Date: Tue, 28 Feb 2006 09:41:21 -0600

From: Richard Wright

Subject: Fault and strict liability

I think it is misleading, indeed wrong, to treat conduct as faulty merely because it is intentional, regardless of whether the conduct is reasonable. Conduct is faulty only if it is conduct that should not have occurred, given the foreseeable risks to others. It is "legal fault" rather than "moral fault" if an objective perspective is used -- that is, if the conduct is conduct that should not have been engaged in by an adult with normal physical and mental knowledge, capacities, and abilities. For reasons of justice -- protection of rights -- we often but not always use an objective, legal fault perspective rather than a subjective, moral fault perspective. As some of you know, I have written extensively on this.

Strict liability is liability in the absence of fault, but it is not absolute liability (a point legal economists often fail to grasp). There must be, in addition to causation, conduct involving a foreseeable risk to others, and even then something else: e.g., the ultrahazardous nature of the conduct or activity, or, more frequently, conduct intended to cause the harm or injury that occurred, even if such intentional conduct is reasonable or justifiable.

In the private necessity cases, the private necessity creates a qualified privilege to trespass (there is a trespass, but there is an incomplete defense), but if harm to the plaintiff's property (harm to person not being allowed!) occurs purposely or knowingly there has been a case of deliberately harming another's interests in order to advance one's own interests. Morally, the plaintiff perhaps should be willing to have the harm occur and not seek compensation, but perhaps not. The situation is the flip side of the no duty to rescue: the plaintiff is not required to benefit the defendant. Even if one believes, as I do, that there should be a legal duty of easy rescue (but only when it is clear that the defendant knew the rescue would have been easy) easy rescue by definition does not involve any significant burden on or cost to the rescuer. When there is a significant cost to a voluntary rescuer, restitutionary issues arise, complicated however by the fact that the rescuer volunteered, often not at the request of the person rescued. In the private necessity cases, the owner of the land trespassed on did not volunteer to benefit the trespasser without any thought of compensation, or if he did he would not sue. It seems clear and just to me that a trespasser should have to compensate the plaintiff for the harm deliberately inflicted on the plaintiff's property, which was not posing any risk to the defendant but rather was deliberately used by the defendant, without the plaintiff's consent, to advance the defendant's private interests.

There seems to be a general feeling, not only among lay persons but also many academics, that liability in the absence of fault (even in the absence of personal moral fault) is unusual and improper. As Holmes long ago noted (although he is often cited to the contrary), liability in usually based on legal fault rather than moral fault. Moreover, liability in the absence of fault is common and justified, especially when it is based on intentional (albeit reasonable) conduct. (Although Holmes argued for liability only in cases of legal fault, he recognized certain exceptions and his conception of fault was the nineteenth century one of creation of a significant avoidable foreseeable risk to others.) Many cases of private nuisance -- which, as a distinct tort (distinct from negligence or strict liability for ultrahazardous activities) is always an intentional tort -- are cases of strict liability: this is the case whenever damages are granted but an injunction is refused. If, due to important public benefits that would be lost if the injunction were granted that greatly outweigh the nonserious (compensable and no significant health risk) harm to the plaintiff, the defendant's creation of the nuisance is deemed reasonable/justifiable, no injunction is granted, but the defendant nevertheless must compensate the plaintiff for the damages intentionally (knowingly) caused to the plaintiff. Such liability is just and necessary to secure the plaintiff's property rights and the right not to be used merely as a means for the benefit of others.

Situations involving sudden and unexpected seizures involve a lack of volitional conduct (either act or omission), which is a necessary condition for any tort liability, whether based on fault or strict liability. I am not sure what sort of situation Steve has in mind when he states that "some like to argue that the result should be different when the non-at-fault D acts deliberately." If he means the intentional trespass due to a private necessity situation, many, including me, believe there clearly should be liability in such cases, for the reasons stated above.

- Richard Wright

-----Original Message-----
From: Lewis KLAR
Sent: Tuesday, February 28, 2006 12:34 AM
Subject: Re: ODG: 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 [un]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.

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