From: Wright, Richard <Rwright@kentlaw.edu>
To: obligations@uwo.ca
Date: 17/06/2009 07:17:53 UTC
Subject: RE: reasonable mistake and the reasonable person
Re: reasonable mistake and the reasonable person
Along with Prosser, I disagree with the old cases and the Restatement position that a defendant who makes a reasonable mistake in self defense should not be liable for a battery.  I think those cases are poorly reasoned and were decided at a time when it was thought that to hold the defendant liable would label the defendant as being at fault and/or mean that the defendant should not have defended himself against the reasonably (but mistakenly) perceived attack.  Vincent has it right: this is SL, not fault.
 
There of course was no mistake in Vincent, so the mistaken self-defense cases are inapposite.  The defendant there knew that he was trespassing on and damaging another's property without consent.
 
The mistaken self-defense cases are an exception to the general position regarding mistaken trespass.  The results have been more mixed in cases involving mistaken defense of others.  As the Restatement indicates, the liability is clear in mistaken trespass to land or chattel cases and mistaken recapture of property cases, and also in cases involving mistaken belief that there is consent.

From: Stephen Sugarman [mailto:ssugarman@law.berkeley.edu]
Sent: Tue 6/16/2009 5:48 PM
To: Simon Douglas
Cc: Wright, Richard; Tsachi Keren-Paz; obligations@uwo.ca
Subject: Re: reasonable mistake and the reasonable person

Where there is a battery claim and the defendant asserts self-defense but there was a reasonable mistake by the defendant (who thus injured an innocent party), the defendant wins according to the ALI Restatement and some old cases.

See Section 63 Restatement of Torts (Second) (1965), especially comment h, illustration 7. The leading cases on this point are Courvoisier v. Raymond, 23 Colo. 113, 47 P. 284 (1896) and Crabtree v. Dawson, 119 Ky. 148, 83 S.W. 557 (1904). In the Reporter's Notes, Prosser wonders whether the defendant ought not bear the costs of his mistake.

In my very long article on the "necessity" defense (in which I attack the VINCENT decision and the Restatement's endorsement of it), I use the rejection of "strict liability" by the Restatement and these cases for what could be termed trespass to the person as an example of how US law seems inconsistent.

Steve Sugarman

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Simon Douglas wrote:

Ranson v Kitner 31 Ill App 241 (1888) is a good example - the defendant shot the  claimant's dog, thinking it was a wolf, but was found liable in trespass.

Simon Douglas

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 "Wright, Richard" <Rwright@kentlaw.edu> writes:

Not quite the answer to the question you pose, but an answer that moots your question.
 
I am traveling so I don't have access to my copy of the Restatement Second, but I believe that it states the general position in US law that the mistaken trespasser is liable despite the reasonableness or good faith of the mistake, unless the mistake was intentionally or negligently induced by the plaintiff.

________________________________

From: Tsachi Keren-Paz [mailto:t.kerenpaz@law.keele.ac.uk]
Sent: Sun 6/14/2009 5:05 PM
To: obligations@uwo.ca
Subject: reasonable mistake and the reasonable person

Dear colleagues,

Can anyone refer me to discussion (in either case law or literature) of the question whether reasonableness in the context of a reasonable mistake (for example mistake about the claimant's consent to touching in battery) is to be judged by the same or different considerations as reasonableness in the context of standard of care in negligence?

Any thoughts of whether the tests should be the same/similar/different?

Best wishes
Tsachi