Date: Mon, 27 Feb 2006 23:34:09 -0700

From: Lewis Klar

Subject: Innocent trespass

Although Steven Sugarman is correct in his assertion that under Canadian law there is no liability without fault, in the case of trespass actions, fault does not imply moral fault or reasonableness of conduct, but "legal" fault. Thus where a person deliberately and directly breaks into a cabin without consent of the occupier, he is at fault - he has intentionally interfered with the exclusive occupation of another person's land. Whether "necessity" should be a defence is another, separate question; but it has nothing to do with "fault". As I explain in my comment in the Issues In Legal Scholarship symposium, I believe there is no good reason to force the cabin owner to pay for the hiker's predicament, if he chooses not to.

There is every reason to require compensation should the owner seek it. These reasons include the integrity of the trespass action, ease of administering the law, predictability, avoiding costly litigation (was it an emergency? was it necessary? was the emergency of the hiker's own making?) among others. I attempt to explain the Canadian law of trespass and my reasons for rejecting the necessity defence, at least in so far as the issue of compensation is concerned, in the comment to which Steven referred.

Lewis Klar

>>> Stephen Sugarman 02/27/06 9:52 PM >>>

I am sorry to be slow in contributing to this topic, but I have just returned from a month in India.

Two brief points.

1. I just published an article that is about 150 pages long (in the on-line journal Issues in Legal Scholarship, and also available on my website) about the "necessity" defense. In the paradigm cases the reasonable D is viewed as having a privilege to "trespass" on P's property -- e.g., D's ship will be sunk by a storm unless D ties up at P's dock, or D will starve in an unexpected snow storm unless D breaks into P's mountain cabin and takes shelter there. Hence, as for the intentional entry onto land, there is no strict liability. But what if the ship damages the dock, or the hiker caught in the storm eats enough food and consumes enough firewood to keep himself alive? Under US law, D is liable for the harm done (harm to the dock, value of the chattels used). Under UK law, as I understand it (and in my view under Canadian law as well), there is no liability if there is no fault. Nearly all writers on this subject favor the US solution (although some try to claim that liability sounds in "unjust enrichment" and not tort) -- but I oppose liability on the ground that no convincing justifications for liability without fault have been presented, and that in the society in which I would like to live, the moral duty of people would be to welcome those in distress with no thought of making them pay for the food, services, etc. they receive. (I feel differently if D breaks into a pharmacy -- where P's role is to be a rescuer for a fee -- and takes medicines needed to save D's life.) (Lewis Klar has published a comment on my paper in the same issue of that journal.)

2. Suppose a vehicle driver has a sudden and unexpected seizure and the vehicle comes onto P's land and damages P's building. I think that by now the US law everywhere is that there is no liability, as there is no fault. Some like to argue that the result should be different when the non-at-fault D acts deliberately. I still think that before strict liability can be applied, we need a justification for it. What is that? In some cases, the point of the trespass action is to determine property owner boundary lines. If that is what is going on, then perhaps fault should be irrelevant. But that is not the sort of case I am primarily thinking about.

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