Torts
Class Notes
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.