Torts Class Notes 9/10/03


We talked about consent last time.


Consent can be determined from:


·        The circumstances of the act

·        Implied acts or words

·        A prior course of conduct between the parties

·        Custom

·        Whether a reasonable person would believe that the plaintiff consented

·        Whether the defendant exceeded the scope of the consent given


There are two views on consent when it comes to unlawful behavior, as expressed in Hart.  The majority view says that consent is ineffective and the wrongdoers may recover damages from one another, while the minority view says that consent is effective and no recovery is permitted.


If the person participating in the unlawful behavior is a person who is protected by statute, we won’t hold consent against them if they engaged in that behavior.


We talked about self-defense:


·        Reasonable force is permissible.

·        You must have a reasonable belief that force is necessary, but you can be mistaken.

·        You must retreat if possible, but you don’t need to in your own home.


We talked about defense of others:


·        In some jurisdictions, mistake is not privileged: you “stand in the shoes” of the person you’re defending.

·        In other jurisdictions, reasonable mistake is privileged.


Think carefully about the incentives that are created by each of these rules.


Defense of property – Katko v. Briney


The defendant rigged up a spring gun in an old farm house to hurt trespassers.  Katko broke in and the gun shot him in the leg.  The jury found for him and the defendants appealed.


The rule given was that you can’t set up a device that uses force in excess of the force you’re allowed to use in person.  In turn, you can’t use deadly force in person to protect your property.


What is the reasoning behind this rule?  Are innocent people likely to get hurt by these mechanical devices?


A machine lacks discretion.  A spring gun shoots every time and causes harm.


Also, we value life over property, even if the person is a burglar.  We also want to discourage violent interactions between people.  We would rather have a court intervene.


When you defend property, what methods may you use?


·        You may use reasonable force under the circumstances.

·        You cannot use a spring gun unless that is reasonable force.  This is legally risky in a non-dwelling house.

·        A balance must be maintained between protecting innocent persons and minimizing harm from dangerous interactions.


What if you give fair warning of the spring gun?  Does that make it more legal?  No, the warning that there is deadly force on the premises is not sufficient if the deadly force is unreasonable.  It may help you legally to give notice if you have a vicious dog.


What about barbed wire or spiked railings?  They may be considered fair warning in and of itself.


Why did Katko collect so little?  The jury probably didn’t have much sympathy for him because he’s a criminal.  The jury implicitly says “it was bad to use the spring gun, but it wasn’t that bad”.


A vicious dog may not be excessive force if you give notice of the dog.  If you keep it secretly in your house and let it out when a golfer comes to get his balls, it may be found to be excessive force.


If you’re privileged to use deadly force in your home, reasonable mistake is a defense to shooting the wrong person.


Recovery of Property – Hodgeden v. Hubbard


The plaintiff bought a stove on credit and the defendants found out his credit was no good.  They took the stove back by force.  Why did the trial court give the plaintiff a dollar?  They thought the plaintiff shouldn’t get any more than nominal damages because he was the wrongdoer in this case since he bought the stove fraudulently.


What kind of force can you use when someone has defrauded you?  In this particular case, because the plaintiff drew a knife, the defendants were entitled to the force that they actually used.


When you recover property, hot pursuit is required, and you must demand your property back before you use force.  Such force must be reasonable.


What if the repo man shows up to take your property and you say no?  Can the repo man use force to take back your stuff?  Do we have an interest in protecting the repo man?  Do we have an interest in protecting the person whose stuff is being taken?


What if you hold over in your apartment after the lease is up?  Can the landlord come into your apartment and change the lock so you can’t get back into your own apartment?  What might the tenant do?  They might be angry or violent.  You might also be mad at the repo man.  We want to discourage that behavior.


Landlords can’t throw people out, they must go to court.  Same thing with repo men: we want to discourage them from being violent and instead have them go to court.  In general, we don’t want to increase the number of violent interactions that take place in society.  We want to generally discourage “self-help”.  Repo men must be peaceable.


Can I batter someone to get my sheep back in a contract dispute?  No, in fact, you have no right to use force whatsoever.  If you voluntarily relinquished your goods to someone else, you have no right to take them back by force.


Bonkowski v. Arlan’s Department Store


The plaintiff bought some stuff and started to leave the store.  A security guard told her to stop and said she was suspected of shoplifting.  She emptied her purse and checked it out and they found she didn’t steal anything.  She sued the department store and the security officer.  What is the issue on appeal?  Did the store have the privilege to stop her?  Under what circumstances does a store have this privilege?


If a merchant has a reasonable belief that someone has stolen something, they may detain the person reasonably.  But what constitutes reasonable detention?


The place where you are arrested should matter.  The farther away from the store you are, the less likely we are to view the detention as reasonable.


The amount of force used would also affect the reasonableness of the detention. 


We also consider what the plaintiff said, the value of the item, whether an alarm went off, whether the person started running, and other relevant facts.


We have the shopkeepers’ privilege because of the problem of shoplifting.


If you find out someone took something several days later, you can’t go after them yourself.  You must use the legal system.


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