Date: Mon, 27 Feb 2006 12:14:12 -0700

From: Lewis Klar

Subject: Innocent intentional trespass

The basics of Canadian law regarding trespasses are as follows.

The essential element of trespass is that it is a direct interference with persons, possession of chattels, or occupation of land. It cannot be committed indirectly, which I believe distinguishes Canadian law from US law. It must be committed intentionally or negligently to be actionable. As Professor Wright stated mistake is no defence to a trespass. As long as the defendant intended the actual physical consequences which constituted the trespass it matters not that the defendant was mistaken as to the legality or wrongfulness of those consequences. The older American case which Wright alludes to is Ranson v. Kitner, 31 Ill App 241 (1888) - the dog/wolf case.

The concept of negligent trespass is a little more interesting. There are two views here. The view which I agree with is that a negligent trespass is a trespass committed as a result of a lack of reasonable care on the defendant's part. For example, carelessly shooting one's friend in a duck hunting accident, which as we all know, can happen, is a negligent trespass! The other view is that a trespass is almost a strict liability tort, and there are only a very few limited defences. Lack of fault is one of them, but the standard here is not merely reasonable care, but the greatest degree of care and skill possible. That is, it almost has to be an inevitable accident for the defendant to exculpate himself. According to this view the defendant will be liable even if he did not intend to shoot his friend, and even if he was not negligent in the ordinary sense of the term, but he cannot prove that he used the greatest degree of care and skill possible (Dick Cheney perhaps?). I discuss these two views in my article which I referred to in an earlier e-mail.

Consent is also a defence of course. The interesting question here is whether consent is a defence where the defendant reasonably believed that the plaintiff consented., although she really did not. I do not believe this question should be confused with the negligence defence. I do not have a case which clearly establishes that a reasonable belief that the plaintiff consented amounts to consent, although the issue comes up tangentially in the Scalera sexual assault duty to defend insurance case ([2001] 1 SCR 551).

I hope this helps.

Lewis Klar
Professor of Law
University of Alberta
Currently Visiting Professor, University of San Diego

>>> "Wright, Richard" 02/24/06 2:49 PM >>>

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?

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