Date: Fri, 24 Feb 2006 15:49:49 -0600

From: Richard Wright

Subject: Innocent intentional trespass

Side note: In general in the United States, unlike (apparently) in England and the Commonwealth, trespass actions require intent (to interfere with the requisite protected interest). Negligently caused interference would not be treated as a trespass action but rather as a negligence action.

There are numerous examples of "cases like Stanley where D does some action which leads to an invasion of my ["geographical"] space but had no intention of actually entering that space." For example, a person intends to drive down the street but his conduct, done with the intent of causing this (legal) intrusion on the street space, accidentally results in his car going off the road onto the plaintiff's land.

It is important to distinguish these types of situations, in which the defendant intended some act (e.g., shooting a gun, driving a car) [a "voluntary act"], but did not intend the consequence required for the particular intentional tort (e.g., the pellet's making contact with the body of the plaintiff, or the car's going off the road onto the plaintiff's property). As the Restatement emphasizes, but too many student study guides do not, the intent required for the trespassery intentional torts is the intent to cause the required legal injury, not the mere intent to act (or, at the other end of the spectrum, the intent to harm).

For person, land, or chattel, the protected interest is one's dignitary/autonomy interest in noninterference with one's person, land, or chattel -- with the debated lesser protection of that interest for chattels if (as in the United States) there is only protection against a significant interference with one's chattel.

The intent need only be an intent to interfere with the thing that turns out to be someone else's person, land, or chattel, regardless of an honest and reasonable mistake regarding ownership, consent, or perhaps even the nature of the thing being intentionally intruded upon -- as when slapping at another person's leg that is thought to be the leg of the table.

Cases involving mistakes about the actual nature of the thing are (I believe) rare, but there is an old United States case (which I cannot now locate) involving a defendant who shot the plaintiff's dog believing that it was a wolf. Held: liable, regardless of good faith or reasonableness of mistake. I am not aware of any similar case involving persons, but imagine a case in which a defendant in some dark woods at night sat on, pissed on, or chopped on a sleeping camper in a bedroll, believing (in good faith and reasonably) that the sleeping camper was a log. On the other hand, there is another case in which the defendant drove over a box tumbling down an alley, which it turned out had a boy in it, and the boy was injured; the court found liability based on negligence rather than battery, focusing (if I recall correctly) on the remoteness of damage issue (supposed foreseeability of children being in box) rather than the basic tort action. I think liability should have been available even in the absence of negligence: before you intentionally act upon something, you'd better be sure that you have the right to do so, because you act at your peril.

One interesting line of cases in the United States is cases involving unintentional damage by excavators to underground pipes, cables etc. Some courts have found liability under a trespass theory, arguing that the defendant intended to intrude upon the particular location where the pipe, cable, etc. was buried, and that lack of knowledge of the pipe, cable etc. was immaterial. Should the result depend on whether the pipe, cable etc. is treated as part of the realty or as a chattel?

Richard W. Wright
Professor of Law
Chicago-Kent College of Law
565 West Adams Street
Chicago, IL 60661, U.S.A.
phone: 312-906-5044
fax: 312-906-5280
Recent papers: http://ssrn.com/author=146352

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From: Neil Foster
Sent: Friday, February 24, 2006 3:22 AM
Subject: ODG: RE: Can Trespass to land be committed without fault (other than in Canada)?

 

Dear Colleagues;

First, thank you very much for the speedy and thought-provoking responses! I have already incorporated some of the material into a lecture on Trespass to be delivered to my Torts class next week!

Professor Wright's response made me think very carefully. What it seemed to tell me was that not only did I not have a full grip on the area of trespass to land, but I wasn't really sure whether I properly understood Stanley v Powell. In Stanley the defendant loosed off a shot-gun and what the jury was taken to have decided was that a pellet ricocheted off an oak branch and hit the plaintiff, an employee standing off to one side to pick up the deceased game. It had to be assumed that the shot was not careless (ie the deft could not have foreseen his shot would so rebound), nor of course intentional. However, there is no doubt that it was voluntary and causally related to the plaintiff's injury- the deft pulled the trigger, the shot left the gun, no conscious force intervened before it hit the plaintiff. The deft was found not liable. The judgement of Denman J there seems to adopt (at p 93) the proposition put forward by Bramwell B in Holmes v Mather (1875) LR 10 Ex 261 that for a trespass to be wrongful it must be "either as being wilful or as being the result of negligence".

Does the explanation lie in the precise nature of what the deft intends? That is, if the deft intends to cause contact with a person in front of them, there will be liability even if through no carelessness of the deft the person does not consent. (Eg a colleague suggested to me a surgeon who operates on a patient believing that the patient has consented because he has been told so by a normally trustworthy colleague.) In that case a rule of "strict" liability will operate (in much the same way as a rule of strict liability for vicarious behaviour of employees?) as a very strong incentive to get your information right - in other words, don't only "believe" that someone is consenting before touching them, you must "know". So with the stranger whom you slap on the back (although here I must say there would be few of these cases where some sort of carelessness could not be proved.)

When I first read Prof Wright's message I thought he was referring to the "leg" of the table (an inanimate object). When I re-read it I see he means another person's leg. But take my misreading: what of slapping what you think is a chair leg that turns out to be someone else's leg? Here the deft does not even intend to touch a person (much as you may say that the deft shooter in Stanley v Powell had no intention to cause contact with a human being).

Of course Stanley may be wrong, but it seems to have been accepted as correct in the area of trespass to the person for many years. For Australia see the careful and highly regarded judgement of Bray CJ in Venning v Chin (1974) 10 SASR 299, esp at 310: "I take it that there is no liability in trespass for the use of force against the person which is neither intentional nor negligent". The judgement of Windeyer J at first instance in the High Court of Australia in McHale v Watson (1964) 111 CLR 384 is also highly regarded: "the plaintiff could not succeed in trespass if what the defendant Barry Watson did was done without intent that the thing he threw should hit her and without negligence on his part".

So, as others have said, it seems that we need to consider the nature of the interest protected by the particular form of trespass. Does this represent a fair schema?

(1) Trespass to the person: the interest protected in battery is bodily integrity, in the sense of the interest not to be touched. If D intends to touch P's person, then D will be liable even if honestly mistaken about some fact that would excuse the touching. But if D does some action which does not involve intention to touch (someone's?) person, then D is not liable in the absence of fault. (This will allow for Stanley).

(2) Trespass to land: the interest protected is "geographical" integrity: the right not to have any part of my land touched or occupied by someone else. If D intends to enter the geographical space which constitutes my land, then D will be liable even if honestly mistaken about, say, the line of the boundary or the legal ownership of the land. Are there cases like Stanley where D does some action which leads to an invasion of my space but had no intention of actually entering that space? It seems more difficult to come up with an answer here. For trespass to the person there are a number of objects in the universe I could be intending to touch, only some of which are persons. But for trespass to land whenever I move, I intend to enter some geographical space.

(3) Presumably the analysis can be extended to trespass to chattels: the interest protected being the right not to have my chattel touched by someone else (I can't at the moment think of an adjective to describe that sort of "integrity"!) [I will ignore for the moment the debate about whether trespass to chattels is actionable per se - I think there are good arguments to say it should be.] If D intends to touch a chattel which is in fact mine, then even if mistaken about the ownership of the chattel D is liable. But if D did not even know that a chattel existed, intending simply to dig up the ground, then there will be no liability unless it was careless not to check first (my take on National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861.) This fits in with the accepted doctrine of strict liability in conversion, etc. Perhaps one could argue that if D intended to throw a punch at me, but hit my chattel instead, then he ought not to be liable for trespass to chattels!

I dare say this is all basic stuff for most here. But it has helped me to think through some useful issues.

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