Torts Class Notes 9/15/03


Practice exam Wednesday!


Last time, we talked about defense of property and mentioned that people canít do indirectly what theyíre not allowed to do directly.Thus, spring guns and the like are illegal, or more properly, if someone is hurt by one you will be liable.The problem is that machines do not have discretion like people do.The goal is to have safe ways to protect your property that provide notice of their danger, for example, barbed wire.


One who is wrongfully dispossessed of a chattel by force or fraud has the privilege to repossess that chattel with reasonable force through fresh or hot pursuit. This is a circumstantial decision made case-by-case by a defendant and judged case-by-case by a jury.Deadly force will probably never be justified to recover property.


If you wait an hour or a couple of days before pursuing someone, itís no longer hot pursuit and you must resort to the legal system to regain your property instead.


We discussed the shopkeeperís privilege, which says that a shopkeeper can reasonably detain someone who they reasonably believe stole an item from the shopkeeper.Whatís reasonable?That will by and large be a question for the jury.




This is the last major defense to intentional torts.This is not a common problem.


There are two forms of necessity:


1.     Public necessity Ė Surocco v. Geary

2.     Private necessity Ė Vincent v. Lake Erie Transp. Co.


Surocco v. Geary


The defendant destroyed the plaintiffís house to keep fires from spreading through the city of San Francisco.The defendant was the Alcalde of San Francisco, AKA the mayor.Is that important?Sure.Government officials often have immunity.Why do we hold private citizens to a higher standard of liability?We generally donít want citizens to take the law into their own hands.We also donít want to punish public officials for doing their job.


What is Surocco suing for?He wants to be compensated for the property he could have removed from the house if the city had not blown it up but it had burned later.


What if Suroccoís house was next to the mayorís house?Would that make a difference?Would the mayorís self-interest negate the good he was doing in the community?Nope.


A private citizen will be put into this position very rarely.


Public necessity is not a privilege only for public officials.Public necessity justifies any act that is necessary for the public good whether performed by a public or private official.


Private citizens may not be so quick to act because they insure.


Damages will only be rewarded in the case of public necessity if the actor makes an unreasonable mistake.


To actually use this privilege, you must prove to a potentially skeptical jury that there was real necessity at work.


What if the mayor had made an unreasonable mistake in this case?Who would pay the damages?The city would have to pay the damages on behalf of the city official.


Is this a just result?What if police officers commandeer your car and wreck it?Will they have to pay for that?What legal principle can we rely on to get our stuff back when the government takes it out of necessity?The Fifth Amendment says the government canít take your stuff without just compensation.Recall, however, that the Fifth Amendment only applies to the federal government and not the states.The Fourteenth Amendment hadnít been passed by the time of this ruling.


What if the mayor destroyed a $1,000,000 house to save a $5,000 shed?Itís not a very economical decision.But is this a reasonable decision?Economics will play into the decision.


Notes on Surocco and public necessity restated


Will the defendant be liable when he is protecting a county against fire?Nope.What about a public official who burns clothing of a person who died of smallpox?Thatís okay.


Public necessity kicks in when there exists a great danger that affects a whole community.The action taken in public necessity must be reasonable and done to protect the public.If the government takes your stuff, you must be compensated, unless you were the one doing the wrong that caused the ďtakingĒ.


Private necessity


In Ploof, it was held that you can only use reasonable force to expel someone who is trespassing on your property.Therefore, the defendant canít put the plaintiff in great danger.On the other hand, if it was just a boat moored to a dock and the defendant pushed it out to sea, we are weighing harm to one personís property against the harm to another personís property.How could you assess whether or not the plaintiff in this case had a necessity defense?Are there any instances in which the defendant would be justified in pushing the plaintiffís boat off the dock?


Vincent v. Lake Eric Transp. Co.


A ship moored to a dock.A storm came, and the boat was pushed by the storm into the dock, which got damaged.


What would the plaintiff allege that the defendant did?We suppose they are alleging trespass to land.


Why is the defendantís act here unlike a normal trespass?This is a contract relationship.The dock owner and ship owner obviously have some contractual relationship. The question is: What is the scope of the relationship?To what did the landowner consent?


Is there a trespass here?The rule is that you mustnít harm someone elseís property just to gain for yourself.


What if, during the storm, the dock owner tried to cut the ropes?Should he be liable?Just because you put your stuff on someone elseís property, they can throw it off and are privileged to do so.What if thereís a storm and someoneís boat is tied to your dock?Are there any circumstances in which you can cut the ropes to protect your own dock?


The facts of the present case say that you canít keep them from staying on your dock on a stormy day, but you may collect damages from them if your dock is damaged as a result.


Iím completely lost.I need a Nutshell.


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