Beruflich Dokumente
Kultur Dokumente
Intent
o Intend the injury (or worse, intend the injury and maliciously)
Polmatier v. Russ (Delusional thinks hes attacking the Duke of Wellington): You dont have to
have a sound understanding of the risks, you just need to intend the harm.
o Intend the contact
White v. University of Idaho (Piano teacher touching the back): You dont need to intent the
harm, just the inappropriate (impermissible) contact.
Voserny v. Puttney (Boys kicks other in knee during class): You just have to intend the
inappropriate contact.
o Substantial certainty
Garrett v. Dailey (Boy pulling out chair from old woman): You just have to know that harm
will be caused by your actions. What the offensiveness expresses.
Harmful and/or Offensive
o Harmful
Easily to establish, physical, or mental harm is caused to an individual.
o Offensive: Reasonably offensive to personal dignity.
Fisher v. Carrousel (Black man yelled at in lunch club, plate snatched): It is the behavior that is
offensive, combined with the contact.
Brzoska (Dentist with HIV): Even if a reasonable person would find it offensive, it needs to be
a rational offense. POLICY.
Mink v. University of Chicago: It is offensive to experiment on someone without their consent.
Consent
o Consent is measured by an objective standard: what any reasonable person would consent to. Consent
is judged by outward manifestations, since we cannot know someones thoughts.
OBrien v. Cunard Steamship (woman holding out arm to be vaccinated): It is someones
outward manifestations that determine consent.
o Consent is judged by the social norms, or conventional meanings we ascribe to actions.
Woman tells man that her husband wont be home: That normally is an invitation for sex.
Elkington v. Faust (man sexually abused his adopted daughter, but she consented): You cant
consent to certain things at a young age, and there is something strikingly harmful about the
long-lasting damage he has caused.
o Consent is contemporaneous
State v. Williams (part of sorority ritual until it was her turn and she said no): Consent is
removed the moment you say stop.
o Markley v. Whitman (boy rushed by classmates): You have to give consent to be part of
the activity. Also, the setting, and what is acceptable for the setting.
Consent in activities
o Hackbart v. Cleveland Browns (football player injured by retaliatory hit): You consent
to what falls in line with the objective and goals of the game, what is better for the
activity.
o Boxer died from being punched in the heart.
Consent to illegal acts (More than law is important, oral sex, sitting on a bench)
o Majority view: Your consent to the illegal act does not remove your right to sue for tort
liability.
o Minority view: Your consent removes your right to sue for a tort claim.
Informed Consent
o Kathleen v. Robert (lied about having an STD so she slept with him): the consent is
wrongly procured, and he intentionally misled her=battery.
Self Defense
Types of Defenses:
Defense or privilege: Plaintiffs allegations are true, but I have a defense or privilege.
Prima Facia: Plaintiffs allegations are not true.
Subjective
Particularize: Take into account their
differences (psychological, physical).
First Person Point of View: What the person
sees.
Good Faith: Mental state, I sincerely believed
that I needed to kill him to save myself.
Objective
Standardize: take a standardize normal person,
and what they would be justified in doing.
Third Person Point of View: What an impartial
observer sees.
Reasonable/Correct: From the point of view of
other reasonable people.
You can only use fatal force in your own home, or where you cant retreat.
Fraguglia: Only force sufficient to repel the attack.
Chapman: the use of force needs to be against the one who created reasonable apprehension.
Nelson: we particularize by taking into account the psychological and physical characteristics, but more so
physical, it is easier to observe.
Dupre (hotel guest beats up bell boy): there is more leniency for the attacked, it is hard to judge how much
power you are using, you have to intend the injury.
Circumstance
Subjective:
o Leidholm (battered woman who killed her sleeping husband): Take all the events and circumstances of
her history with husband into account.
Objective:
o Hattori (Japanese exchange student): Though they were scared, it wasnt reasonable. You cant exhibit
your paranoia onto strangers.
Rights:
o People v. Young (tries to stop white men (cops) from beating up a black boy): You only get the same
rights of the person you are attempting to defend.
o An employer can intervene for his employee-special relationship.
o State v. Young (Killing your wifes lover is only justifiable if you catch them in the act): Sometimes
there are competing interests.
Retrieval
o Kirby v. Foster (took $50 he thought he was shorted and quit)
o Pure seizure of property, dont need to go to court, can immediately take it back.
o Colorable claim of right- goes to court.
o Fraud- You can exercise force against.
Mechanical Devices
o Katko (spring gun outside of barn: You cannot do indirectly what you cannot do directly sufficient
force.)
So you can never use fatal force indirectly.
English Common Law: You can put spring guns on a wall if you post in the village.
Assault
Rule: Actor is subject to liability for assault if
a) Act is intending to cause harmful or offensive contact or apprehensive or such
b) The other is made apprehensive
Assault presentno battery.
Battery presentno assault.
Assault: We have a right to live in society without being put in fear of personal harm.
Beach (threatened by unloaded gun): Mental apprehension is an aspect of assault, even if there is no actual
fear.
Read (landlord sends men who rule up their sleeves): The threat needs to be imminent, but you dont need to
sit around and wait.
Manning (heckled pitcher): A miscarried assault that harms someone is a battery.
Reasonable
Cullison (doesnt take gun out of holster): A reasonable person would think that was enough for imminent
harm.
Ingraw (one time stalking, black man, white woman): He was too far away to cause actual fear.
Apprehension
State v. Barry (didnt see loaded gun pointed at him): Assault needs knowledge for apprehension.
Wilson v. Bellamy (Raped with unconscious): They sexually assault her, they committed battery, but there is
no assault, because there was no contemporaneous apprehension.
Trogden: inducing someone to give up a legal right, or commit an act that he otherwise would not commit, by
making him apprehensive of imminent bodily harm is an assault.
Trespass
Elements:
Act:
o Smith v. Stone: If you are carried without consent and trespass, you cannot actually trespass.
o Gilbert v. Stone: Coercive trespass is still trespass. There is still a voluntary action if someone puts a
gun to your head and asks you to do it.
Entry:
Intent: The entry must be intentional, but the intent to harm is not needed (SL).
o Southern Counties v. RKO (Wrong location, cigarette fire): You dont need to intend the harm, just the
entry, even if its a mistake.
o Longnecker (De-bagworming trees):
o Scribner v. Summers (waste onto neighbors property): Your action that causes something else to
invade others property is trespass (immediate).
o Case of Thorns (trimming hedges fall): Not a trespass because there wasnt a substantial certainty, just
a risk.
Wrong: Tort against persons property.
o Cleveland Park v. Perry (Tennis ball, swimming pool drain): The wrong is exceeding the scope of
authorization.
Privilege
Unconditional: Can enter, dont have to pay.
Conditional: Can enter, have to pay.
Public Necessity: the whole public is threatened, and they cannot receive damages.
1. Harrison (destroy all liquor): To preserve property against more damage. But there needs to be
substantial certainty.
2. Surocco v. Geary (stopped fire by destroying homes): They are not made worse off, but the public
benefits.
Public Taking: It isnt fair for one person to pay the burden of everyones benefit.
1. Needs to be justified, has to make the public better off.
2. Even if you are justified, you have to pay compensation.
o Wegner (Police cause damage trying to capture suspect): One person shouldnt have to pay the burden
of everyones benefit (are made worse off).
o Monongahela Navigation v. US (take property for bridge): You can take for public good, but you need
to reimburse.
Private Necessity: Have a privilege to be there, but have to pay damages.
o Ploof (docking at a private island): In an emergency, to avoid greater damage, you have a privilege to
dock at the island.
o Vincent (keeping boat at dock during storm): Not a trespass. You get the benefit of staying, so you
cant shift the burden of the damage you cause onto others.
Negligence
Shift to 2s.
Unavoidable Accident
1. Couldnt have been avoided.
2. Shouldnt have been avoided.
Excuse and Justification
1. I didnt do what I should have, but Im not responsible.
2. I did the right thing.
Weaver v. Ward (shoots another in the duty of the king): Before, he couldnt avoid it, he was required, now, he
shouldnt have avoided it.
Kendall v. Brown (Transition, hurts another while separating dogs) The standard governing is conduct is due
care (not extraordinary care).
o Negligence analysis: This is what you should have done differently.
Butterfield: If the plaintiff is contributory negligent, plaintiff will lose.
Nitro-Glycerin Case (Wells Fargo, opened up with hammer, explosion): Not negligent if you cant be
expected to understand the risks.
o Formulation of the standard of reasonable care: the measure of care against accident is the one that
a reasonable person would use if they were the person, and consider that persons interests.
Contest between SL and FL: FL is fair for reciprocal risks, but SL is fair for non-reciprocal risks.
Strict Liability
o Rylands v. Fletcher (reservoir broke and damaged mines): You are getting the benefit, and they
shouldnt have to bear the burden.
o Strict Liability for escaping things: Do what you want on your own property, but when it escapes,
you are liable.
Unless you are using the land for what it is naturally suited for.
Fault Liability
o Losee v. Buchanan (boiler explodes): Everyone benefits from living in an industrial society, and you
can do the same thing on your property. No fault.
Negligence
Elements to Negligence:
Duty
Breach
Cause in Facts: Injury caused
Proximal Cause: Injury caused as a result of breach
Duty:
Determining Duty
o Stagl (Delta old womans hip):
Unreasonable as a Matter of Law: The burden of preventing would exceed the benefits of doing so.
o Clinton (uninsulated power line): It would be unreasonable for every power line to be insulated.
o Grace (graphic corrosion on pipeline): It would be unreasonable to dig up and check.
o Kimbar (light in camp woods): The precaution is unreasonable, it would take away the social good of
camp.
Posners Flowerpot: If a flowerpot is going to fall on someones head, you have no duty to help them. But if
you had a duty, breach is easy to show.
o No duty to act: their action did not increase anyones foreseeable risk of harm.
o Kitty Genovese, Good Samaritan
o If you have a duty, easy to show breach.
HF: precaution of yelling is low cost and high value.
ARP: freeze when they see this.
Freedom of Contract (wanted to protect K)
o Hurley v. Eddingfield (Dr. wouldnt help an ill man for no reason): He owes no duty to help. Freedom
of contract, he can treat who he wants to treat. He didnt agree to treat them, so there is no duty.
o Losee (Steam boiler explodes, suing boiler co): They only owe a duty to those they are in contract
with.
Szabo: Imposes a duty between those that have contractual relations and to which they have
not contractually agreed.
Freedom of Property
o Buch v. Armory (Boy/trespasser loses hand at mill): No duty (legal responsibility) of care become that
would impair the free use of property.
o Union Pacific Rwy v. Cappier (Ran over trespassing man and died): No duty to act because he was
trespassing. There was never a negligent act because he trespassed. No carelessness because he was
trespassing.
o Have a duty to act (rescue someone in peril) that they were not legally responsible for creating because
they have brought that responsibility upon themselves.
Increase of peril to plaintiff
Misleading the plaintiff into thinking the peril had passed
Posting a lookout at railroad encourages the plaintiff to count on that lookout.
Depriving the plaintiff of other help
Undertaking and then abandoning a rescue at sea deprives the ship of other help
Admitting a sick patient, then refusing to treat.
Foslom: Not negligent, didnt go any of these three things.
Variable Duty
Breach
The Hand Formula
B < P (L)
B=Burden of precaution
P= Probability of harm
L= Magnitude of harm
Breach
Hand Formula
Physical
o Permanent
Smith v. Sneller (blind man sidewalk).
You depart from the regular standard, to a standard for disability.
Hold accountable to the disabled standard.
Children: Compare to a child of the same age and intelligence.
But not when participating in an adult activity (driving), not fair.
Case
o Sudden: You are not liable unless you should have reasonably foreseen.
Foot cramp is sudden and unforeseen.
Mental
o Traditional Rule:
Wright v. Tate (Low IQ in alcohol car accident): Held to the standard of normal intelligence.
Jolley v. Powell: Dont take insanity into account. Policy: guardians will guard them.
o Modern Trends
Knowledge
Breunig (delusion while driving): You cant know that youre having a delusion, then
its not a delusion. But its not fair for us to live like this.
Theisen (falling asleep in the car): Contrast to Breunig, you know youre falling asleep,
so you are responsible.
Subjective Standard
CTW (pedophile): Using a subjective standard on the pedophile, you should have
known that you control your urges, so stay away.
Berbarian (Alzheimers nurse): Apply a flexible capacity-based standard because of
his illness. She has a heightened duty of care.
Reasonable risk is determined by how valuable the end is, and how likely you are to succeed.
o Eckert v. LLRR (saves girl from train, dies): Value of exposing himself to risk is very high, so he was
justified (didnt recover though).
o Carlsbad (Boys in front of trains): The value of their thrills isnt high.
Brotherhood: Value the cost v. benefit. High cost of loss, high cost of precaution. Reasonable care = Efficient
care.
o Doesnt always work. Hard to value life. Davis, Snyder.
How do you value life? It used to be your capitol asset.
Shilling: We make judgments each day about the value of our lives.
Custom
Traditional rule: Custom is due care itself. Whats reasonable is what people do. You should do what people
normally do.
Modern Rule: Custom is evidence of care, but not due care itself. Needs to be reasonable care. It is a floor, not
a ceiling.
o The TJ Hooper (tugboats, radios): The custom of an industry may not be sufficient for due care.
In malpractice, you have to present expert testimony to show that they did not adhere to the standard of care.
Customary care is due care.
o Stepakoff v. Kantar: What an average or normal psychiatrist would do, is a psychiatrists duty of care.
Who is a professional?
o Esoteric knowledge
o Ethical obligation
o Individual obligation (learning curve)
Rossell v. Volkswagon (Crash, battery on passenger side dripped on little girl): Need to have a
duty to the clients.
Blood banks are given an expert label, obligation to whole country.
Riggins v. Mauriello: Departure from standard, good faith if there are two suitable options.
How to attack professionals
o Attack the standard
o Then say that they applied the wrong standard
Helling v. Carey (Glaucoma test under 40): Profession custom is wrong, use HF, test is cheap
and effective.
Relevant Community
Strict locality: Same community. Hard for plaintiff to find an expert. In-group membership.
Modified locality: Same or similar community: There is a different level of expertise for different places.
o Snyder v. AABB: Stanford used very sophisticated tests, but NJ doesnt have that same capacity.
National Rule: Standard of competence of medical expertise. Minimum standards of competency.
o Vegara v. Doan (Bad delivery of a child): Physician must exercise that degree of skill, care, and
proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to
which he belongs, under similar circumstances.
Conclusive
o Negligence per se. The violation of the statute in itself is negligent.
o You need an emergency doctrine.
Tedla v. Ellman: (Walking with traffic, deaf) Under conclusive you need an exception (they
blew it) for when it is safer to depart from the statute.
Walker v. Missouri (Train blocking intersections during brake failure): Rule: Avoid the greater
harm.
Presumptive as prima facie
o We presume the failure to follow the statute is negligence, but you can rebut it. You just need
compelling evidence to show why you didnt do it.
o Burden of proof that they need to overcome.
Evidentiary
o (Seen in children cases): When children are involved, we treat the statute as evidence.
Problems with Per Se (Abstraction)
o Mussivand (Person with STD take precautions): But not negligence per se: Abstraction renders the
statute useless as negligence per se because they are not getting beyond the minimum imposed by
common law.
Excuse v. Justification
Glue sniffing statutes: If the child who buys glue is always contr neg, we need to get protect children with
statutes.
Lead paint statutes: To protect small children.
o Whether you recognize the excuse that they didnt know they needed to comply.
o Lawyers give legal advice not to know.
o Bank that may just let the property be abandoned.
What should a reasonable person know?
Choice between fault & SL: Fault is norm, SL is the exception.
Evidence
Defenses
Contributory Negligence
Comparative Negligence
Blazovic v. Andrich (bar fight, throwing stones at signs): Authorizes the comparison of negligent-intentional
since substantial certainty is on the same continuum as highly unreasonable risk of harm.
Siragusa (door hook hit plaintiffs back): Rejects classic assumption of risk
o Employer didnt have to provide a safe workplace
o Employee had to bear employment related risks when they are sufficiently obvious
o Inefficient to externalize accident costs
Firefighters rule: Survives from classic
o Moody (Alaska adopts firefighters rule): Waive right to sue, assume risks of negligence that occasions
your presence on property.
Multiple Causation
Johnson v. Chapman (adjoining buildings, walls collapse): Each defs breach is necessary, and their existence
in combination with another is a necessary cause of harm.
o Indivisible injury is key to multiple causation: neither is the but for injury, both are necessary for the
harm.
o Substantial Factor Test
Slater (Oil Wells Discharge): 1/15th of the harm is not substantial.
OBrien (Asbestos, NY statute): Divide damages 7 ways.
Alternate
Summers v. Tice (Two shoot one man): Both are equally negligent, both liable, one can
exculpate, is cause not as important?
All defendants are liable only for total harm, but each is liable for all the harm
o Shifts insolvability/inavailability risk to defendant
There must be indivisible injury
o Right of contribution: Can sue other defendants for their portion of liability
o Indemnity: Shift of financial liability to another (employee, insurance)
o Outcome
Crotta (dropped baby on concrete): Parents cant be liable to children in torts so HD is soley
liable.
Indivisibility is sometimes a matter of law.
Comparing Negligent and Intentional Wrongdoing
o Reichert (Bar fight, killed, owner didnt call)
Compare them using comparative negligence. Divide responsibility, but as one goes up, the
other goes down, undermines responsibility.
o Veazy More common and traditional rule. (landlord, woman raped)
Rank them using J&S, often falls on negligent instead of intentional
Comparing Negligence and Strict Liability
Joint & Several
o Declined to follow
Superseding Negligence: When do the actions of a subsequent tortfeasor cut off liability or the original
tortfeasor?
o Scott v. Shepherd (Squib, market, toss around): Not liable for tossing around because it was an
involuntary action.
o Original Negligence and Subsequent Intentional Wrong
Hines (Hobo Hollow, drop off, rape): The intentional second tort is one of those things that
makes the original tort negligent (Sheridan).
Liberty (Insurance policy to aunt who doesnt have insurable interest in baby): Negligent to
offer policy because it could incentive someone to kill the baby.
Dierker (concrete from work, dropped on car): This doesnt incentive the crime that was
committed.
o McLaughlin (Fireman, nurse, heating blocks): Old majority rule compared to Sheridan. When the
subsequent tortfeasor has actual knowledge is grossly negligent, it blocks the negligence of the
original tortfeasor.
o Godesky (Utah, roof, uninsulated wire): Rejects superseding cause and moves to comparative
negligence.
Dramshop Liability
o Largo (13 beers at bar): Bar is liable, didnt stop serving. Bar is structurally and systemic negligent,
more capacity to pay insurance. Incentivizes good behavior.
General Rule: No recovery for pure economic loss because the loss would be disproportionate to the action,
and too much litigation. No urgency.
o But you can recover for harm accompanied with physical harm.
o Barber Lines (Cant go to harbor, have to go somewhere else): You cant recover for just economic
harm.
Exceptions
Nine: Business Torts (preexisting relationship)
Union Oil (oil spill, fisherman lose all business): Economic loss that plaintiff suffers is
disproportionate to what others suffer, lose all business.
One Meridan (fire shut down shopkeepers): Everyones right is interfered with, but
some people suffer disproportionately.
Pure Emotional Distress
o Old rule: If you feared for your physical safety, then you can recover for your emotional distress.
Pricked with a needle, might have AIDS. There is contact, but you recover from the fear.
o Dillon (Mother out of ZoD, watched, sister in ZoD):
Standard: If it is reasonably foreseeable that she would be a plaintiff and would suffer
emotional harm.
o Thing (Mother didnt see the accident):
Three part rule:
Closely related to the injury
Present at the scene of the injury, and is aware that injury is being caused
As a result, suffers serious emotional distress- beyond what would be anticipated in a
disinterested witness would suffer.
Pre-existing relationship: may allow for pure emotional harm
Benefit
o Employers stand to benefit?
o Bushey (drunk sailor, floods the drydock): Benefit to coastguard for him to blow
off steam so they are liable.
Policy: There are some risks that are foreseeable, but you shouldnt
reduce the risks. But because they are for someones benefit, they should
be liable.
Characteristic risks: increased risk, dont want to prevent, should be
responsible.
Mary M. (DUI, take home and rape): He as the authority to take
her home. Influence is part of his job.
Lisa M. (sexual assault by ultra sound tech): In a vulnerable
position, but he doesnt have coercive authority over her.
Lane (Mongoose devices): just randomly related to the
employment.
Strict Liability
Calabresi
o Distinguishing SL from negligence when thinking about preventing harm.
o Negligence: two questions
Who is the party who might have prevented this accident (duty of care)?
o SL
Who is the party in the best position to prevent this kind of harm?
Greatest capacity to control the risk.
Strict liability is about Zones of Responsibility: you are accountable for things that happen in that zone
regardless of care and conduct.
o Leftover from Rylands
Liability for escaping things
Ambivalent, narrowly construed, broadly construed.
o Shipley (ice and snow fall onto lady): You can do what you want with snow on your property, but once
it leaves, you are liable.
o Marshall v. Ranne (Hog bit hand on property): Strictly liable for harms caused by wild animals and
vicious domesticated animals. But only for the propensities that make them wild or vicious.
Form of characteristic risk
Does not extend to trespassers.
Defenses to SL
o Restatement 2nd
o Knowing Contributory: It was noticeable, you should have known. Care.
Not inadvertent contribution: accident that you ran into. No ordinary negligence.
Andrade (moves calf away from cow, trampled): knew that cows act that way around babies
and didnt have to be on property.
o Assumption of Risk: Choice, you knowing chose to encounter the risk.
Not inadvertently encounter.
Or left without a reasonable choice
o Determining fault of plaintiff
You knew and proceeded anyway
You werent burdened to do activity
Boundaries to SL
o Harm can be eclipsed if the harm suffered would have been just as bad without the Ds liability.
Rain overflowing ponds and flooding.
Non-doctrinal
o Lubin v. Iowa City (water main broke, used till broke): Wouldnt be fair for city to get the benefit of
lifespan and no liability.
Strict Liability for abnormally dangerous
o Exner v. Sherman (dynamite near house in hut, blew up): Abnormally dangerous activity is one that
you cannot make safe. Could have kept dynamite away from town, but would have had to carry
through streets more.
High magnitude of harm (not loss)
Risk cannot be brought down to a reasonable level either by care or less activity
The party who chooses to use the product should bear the risk of liability rather than the victim
who has no relation to the product.
o Restatement
HFesque
High degree of risk
Social
o ADA
Hazardous wastes, storing or using explosives, storage of natural gas, poinsonous substances,
fumigation
o Siegler (17 year old girl, gas tanker flipped, died): Dangerous and magnitude is very high. It is difficult
to apply negligence because all the evidence is burnt up and we dont want to hold the wrong person
accountable. But, the last person you want to hold accountable is the innocent victim and if you hold
the company strictly liable, they will be incentivized to fix the problem.
o American Cyanamid (Posners opinion): Narrow view of SL, if you couldnt do anything to change the
activity to make safer we wont impose SL.
Activity level effects are the only justification for SL: We want def to think not only about how
careful they do something, but how much they do it.
No fairness justification weight
o But much SL liability that harm should not be avoided but someone should pay
for it.
No loss spreading weight
And Construe activity effects narrowly
o Patch Test Duties
No duty: Allergy to strawberries, encounter tiger in the wild.
Warning Duty: When peanuts in factory. Patch when leg falls off .001% of time.
Beyond warning: prescription drugs, incentivize to find safer drug, but drives up price.
Defenses to ADA
o Assumption of the Risk
McLane (Construction work, gas explosion): He chose to go on property and knew there was
gas, but he was not in control of the explosion that happened at another tank.
o Knowing Contributory Negligence
Rare Feline (tiger bit hand): Assumed the risk of petting a tiger, but had been led to believe it
was a safe tiger.
But ordinary negligence, inadvertently and carelessly exposing oneself to a risk, is not a
defense.
Abnormal sensitivity is a limit.
o Proximate Cause
Yukon (criminals steal and blow up explosive house):
Is the risk of what happened within what makes the scope of the activity ADA? Yes.
Mink (minks kill young because of explosion):
Is animals killing each other what makes explosions dangerous? No.
o Owner has a greater capacity to control the minks if he is warned, but that wont
happen because there is no liability.
Product Liability
o Banks (9 year old eats rat poison, thinks candy): There is no advantage to having a warning over the
chemical for throw up, it is a much better precaution.
o Denny (rejects 3rd, Jeep accident, off-roading, safety):
Fails RU: Off roading is safer the way the car is designed.
But Passes CE: But they marketed the car as safe on streets and consumer wouldnt know
otherwise.
Capacity in Tort
At a young age you cannot be negligent, but you can commit a tort.
o Garrett v. Dailey: You have to be accountable for what someone your age would reasonably know.
o Ellis v. DAngelo: A child can commit a tort if they know what they are doing.