Date: Mon, 27 Feb 2006 14:03:07 -0600

From: Richard Wright

Subject: Innocent intentional trespass

Thanks, Lewis, for your message and for the Ranson v. Kitner citation. Phil Lister wrote to me that he remembers a British case from his law school days (1967), then just a few years old: Cooper vs Letang.

As you and others have noted, trespass actions in the United States no longer require direct interference, but they do require intent (yet are still "strict liability" in the sense of liability in the absence of [subjective or objective] fault, for the sorts of cases that we are discussing). On the other hand, although they are "trespassery torts," actions for trespasses to the person (assault, battery, false imprisonment) are not referred to in the United States as trespass actions, but rather by their specific name (assault, battery, false imprisonment). The only actions still entitled "trespass" are trespass to land and trespass to chattels.

Apparently, there would be clear liability for trespass to person under Canadian tort law in the hypothetical that I posed of the hiker in the deep dark woods who sat on, pissed on, or chopped on the sleeping plaintiff whom the hiker believed was a log, regardless of the reasonableness of that belief. Right?

What result under Canadian tort law in the case in which the defendant purposefully/knowingly ran over the tumbling box, not knowing that there was a boy inside the box? The defendant had the purpose/knowledge of running over (and thus damaging) not only the box but whatever (if anything) might be in the box. Would this mean that he "intended the actual physical consequences which constituted the trespass" and thus would be liable for trespass to the boy's person (battery)? Or must the defendant have specific knowledge of what is in the box?

In a separate message to me, Robert Stevens argues (continuing, as he notes, a prior debate between us on proximate cause, remoteness, extent of responsibility):

"In running over the box, you are asserting a liberty with respect to the (property) right to the box. The child's right to bodily safety is another right altogether. The driver didn't by his actions intend to assert a liberty with respect to the child's bodily safety, although the reasonable person would know that there is a slight risk of someone being inside."

It seems to me that the driver is asserting a liberty with respect to not only the box but the contents of the box, whatever they might be .

- Richard

-----Original Message-----
From: Lewis KLAR
Sent: Monday, February 27, 2006 1:14 PM
Cc: Brill, Ralph
Subject: Re: ODG: 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.

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