Sr. to suffer severe and extreme emotional and mental distress and depression,” thereby implicating the duty [to exercise reasonable care when one’s conduct creates a risk of harm to others] ….
In addition to “flaffing” the affair, Mabel also said that Touchette was a much better friend than she had ever been. The court pointed out that Mabel was not being held responsible for failing to stop her husband from committing the crime but rather for her affirmative actions in initiating it. Mabel’s homeowner’s insurance settled the case for six figures. The case ended up in a Florida trial court. TouchetteIn similar facts. This is in line with the modern tort law logic, which was discussed above.[2]
You can be certain of this: Touchette The pattern that I have discussed in the Introduction doesn’t exactly fit my expectations. That is why my Touchette(Based hypothetical alters some elements): Orlando did not expressly request that Mabel stop taunting him. However, I find the situation to be quite similar. Mabel probably knew her jealous husband didn’t want her to tell him all about their new relationship or his inadequacies. Und die Und… Touchette The decision states that Mabel and others have the duty, as part of their obligation to prevent unreasonable harm from being caused to others, to refrain from engaging in any behavior that is not consistent with unstated demands that are backed up by violence.[3]
Consider the following: TouchetteAn example of a demand, such as that in the Introduction, would make it even easier to enforce a duty. If the demand was not met, it would make third-party harm even more obvious.
This decision did not make Mabel liable. It simply left it up to the jury to decide the case. Nonetheless, such denials of motions to dismiss will often lead to the case settling because of the risk of liability (and the expense of litigation)—that is what happened in Touchette. These messages send a clear message to duty. Sometimes, the duty to exercise reasonable care might also include the duty to follow criminals’ orders. It’s up each juror to decide what is reasonable in light of particular facts.
[2.] Hurn v. Greenway
Carrie Randall Evans married Jeffrey Evans. However, her marriage was not going smoothly. Jeffrey threatened and insulted her often, so she moved in with a friend to get away from him. Simone Greenway was her friend and she became closer to him.
Greenway was visiting Carrie later on, along with Jeffrey, whom Carrie has remained in touch, and Bill Anthony, who was Greenway’s friend, were also there.
… Carrie and Greenway sat at one end of the couch and held hands; Carrie appeared afraid but did not discuss why. Greenway claimed that Carrie had sat beside her “like it was she desired”. [Greenway]To protect her.” Jeffrey asked Carrie Greenway “To protect her.”[W]”What would you girls do if someone came into that door now? After you?” Carrie Greenway and Carrie gave each other high fives and stated, “[W]E’d like to kick his arse.”
Carrie and Greenway began … dancing. Carrie and Greenway kissed and touched one another while dancing. Greenway admitted that the couple were laughing, joking and having fun. [Jeffrey]She said that Jeffrey was being teased “on purpose” and was trying to punish him for being jealous. Greenway said that while she was laughing at Jeffrey she was attempting to express to Carrie the nonverbal message that “you don’t have to be afraid…. [T]His domain is yours, and you do not have to fear here. Jeffrey was teasing and showed no emotion. No emotion, nothing. He was cold.
Jeffrey was shot shortly afterward (who survived), and Anthony and Carrie were also killed.
David Hurn was the father of Carrie Randall-Evans’ two children. He sued Jeffrey’s estate, which was settled at $800,000. However, he couldn’t pay it, and Greenway. Greenway’s claim was that Greenway had made inappropriate sexual advances against Carrie Randall Evans while Jeffrey Evans was at home.
Greenway was clearly doing something dangerous, as Carrie knew Jeffrey had previously threatened Carrie, and Carrie was terrified of him. Greenway has a legal obligation to act reasonable in posing danger to others. Jeffrey, however, would not likely have attacked Carrie if she hadn’t taken her precautions. According to the reasoning TouchetteIt is likely that there would be a jury inquiry as to whether Greenway was unreasonable.
The Alaska Supreme Court reaffirmed the Hawaii Supreme Court’s view. It first concluded that Jeffrey’s violence wasn’t foreseeable, even though Greenway had previously threatened Carrie with bodily harm; Carrie was scared that Jeffrey would murder her; Jeffrey is a jealous man. On the night of Jeffrey’s death, Jeffrey displayed a “stone cold expression” that betrayed no emotions. Greenway had also made a threat to Greenway: “What would you do if somebody came into that door now and after you?” The court ruled that it was not possible to know that homicide would result from mere teasing. Greenway couldn’t foresee this violence.
However, the court went on, possibly because of the fact that foreseeability is often a question for juries; it instead held Simone’s obligation to be restricted, as a matter law.
Hurn wants us to decrease domestic violence in the state, and impose a responsibility to “refrain” from bullying anyone known to have potential for violence. But we refuse to give victims the duty to prevent their own abuse and then hold them liable when they fail….
And if Greenway is liable for taunting an abusive husband, it follows that victims themselves may be liable for provoking their partners if the result is harm to a third party…. . [Such liability is]It is especially troubling when, like here, the “provocation” is an act to resist. [Footnote: The sparring, dancing, and teasing at issue were a direct response to Jeffrey’s not-so-veiled threat to Carrie and Greenway’s physical safety …. While they were sparring and dancing and laughing at Jeffrey, Greenway was expressing to Carrie: “[T]”This is my territory, and you do not have to fear here.” We reject the idea that victims are responsible for the violence they endure in the home, and we will not blame them for their otherwise reasonable actions simply because those actions foreseeably result in violence….[4]
This logic seems correct to me, and it can be adapted in negligence law in two ways.
First of all, it is possible to say Greenway was reasonable in law. Maybe nonviolent resistance to abuse is not unreasonable because it would avoid the heavy dignitary cost of having to do so. [5]
A second conclusion could be that the duty to exercise reasonable care should not be limited. [your]Conduct creates the risk of bodily harm,” to paraphrase Restatement (Third), of Torts.
A court can decide in exceptional circumstances that a countervailing policy or principle warrants denial or limitation of liability in particular cases.
Perhaps this is one of those exceptional cases, a right to defy criminals—a right not to have adjust one’s behavior to obey a criminal’s implicit demands—making up this “countervailing principle or policy.”
[3.] Rojas v. Diaz
Patricia Diaz fled her abusive husband David Alvarez. He had “physically and emotionally abused Patricia” and threatened her with her death. Patricia Diaz was allowed to remain with Celia Diaz her aunt. Celia Diaz said Patricia and Patricia could stay for only three days, as Alvarez threatened Patricia. David Alvarez arrived at the house the third morning and murdered four people (but not Patricia nor Veronica, who had already left). Manuel Rojas was one of those killed. He had been gardening earlier in the day for Celia and returned for water.
Rojas’s relatives sued Celia, claiming that Celia failed to properly warn Rojas of Alvarez’s danger (so perhaps Rojas could have missed mowng the lawn when Veronica was around and Alvarez’s threat was greatest). Because Alvarez’s attack wasn’t sufficiently foreseen, the Court of Appeal ruled that there was no claim.
Patricia told Diaz that Alvarez threatened her brother’s lives. Diaz thought Alvarez could come after Patricia at Diaz; Diaz kept Patricia away from Diaz’s home for three days. Diaz knew about Alvarez’s violent tendencies, and had even threatened to kill Patricia. Although these facts seem to indicate Patricia was under threat of physical abuse by Alvarez’s hands, they don’t logically link to the September 29, 1996 event in which Alvarez and a female companion arrived at Diaz shackling, stabbing, shooting the residents of Diaz.
It could also have been a reflection of the California “third-party criminal act” rule. [should be analyzed]Differently from normal negligence and require that we apply a higher sense of foreseeability to hold defendants liable for criminal acts committed by third parties
Similar situations can arise when an attacker is actually foreseeable even under higher standards, and when negligence isn’t simply a failure of warning but the decision not to protect a victim from stalking. For example, let’s say that
- Alvarez tried to murder Patricia once before, so a second attempt at killing was not impossible.
- Celia had made the decision to allow Patricia to remain indefinitely.
- Alvarez arrived at Celia’s house and shot Patricia. He also injured Celia’s neighbor or tenant.
- Celia was sued on behalf of the plaintiff, who claimed that Patricia staying at Patricia’s house had unreasonably increased risk for tenants and neighbours.
This would be a direct problem that this Article addresses.
[1]I refer to parties generally by their last names, except for when they share a lastname. In that case, I use the first name to prevent any confusion.
[2]The court rejected Mabel’s view that she had a duty of control over Orlando, her husband. Touchette, 922 P.2d at 355 Mabel was found to have engaged in conduct that could create an unreasonable danger of harm through Ganal’s conduct. This is the basis for its reasoning. id.By allegedly humiliating and ridiculing her by “flagging her extra marital affair with David Touchette”, [Orlando]With respect to this affair.” id.At 358.
[3]It would be the same for situations involving third-party property damage (e.g. vandalism or arson) that was factually caused a defendant’s provocation of plaintiff. However, negligently causing damage is still actionable under negligence tort.
[4]It was the court that mentioned Touchette briefly, and distinguished it on the grounds that “the allegations in that case”—”that the wife taunted and humiliated the husband and caused him ‘to suffer severe and extreme emotional and mental distress and depression’—”were more severe than the uncontested facts in this one.” It seems to me, however that logic is not incompatible with the logic of HurnThe opposite would be justifiable. Touchette You can even get on Touchette‘s facts.
[5] For another example of resistance, though one that has fortunately not led to a murder, see Letitia Stein & Colleen Jenkins, Mohammad Cartoonist Declares the U.S. Police’s Killing Of Two Gunmen Justice’, Reuters, May 4, 2015 (“For the cartoonist whose portrait of Mohammad won a Texas contest, the police killing of two gunmen outside the meeting place was justice…. [Bosch]Fawstin’s winner entry shows a Prophet wearing a turban and wielding a sword, shouting: ‘You cannot draw me. A cartoon bubble depicts Fawstin holding a pencil in his hand and responding, “That’s why you draw me.”‘”); cf.John F. Trent Bosch Fawstin, a cartoonist and graphic novelist, is facing numerous death threats after drawing Muhammed, Bounding Into Comics, Sept. 10, 2018, https://boundingintocomics.com/2018/09/10/cartoonist-and-graphic-novelist-bosch-fawstin-faces-numerous-death-threats-after-drawing-muhammed/; 2005 Will Eisner Comic Industry Awards, http://www.hahnlibrary.net/comics/awards/eisner05.php (noting that Fawstin’s earlier work had been nominated for a prominent award). Fawstin may be defiant because he is an “ex-Muslim atheist”. Robert L. Jones, Bosch Fawstin: Infidel Activist, Atlas Society, Mar. 1, 2018, https://www.atlassociety.org/post/bosch-fawstin-infidel-artist. Cf. Bosch Fawstin, the cartoonist who draws Prophet Muhammad (Peace be upon Him), Change.org, https://www.change.org/p/kevin-systrom-stop-the-cartoonist-bosch-fawstin-who-draws-prophet-muhammad-peace-be-upon-him (petition with almost 50,000 signatures demanding that Instagram remove Fawstin’s account).