Date: Tue, 28 Feb 2006 11:54:26 -0700

From: Lewis Klar

Subject: Innocent trespass

One final point on the necessity defence. If readers are interested in my views on Canadian law and the defence of necessity, I invite them to look at the commentary I wrote in the Issues In Legal Scholarship Symposium.

One of my main disagreements with Sugarman concerns the legitimate mandate of tort law. Even if I thought that a property owner should be forced to let a stranded hiker, with his $300 hiking boots, his BMW at the parking lot at the head of the trail, and who was stupid enough not to check the weather report, bring a cell phone, or emergency supplies), break into the property owner's cabin, burn his furniture, and eat his food, and not be required to pay for any of it, I would not want a tort law judge to decide that. I want those types of redistribution of wealth decisions to be decided by elected representatives who are accountable and ultimately removable. After all, Professor Sugarman's communitarian values, although commendable, are not necessarily shared by everyone, and not even by all tort law judges. If a tort law judge believes that motorists should be required to pick up other motorists whose cars have broken down, or, to take an extreme example, that everyone should be donating 20% of their income to charities ( as some religions dictate), should that also become part of tort law?

As I tried to express in my comment, being against a tort law which forces property owners to become the unwilling patrons of stranded hikers, is not to personally be against sharing. If I were wealthy enough to own a cabin in the mountains ( which I am not since I am a Canadian law professor), I would feed and shelter stranded hikers, and ask them for not a penny, as long as they were reasonable. That would be my decision (or in a democracy, my elected representatives' decision)- it is not a decision which I think a tort law judge should make for me.

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.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>