Date: Mon, 27 Feb 2006 15:35:04 -0700

From: Lewis Klar

Subject: Innocent intentional trespass

Re: Richard's last e-mail:

Canadian law uses the same nomenclature as the U.S.: Trespass to the Person breaks down into Assault; Battery; and False Imprisonment. Then there is Trespass to Land and Trespass To Chattels.

I would agree that in Canadian law a hiker who directly interfered with the sleeping plaintiff in the ways described by Richard, although not knowing it was a person, would be liable for a battery, and an intentional one at that. Some (even some judges) might say that the battery was innocent or at most negligent, but I would disagree. I do not think they are using the terms correctly. I must concede that I have seen a case where cutting down logs thinking that they were on one's own land was described as a negligent trespass. Wrong. These trespasses are intentional. I think the case Phil Lister refers to was a case of a lady who fell asleep on a parking lot thinking it was a grassy area to relax on. The car drove over her. The issue was whether the contact was negligent. It certainly was not intentional. In Richard's scenario the contact with the person/log was intentional.

The boy in the box case might be argued in the following way. The contact with the box was intentional. But the contact with someone or thing in the box was not, unless one can argue that one should know with substantial certainty that the box contained something and that by intending to squash the box one would certainly also intend to squash whatever was in it. It is arguable however that the box could have been viewed by the reasonable defendant as an empty box and it was not substantially certain that it contained anything. This would lead me to a negligent trespass - the risk of direct contact with the thing in the box was a real one (since boxes do sometimes contain things) which the reasonable driver would have avoided. Voila - Negligent Trespass. Or it was not even reasonably foreseeable that there was something in the box and therefore the contact was accidental; ie not negligent, nor intentional.

Lewis

>>> "Wright, Richard" 02/27/06 1:03 PM >>>

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.

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