The "necessity" defense and the failure of tort theory: The case against strict liability for damages caused while exercising self-help in an emergency

Issues in Legal Scholarship

Volumn , Issue 7, 2005, Pages

  Sugarman, Stephen D ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84861274195     PISSN: 15398323     EISSN: 15398323     Source Type: Journal    
DOI: 10.2202/1539-8323.1063     Document Type: Review

References (369)

1. 109 Minn. 456, 124 N.W. 221 (1910).
2. Thus, no one means to suggest in these cases that the injurer should be held liable because he was somehow imprudent in respect to the storm or that he did more damage than he reasonably should have done.
3. For an extended treatment, see Stephen D. Sugarman, Vincent v. Lake Erie Transportation Co.: Liability for Harms Caused by Necessity, in Torts Stories (R. Rabin and S. Sugarman, eds. 2003) at 259-290.
4. 71 A. 188 (Vt. 1908).
5. Necessity as an Excuse for a Trespass Upon Land, 22 Harv. L. Rev. 298 (1908-09).
6. H.Terry, Some Leading Principles on Anglo-American Law 423 (1884).
7. 82 Eng. Rep. 539 (K.B. 1648).
8. O.W. Holmes, The Common Law, 147-49 (1881).
9. 26 T.L.R. 172 (Eng. K.B.D. Dec 15, 1909), [1912] 1 K.B. 496.
10. See, Sugarman, supra note 3.
11. Bohlen, Incomplete Privilege to Inflict Intentional Invasions of Interests of Property and Personality, 39 Harv. L. Rev. 307 (1926).
12. Trespass to Realty, 23 Harv. L. Rev. 490 (1909-10).
13. Trespass-Necessity, 10 Colum. L. Rev. 372 (1910).
14. Bohlen, supra note 11, at 314.
15. Id. at 316 (emphasis supplied).
16. This analysis was adopted early on, for example, by the Restatement of Restitution Section 122 (1937).
17. 124 N.W. at 222.
18. Id.
19. Bohlen, supra note 11, at 317.
20. Id. at p. 321, n. 20.
21. will have more to say later about the famous Mouse's case, 12 Co. Rep. 63,
22. 77 Eng. Rep. 1341 (1608), from which this rule comes.
23. To be sure, in some cases there may be a dispute over whether the defendant's conduct was reasonable (including the question of whether it was truly a necessary act). Resolving this issue may well turn on the nature of the proof offered and on whom the burden of proof is placed. For more on that, see text following footnote 171 infra.
24. He says "there is no reason why one who acts as a champion of the public should be required to pay for the privilege of so doing." Bohlen, supra note 11, at 317-18.
25. Later in his article Bohlen seems to say that the law then seemed to give an actor a complete privilege to destroy chattels in instances of private necessity. Id. at 313. But see Id. at 319. While this could, of course, be used on the other side, the point of Bohlen's discussion is that there should be no difference between realty and personalty, and that the privilege should be incomplete - requiring compensation, therefore - in both instances. Id. at 319-22.
26. Restatement of Torts (Second) Section 197 (1965).
27. Restatement of Restitution Section 122 (1937).
28. These cases are ambiguous in their import. In Swan-Finch Oil Corp. v. Warner-Quinlan Co., 167 A. 211 (1933), the defendant's barge, which was burning, was set loose in the water and eventually struck the plaintiffs dock and burned it. Although the court embraced Vincent, saying necessity was no excuse, this turned out to be dicta - since the court concluded that the defendant had been negligent and could be held liable on that basis. Somewhat in the same vein is Currie v. Silvernale, 142 Minn. 254, 171 N.W. 782 (1911).
29. By contrast, in Commercial Union Assur. v. PG & E, 220 Cal. 515, 31 P.2d 793 (1934), the court rejects the Vincent rule, in a case where the defendant sought to bring some of its property out of a warehouse which was seemingly burning out of control, but which action, alas, according to the plaintiffs, caused the warehouse and all its contents to be destroyed. Although the court said that a person is not liable for damaging the property of others in the course of making a reasonable effort to save his own, this too turned out to be dicta since the plaintiffs had based their case on a negligence theory and, in the end, were held to it.
30. Most useful for Vincent supporters is Latta v. New Orleans Ry. Co., 59 So. 250 (1912), where the defendant's boxcars containing cotton caught on fire, and the defendant moved those cars away from his other property in order to protect it. The fire, however, burned up the plaintiff's staves. At one point the court rather plainly says that since the defendant got the benefit from moving his cars, he should pay. It also seems to balk at the idea that it would be proper to compare the values of the property at stake and then let the defendant off if its was worth more, suggesting as well that this might involve it in making difficult and perhaps undesirable comparisons of how important the property was to each of the parties (e.g., it may have been the plaintiff's only property). Nonetheless, the court seems to go ahead and do that very thing, saying that it is by no means clear here that the defendant's effort was actually intended to save more valued property than was put at risk; that, of course, would make the case altogether different from Vincent. And, while not actually finding the defendant negligent, the court verges on that, being plainly disturbed by the fact that the fire originated in the defendant's own cars and saying that, as between the two, the defendant was "least innocent."
31. Arguably inconsistent with Vincent, yet also cited by the Restatement is Newcomb v. Tisdale 62 Cal 575 (1881). Yet another early decision, not cited by the Restatement and also arguably inconsistent with Vincent, is The Chickasaw, 41 F. 627 (C.C.W.D. Tenn 1890).
32. Restatement of Torts (Second) Section 195 (1965).
33. Reporter's Notes to Section 195, Restatement of Torts (Second) (1965).
34. Id.
35. Restatement of Torts (Second) Section 196 (1965). Although Comment h to Section 196 recognizes that the traditional rule has been one of governmental immunity in such cases, it points out that, in fact, the Section only covers the privilege to enter for reasons of public necessity and is technically silent on the question of compensation.
36. See Comment h to Section 196.
37. Restatement of Torts (Second) Section 197(2) (1965).
38. One could rationalize the provisions of Section 197 by suggesting, for example, that they stand for an alternative proposition: to wit, that when one deliberately chooses to enter onto another's property and causes damage, one is liable for that damage, even if one is entitled to enter and is not liable for what otherwise would be the mere trespass. The problems with this explanation, however, are: (1) while this states a rule, it hardly justifies it; and (2) such a rule is not only inconsistent with the common law position regarding public necessity (as reflected in Section 196), but it is also at odds with how the Restatement would prefer public necessity cases to be treated - i.e., that the beneficiaries of the entry, but not the actor, are liable.
39. Restatement of Restitution Section 122, comment b.
40. I note further that nearby Restatement Section 198, seemingly also meant to parallel Vincent, says that one who is privileged to enter onto the land of another to retrieve his own goods is strictly liable for damages he does to the other's property. Yet this provision can be distinguished on the ground that it is unreasonable to use self-help in such situations (i.e., where damage occurs), since the goods' owner there has the alternative, and presumably non-damaging, remedy of a lawsuit and the aid of the sheriff. For Bohlen's discussion of this issue, see Bohlen supra note 11 at 309 and 313-14, where he points out that Chief Justice Cooley, in his famous torts treatise first published in 1879, strongly resisted non-fault liability in such situations.
41. Bohlen criticized the seeming then rule (contra to Section 263) that, in the situation of injury to chattels rather than to realty, the party causing the harm out of necessity would not be liable. See Bohlen footnote 11 supra. In this regard, consider McKeesport Sawmill Co v. Pennsylvania R.R., 122 F. 184 (W.D. Pa. 1903), cited in the Notes to Section 263. The court there said that the defendant had the right to destroy the plaintiff's barge without having to pay compensation when this was reasonably necessary to keep the barge from damaging the defendant's (presumably more valuable) bridge. Yet it is also clear from the opinion that the court thought the plaintiff in the wrong in this instance for making no effort to save its own barge once it slipped its moorings. That, of course, takes the case out of the two-innocent-party pattern with which section 263 is meant to deal.
42. Note that Restatement of Torts Section 262 parallels for chattels the public necessity provision of Section 196.
43. Later in this Article I will discuss the Restatement's provisions on privileges to strike others and to cause bodily injury in necessity and necessity-like situations.
44. The American torts treatise writers also take up Vincent.
45. In the first edition of their highly influential and usually carefully reasoned treatise, Professors Fowler Harper and Fleming James argue that "... the policy which requires a privilege ... to invade ... requires that the actor make good any actual harm inflicted because this is the same sort of danger which he has escaped." F. Harper and F. James, The Law of Torts (1956) Vol. 1 Section 1.22 at 61. This strikes me as a non-sequitur, however. Then they go on: "The actor may not divert to another the loss threatened by a situation over which neither has any control and for which neither is culpably responsible."
46. F. Harper and F. James, The Law of Torts (1956) Vol. 1 Id. at 61. This may state the rule of Vincent, but hardly seems to be a reason for the result. Then they cite to Bohlen.
47. Harper and James also advance this proposition about the defendant in the Vincent setting: "since he profits by the intentional invasion of what are normally legally protected interests of another, it is fair that he make good the loss." F. Harper and F. James, The Law of Torts (1956) Vol. 1 Id. at 63. (Emphasis supplied.) But it seems to me that the issue is whether, in the non-normal, emergency situation, the plaintiff should have legal rights to recover for damage to his property.
48. For a somewhat differently expressed position to the same effect, see F. Harper, F. James and O. Gray, The Law of Torts (2nd ed. 1986) Vol. 1 Section 1.22 at 74.
49. The best known American torts treatise, by Deans William Prosser and Page Keeton, essentially sets out the law with approving commentary - to wit, in cases of private, as opposed to public, necessity the privilege to enter is described as "properly" incomplete. Prosser and Keeton on Torts (5th ed. 1984) at 147.
50. In what is now, in effect, the successor to the Prosser treatise, Professor Dan Dobbs devotes little attention to the matter apart from this baffling comment "..if the captain was a trespasser, he is liable for actual harm done in spite of his incomplete privilege to trespass." D. Dobbs, The Law of Torts (2000) at 250.
51. Keeton, "Conditional Fault in the Law of Torts" 72 Harv. L. Rev. 401 (1959).
52. Keeton, "Conditional Fault in the Law of Torts" 72 Harv. L. Rev. Id. at 410-21 (1959).
53. Keeton points out that in some settings people are thought to have a moral obligation to offer compensation even though under current law they have no legal obligations to do so. Keeton, "Conditional Fault in the Law of Torts" 72 Harv. L. Rev. Id. at 425 (1959). He does not consider, however, whether it would be wise in the cases he is evaluating to take the position that while the defendant has (or might have) some kind of moral obligation, he should not have a legal obligation to pay compensation.
54. Keeton does take up the different question of whether people's feelings that someone has a moral obligation to pay aren't simply a product of the fact that they have a legal obligation to do so; that is, for example, do we think dynamiters should pay because tort law says they must? But he, properly I think, rejects this as a serious challenge to his theory. Keeton, "Conditional Fault in the Law of Torts" 72 Harv. L. Rev. Id. at 425 (1959).
55. Keeton, "Conditional Fault in the Law of Torts" 72 Harv. L. Rev. Id. at 414 and 418 (1959).
56. Keeton, "Conditional Fault in the Law of Torts" 72 Harv. L. Rev. Id. at 415 (1959).
57. Keeton, "Conditional Fault in the Law of Torts" 72 Harv. L. Rev. Id. at 420 (1959).
58. For example, in the context of law school discussions where the casebook early on presents the Vincent decision, and given the probable student awareness of Keeton's support for the result, one would likely predict that, except in heady radical times now past, student opinion would generally fall into line with the majority view.
59. Id. at 419.
60. Id. at 429.
61. In pondering this difference, Keeton suggests two distinctions. Id. at 429. One is that his self-rescue example involved life; but then, as he points out, the blaster might be wanting to blast to build a new hospital, thus rejecting the life-property distinction. Actually, I am not much taken with this point since presumably one could find a blaster for the hospital who could post the bond. But this takes us to Keeton's other distinction which is that the blaster can make advance provision to protect his victims and the person acting in an emergency cannot. However, that, of course, is true for those acting in situations of necessity both to save their own lives and to save their more valuable property.
62. For further discussion of efforts to distinguish life saving from property saving cases, see text at footnote 187 infra.
63. Of course, notwithstanding these differences between the blasting and necessity cases, Keeton in the end does not propose a different result. My point is that at a minimum these distinctions rob the blasting result of its persuasive power to resolve the necessity problem.
64. At one point Keeton is comparing non-negligent motoring for which there is no strict liability with non negligent dynamite blasting and suggests that the former involves a "relatively slight risk of injury" and is "nearly universal" Id. at 421. The notion that blasting, buy contrast, is uncommon and ultrahazardous, of course, underlies the justification currently offered by the Restatement of Torts (Second) for strict liability for blasters. See Sections 519 and 520. In passing here, let me note that I have never been altogether sure what it means to say that careful blasting is especially dangerous. Does anyone really have data comparing the frequency with which careful dynamiting has caused harm as compared with prudent motoring? Perhaps, there is simply a visceral reaction to deliberately set explosions that could be seen to underlie many of the examples used by the Restatement.
65. In any event, while I suppose that one could try to argue that the Vincent facts constitute an "abnormally dangerous activity," I have not found any writer who has argued that the Vincent result should be based on this part of the Restatement. That is not surprising. After all, if (as discussed further below) the ship's captain took and damaged X's ropes that he found lying at the dock to use in order to help secure his ship to the dock during the storm, I assume that defenders of Vincent would favor imposing liability on the captain in favor of the ropes owner. But, that sort of harm is surely not what "abnormally dangerous activity" liability is about.
66. One irony in Keeton's article should be mentioned. Recognizing that non-negligent motoring did not then (nor now) give rise to driver liability to victims, he nonetheless suggests that perhaps public sentiment, then in 1959, was changing; and, although he is not completely clear about this, perhaps this changing sentiment could lead to the imposition of "conditional fault" liability on motorists akin to that imposed, as he sees it, in Vincent, the blasting cases, through the operation of the Worker's Compensation system, etc. Yet when Keeton took on a leadership role in the auto no-fault movement a few years later, the plan he backed did not generally require those who non-negligently hurt others with their cars to compensate their victims; rather victims were to be made to provide compensation for themselves. See R. Keeton and J. O'Connell, Basic Protection for the Traffic Victim (1965).
67. See Morris, Torts 42-46 (1953).
68. Morris and Morris, Torts, 39-42 (Second Edition, 1980).
69. Morris and Morris, Torts Id. at 41 (1980).
70. Morris and Morris, Torts Id. at 41-42 (1980).
71. In putting forward this argument, Morris is also trying to distinguish Cordas v. Peerless Transportation Co., 27 N.Y.S. 2d 198 (N.Y. City Ct. 1941), where a taxi driver (for his own benefit) jumped from his moving cab that had been commandeered by an armed bandit and the taxi ran into some people on the sidewalk. Having been determined to have acted reasonably under the circumstances, the taxi driver was held not liable. Morris' point is that in Cordas, unlikeVincent, we don't have to offer the plaintiffs a promise of compensation to get them to cooperate, since there is nothing they can do to prevent their loss. Id.
72. Incidentally, before he is willing to cooperate, that sort of dock owner might well insist on payment in advance - obviously not available in the emergency setting - in fear that the ship captain would turn out to be judgment proof; although, perhaps he could count on having the boat at hand and might think that he could prevent it from setting off before a bond is posted.
73. Id. at 40.
74. Professor Broeder, whose views on the Vincent problem I'll discuss shortly, has remarked about Morris' "cooperation" argument: "I have yet to find the student who would buy the analysis, and I seriously doubt whether Professor Morris ever did either." Broeder, Torts and Just Compensation: Some Personal Reflections, 17 Hast. L. J. 217, 231 (1965)
75. Morris, supra note 52, at 42.
76. Ehrenzweig, Negligence Without Fault, 54 Calif. L. Rev. 1422, 1459 (1966).
77. Ehrenzweig, Negligence Without Fault, 54 Calif. L. Rev. Id. at 1457 (1966).
78. Ehrenzweig, Negligence Without Fault, 54 Calif. L. Rev. Id. at 1455 (italics in original) (1966).
79. Ehrenzweig, Negligence Without Fault, 54 Calif. L. Rev. Id. at 1456 (1966).
80. Morris, supra note 52, at 41. It is because people can and do readily protect their built up property through first party insurance, that Morris endorsed the common law rule (disfavored as a matter of policy by the Restatement, as we saw) that one whose property is destroyed out of "public necessity" must bear his own loss - rather than have the community which benefited pay. Id. at 40.
81. Keeton, too, as we saw, found the loss spreading argument inapplicable to Vincent. See Keeton, supra note 38.
82. Ehrenzweig, supra note 59, at 1456.
83. Broeder, supra note 57.
84. Id. at 228.
85. Id. at 235.
86. Id. at 242. The Second Restatement of Torts recognizes that, because of the safety record of commercial air travel, this problem does not seem to call for liability under the basic structure of the Restatement of Torts (Second). Nonetheless, the authors adopted a special section, avowedly carving out a exception, that calls for strict liability in such cases. See Restatement of Torts (Second) Section 520A. For the Third Restatement of Torts, Professor Gary Schwartz, the then Reporter, proposed eliminating the special section on airplane ground damage since it had been so widely rejected by state courts, and the American Law Institute has now agreed. Restatement of Torts (Third): Liability for Physical Harm, Section 20, Comment k (Final Draft Approved by the ALI in May 2005).
87. Broeder, supra note 57, at 229-30 and 238. Here the Restatement, responding to business concerns about shoplifters, calls for limiting liability to cases of negligence. See Restatement of Torts (Second) Section 120A.
88. Id. at 232. This is based on the Cordas case discussed by Professor Morris as well. See Morris, supra note 52.
89. Broeder, supra note 57, at 233.
90. Id at 245.
91. Id. at 229.
92. Id.
93. Id. at 231.
94. Id. at 229.
95. Latin, Problem-Solving Behavior and Theories of Tort Liability, 73 Calif. L. Rev. 677 (1985).
96. Posner, Can Lawyers Solve the Problems of the Tort System?, 73 Calif. L. Rev. 747, 753 (1985).
97. Landes and Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. Leg. Stud. 83, 113 n.74 (1978).
98. Landes and Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. Leg. Stud. Id. at 128 n.74 (1978). Indeed, Posner says the dock owner "should in principle receive the competitive market value of [the ship captain's] use of his dock (which would include any risk premium to cover possible damage)"
99. Landes and Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. Leg. Stud. Id. at 128 n.74 (1978). Here, however, his point is to argue that merely paying for the damage done is insufficient, which in turn explains the phrasing in his comment on Latin's article to the effect that damages awarded in Vincent is what the dock owner is minimally entitled to.
100. Morris' behavioral incentive arguments were quite different. See Morris, supra 52.
101. "The storm ... surpassed in violence any which might have reasonably been anticipated." 124 N.W. at 221.
102. I also can't imagine how the dock owners would know in advance what to charge for this service.
103. Landes and Posner supra note 79,at 128.
104. Posner seems to be getting at this same point in his torts casebook where, after presenting Vincent, he asks: "Does the award of damages in a case like Vincent have any desirable incentive effects...? (Hint: recall the distinction stressed in Chapter 1 between care and activity.)" R. Posner, Tort Law: Cases and Economic Analysis (1982) at 182.
105. Landes and Posner supra note 79, at 128.
106. Posner, Tort Law supra note 85 at 187, which provides a very interesting discussion of the alleged failure of some key officials to attempt to stop the Great Fire of London by destroying buildings that would create a fire break because of their fear of personal liability for doing so.
107. Moreover, Posner's torts casebook well recognizes the seeming inconsistency between Vincent and other classic tort rules that conform to the fault principle that he typically favors. Id. at 184.
108. Fletcher, Fairness and Utility in Tort Doctrine, 85 Harv. L. Rev. 537 (1972).
109. At least it is clear that the ship, or at least the ship captain, did the "imposing." In terms of "being at risk", however, once the ship was tied down, I suppose that it could well have been that the ship's hull was as much at risk as was the dock - although the Vincent case itself tells us nothing about my factual surmise. I will pass over here this ambiguity about when and how to measure "nonreciprocal risks."
110. One problem with Vincent from Fletcher's point of view is that his theory is about "stranger" injuries. For example, doctors plainly impose nonreciprocal risks on their patients, but Fletcher does not want to hold them liable for injuries they cause absent their malpractice. But, of course, the ship owner and dock owner in the real Vincent case had an ongoing relationship. Fletcher recognizes this problem and assumes it away; see id. at 546 n. 38.
111. Id. at 548.
112. Id. at 550.
113. Id. at 564.
114. So, too, does his claim that an individual "can not fairly be expected to suffer... in the name of a utilitarian calculus." Id. at 568. In a later essay, Fletcher argues that because Ploof takes away the dock owner's right to cut the ship loose, it is only just that the dock owner (whose "rights are compromised") is awarded compensation by tort law.
115. Fletcher, Corrective Justice for Moderns, 106 Harv. L. Rev. 1658, 1671 (1993). In further support of this argument, Fletcher describes the ship captain as one who "dominates another" and the dock owner as a victim who has been put in a "subordinated position."
116. Fletcher, Corrective Justice for Moderns, 106 Harv. L. Rev. Id 1676 (1993). But all of this depends on accepting the crucial assumption that the dock remains the property of the dock owner in the strong sense of property ownership - which is the crucial issue to be decided. Hence, I see Fletcher using this sort of language to describe the Vincent outcome on the assumption that it is correct, and not as an argument for the result. After all, in public necessity situations one could also say that the injured party has been "subordinated," and because his rights were "compromised" for the social good, he too is owed compensation - although that is not the law, as we have seen.
117. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151 (1973).
118. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. Id. at 168 n.48 (1973).
119. Epstein, Causation and Corrective Justice: A Reply to Two Critics, 8 J. Legal Stud. 477, 479 (1979).
120. Epstein, Causation and Corrective Justice: A Reply to Two Critics, 8 J. Legal Stud. Id. at 488 (1979)
121. Epstein, Causation and Corrective Justice: A Reply to Two Critics, 8 J. Legal Stud. Id. at 499 (1979).
122. Of course, on a "but for" basis (the approach to causation used in traditional negligence theory) the ship, the storm and the dock were all causes of the harm.
123. Epstein, supra note 96, at 157.
124. Latin, supra note 77, at 705-06. Latin here has cleverly employed Epstein's own language with the parties reversed to make vivid the point.
125. Epstein, supra note 96, at 160. In his torts casebook Epstein puts it this way: "Should the person whose property is converted to the public use be required against his will to become the champion of the public?"
126. R. Epstein, Cases and Materials on Torts (8th edition) 56 (2004).
127. But see the discussion in Epstein's casebook where it is recognized that the public official might be disinclined to rescue if liable for damages since he won't get the benefits of rescuing; here, as contrasted with Epstein's earlier writing, it is suggested that the victim might be better compensated by a source other than the actor. R. Epstein, Cases and Materials on Torts (8th edition) Id. at 57 (2004).
128. th edition 2005) at 125. Dobbs' formulation does no more to persuade me that Epstein's approach is the proper one to take.
129. Friedmann, Restitution of Benefits Obtained Through the Appropriation of Property of the Commission of a Wrong, 80 Colum. L. Rev. 504 (1980).
130. See also, Friedmann, Valid, Voidable, Qualified, and Non-existing Obligations: An Alternative Perspective on the Law of Restitution, in Essays on the Law of Restitution (A. Burrrows, ed. 1991) 247 at 255.
131. Friedmann, Valid, Voidable, Qualified, and Non-existing Obligations: An Alternative Perspective on the Law of Restitution, in Essays on the Law of Restitution Id. at 505 (1991).
132. Friedmann, Valid, Voidable, Qualified, and Non-existing Obligations: An Alternative Perspective on the Law of Restitution, in Essays on the Law of Restitution Id. at 506 (1991).
133. Friedmann, Valid, Voidable, Qualified, and Non-existing Obligations: An Alternative Perspective on the Law of Restitution, in Essays on the Law of Restitution Id. at 509 (1991).
134. Friedmann gets in trouble at the outset when he defines property interests as including "those interests that a person is entitled to exploit and has a right to exclude others from enjoying." Friedmann, Valid, Voidable, Qualified, and Non-existing Obligations: An Alternative Perspective on the Law of Restitution, in Essays on the Law of Restitution Id. at 510 (1991). This definition would appear to give "landowners" no property rights at least as against public bodies who "take" their land for public purposes, just as it would appear to make the dock not the "dock owner's" property at least with respect to the ship owner in Vincent who he has no right to exclude - results that Friedmann clearly doesn't want to reach. He avoids this solution, as least as to eminent domain, in the entirely conclusory way of saying that while it is true that the landowner doesn't have the right to exclude the city, he is entitled to compensation!
135. Friedmann, Valid, Voidable, Qualified, and Non-existing Obligations: An Alternative Perspective on the Law of Restitution, in Essays on the Law of Restitution Id. at 510 (1991). So as to move the analysis along, I will simply concede that the dock owner in Vincent has rights to the dock, which I am happy to call property rights, that would entitle him to compensation were the dock taken through eminent domain.
136. Friedmann, Valid, Voidable, Qualified, and Non-existing Obligations: An Alternative Perspective on the Law of Restitution, in Essays on the Law of Restitution Id. at 530 (1991).
137. Friedmann, Valid, Voidable, Qualified, and Non-existing Obligations: An Alternative Perspective on the Law of Restitution, in Essays on the Law of Restitution Id. at 541 (1991) (emphasis supplied).
138. This imposition of liability, it will be recalled, is consistent with the preferences of Bohlen, although contrary to the usual understanding of the common law rule.
139. Restatement of Torts Section 197 and Restatement of Restitution Section 122. Friedmann says that his approach fits in better with traditional restitutionary thinking than with traditional torts thinking because he doesn't require the defendant to have acted - only to have benefited. He also admits that, in contrast with his proposal, the law at present generally has not been very receptive to the idea of imposing liability where the benefit was unsolicited. Id. at 541, 544-45.
140. It also seems a bit odd to use "appropriation" at all when someone damages rather than uses something.
141. Id. at 541, citing Section 121 of the Restatement of Restitution.
142. This is different from the possessor claiming his storage or selling costs. If nothing else, their payment might be thought required to entice the possessor to take the proper steps with the goods.
143. Id. at 541 citing P. Winfield & J. Jolowicz on Torts, who offer this example and about whom I will have more to say in due course. See infra note 174.
144. P. Keeton and R. Keeton, Instructor's Notes for Keeton and Keeton, Torts: Cases and Materials (2nd ed. 1978). The other Keeton is Page Keeton, torts scholar and former Dean of the Texas Law School.
145. Keeton Notes supra note 120 at 15.
146. 100 Minn. 299, 111 N.W. 1 (1907).
147. Keeton Notes supra note 120 at 15. In Vincent, the majority asks hypothetically whether the guest in Depue would be liable to the host, suggesting that it thinks he ought to be, but citing no authority for the proposition. 124 N.W. at 222.
148. 124 N.W. at 222. A different problem would arise were the captain to use the rope and then simply not give it back.
149. The Restatement of Torts (Second) in Section 263 offers yet another similar example: someone uses another's scarf as a tourniquet to stop his bleeding while awaiting an ambulance after an auto accident. The Restatement provides that there would be liability for the harm to the scarf caused by the blood. As noted above, those behind the Restatement, who give no reasons beyond the analogy to Vincent, agree there is no real authority for this result.
150. Newark, reviewing the first edition of Street's Law of Torts, in 19 Mod. L. Rev. 319, 320 (1956).
151. Newark also puts a more complicated hypothetical. "If I save myself from a pursuing murderer by taking a taxi, of course I must pay for the taxi." Id. at 320. As I have explained earlier in my discussion of compensation due doctors who rescue people on the public way, one can accept the proposition that compensation should be paid to a person whose regular job is to rescue people in acute distress without agreeing that the dock owner in Vincent should win. Moreover, as I there also noted, the right to collect compensation may be needed to induce the doctor to provide the rescue services. On the whole, it seems to me, the taxi driver is rather like the doctor; surely a private ambulance service would be. In sum, while I find this a difficult example, it nonetheless seems to me that if one were to give the taxi driver a right to compensation, it would be for reasons that don't apply to Vincent.
152. Morris, supra note 52 at 41. Of course, Morris shouldn't be seen as denying that the ship owner benefited; it is rather that this is not the usual unjust enrichment case where you have made yourself better off than before.
153. In his treatise on restitution, Professor George Palmer also questions the adoption of Vincent by the Restatement of Restitution. G. Palmer, Law of Restitution (1978) Section 2.10 at 139-40. It isn't that he objects to the result, but rather than it should be defended on torts grounds. Palmer's first point is that liability should not depend upon the captain successfully saving the ship. Yet, absent that, he wonders where there is any benefit of the sort that restitution traditionally requires. (It is not clear to me, however, why one could not as easily deem the "opportunity" to save the ship as the benefit.) Palmer further objects to measuring recovery based on the amount of damage to the plaintiff because "this almost wholly obliterates the distinction between gain to the defendant and loss to the plaintiff, a distinction which is fundamental in the law of restitution."
154. G. Palmer, Law of Restitution Id. at 140 (1978). (No one has suggested that the ship captain in Vincent, as in traditional restitution cases, ought to give up his gain - presumably the full value of his ship.) Palmer concludes "An unjust enrichment theory that produces the same recovery solves no problems; it only creates problemsto no good purpose."
155. G. Palmer, Law of Restitution Id. 140 (1978).
156. Professor Dobbs also expressed Palmer's concern about the use of traditional unjust enrichment thinking here - not wanting the result in Vincent to depend on the ship being saved. See D. Dobbs, supra note 106, at 126. I note also that Vincent was not even cited when Professor Dobbs published his treatise on restitution.
157. See D. Dobbs, Handbook on the Law of Remedies: Damages - Equity - Restitution (1973).
158. Williams, The Defence of Necessity, 6 Curr. Legal Probs. 216 (1953).
159. Williams, The Defence of Necessity, 6 Curr. Legal Probs. Id. at 224 (1953).
160. Williams, The Defence of Necessity, 6 Curr. Legal Probs. Id. at 227 (1953).
161. Cohen, The Development of the Modern Doctrine of Necessity, 4 Rechtshistorisches 215 (1985).
162. Model Penal Code Section 3.02.
163. Model Penal Code Section 2.09.
164. Restatement of Torts (Second) Section 73 (1965).
165. Broeder, supra note 57, at 242-43.
166. See Hall and Wigmore, Compensation for Property Destroyed to Stop the Spread of a Conflagration, 1 Ill. L. Rev. 501 (1907).
167. Hall and Wigmore, Compensation for Property Destroyed to Stop the Spread of a Conflagration, 1 Ill. L. Rev. Id. at 236-38 (1907). This is based on the famous case of Laidlaw v. Sage, 158 N.Y. 73, 52 N.B. 679 (1899).
168. This is based on the famous criminal law cases of Regina v. Dudley, [1884], 14 Q.B.D. 273, 15 Cox. C.C. 273, and U.S. v. Holmes, Fed. Cas. No. 15, 383 (Cir. Ct. E.D. Pa. 1842).
169. This like-for-like notion perhaps also explains decisions in which defendants are held liable for damages caused by directing flood waters off their property onto that of a neighbor. See e.g., the leading English case of Whalley v. Lancashire & York R. Co.,[1884] 13 Q.B.D. 131, and those cited by Prosser and Keeton in their Torts treatise, supra note 37, at 48 n.29.
170. That this is the Restatement's analysis is shown by the fact that the victims in these Section 73 cases have the privilege to resist the effort to do them in, something not available to the dock owner in Vincent.
171. M. Franklin and R. Rabin, Tort Law and Alternatives (7th ed. 2001) at 927.
172. Restatement of Torts (Second) Second 73 (1965) illustration 4.
173. Williams, supra note 130, at 231.
174. Williams points out that, unlike Vincent, under English law the plaintiff "cannot sue the doer in tort" Id. Further, Williams says, English law as well denies recovery in quasi contract (i.e., for unjust enrichment); but that is a result he thinks should be changed. Id. I will later discuss the English cases,
175. J. Fleming, The Law of Torts (9th ed. 1998) at 102-109.
176. J. Fleming, The Law of Torts (9th ed. 1998) Id. at 106.
177. 12 Co. Rep. 63,
178. 77 Eng. Reports 1341 (1608).
179. As Bohlen well recognized.
180. The Restatement of Torts (Second) so treats it. See references to Section 196. Just why this isn't seen as a Section 197 case, however, in which defendant was aiding himself and/or a third party and for which he has but an incomplete privilege, is not made clear. And on another front, Fleming suggests that perhaps the admiralty principle of "general average" did not apply in Mouse's case because the case occurred, not at sea, but on a river. Fleming, supra note 146, at 104.
181. [1870] L.R. 5 Ex. 204.
182. [1912] l K.B. 496.
183. The only seriously contested issue seemed to be whether or not actual necessity or apparent necessity was required.
184. [1912] 1 K.B. at 507. Could it matter that the game keeper and not the master was sued? I doubt it, but this is not at all discussed in the opinions.
185. Esso Petroleum Co. V. Southport Corp., [1953] 2 All E.R. 1204 (Q.B.), 3 WLR 773.
186. [1956] A.C. 218, [1955] 3 All E.R. 864, [1955] 2 W.L.R. 81.For the intermediate opinion in the Court of Appeal which found the ship captain negligent for getting the ship into danger, see [1954] 2 Q.B.D. 182.
187. See text at note 187, infra.
188. [1971] 2 WLR 467.
189. So far as I can tell the authority, at least in this action, did not actually sue for the rent to which the opinion seems to imply it would be entitled. Were it not so entitled, then the upshot would be that the Williams would have been allowed free use of the flat because of their plight; that is, notwithstanding the language of the opinion, their defense of necessity would have been valid after all, at least up until the time they were evicted.
190. 2 W.L.R. at 473.
191. 2 W.L.R. at 474.
192. 162. 2 W.L.R. at 474-75.
193. This discussion also helps to explain the inaptness of the analogy drawn by the Vincent majority to the "starving man" who, they say, "theologians hold ... may, without moral guilt, take what is necessary to sustain life." But, as the majority sees it, that person has an obligation "to pay the value of the property so taken when he became able to do so." 124 N.W. at 222. Even if the majority in Vincent is right about the duty of compensation, at least in some situations, one reason could be that when there are places available that provide food, it may actually be morally wrong for a starving man just to take food from a stranger. And even if food is not otherwise available when it should be, one may be legitimately concerned that the stranger who is picked out and forced to help may be arbitrarily selected (and indeed thereby subject to being unfairly selected over and over again); that is, he may by no means be a person who, say, by natural circumstances becomes positioned to be the proper rescuer in this instance, and rather is called upon to be an involuntary rescuer where he is thought to have no moral duty to be one. On the other hand, where he does, then I am by no means convinced that the starving man owes a duty of compensation. This difference is perhaps illustrated by the difference between the Southwark case and Depue v. Plateau, discussed earlier, where the person took ill at his hosts' home and needed shelter for the night. For the views of St. Thomas Aquinas, who appears to have believed that private property becomes common property when needed by the starving man in situations of necessity, see infra text at footnote 314.
194. [1985] 2 All E.R. 985 (Q.B.D.)
195. The fire was larger and spread faster than the police might have anticipated (apparently because the psychopath had spread flammable powder on the floor while rummaging around in the shop); but the opinion does not let the defense off on this basis.
196. The necessity finding turns out to be dicta because the defendant was found to have been negligent in the way he prepared for the fire risk that he knew the gas could cause. Ironically, the fire service was then on strike and would not come out to await being needed at the scene. So instead the chief constable called out an army pumper which arrived and was available for some time. But later on, during the siege, it was called away to fight another fire and hence was absent when the gas was eventually used. Justice Taylor didn't really say it was negligent not to wait to use the gas until the pumper returned, because the police had pretty strong reasons to give up hope of a peaceful surrender and to act promptly when they did. But fault was found in allowing the army pumper to leave and failing to take steps then - presumably to call in a replacement, although just where it would come from if the army pumper was needed elsewhere is unclear.
197. This suggests that although the English judges are firm, in principle, in their support for the necessity defense, some may also be quick to find negligence in those settings. Recall the Court of Appeal decision in Esso, supra note 155, and the holding in Romney Marsh, supra note 151.
198. Fleming, supra note 146, at 104-07.
199. rd ed. 1970) at 485, Atiyah says about Vincent, although he makes nothing more of it, that "the defendant was requested to remove his ship." I can find no evidence of this.
200. rd ed. 1970) Id 485.
201. rd ed. 1970) Id. at 485.
202. Dobbs, supra note 37, at 146.
203. P. Atiyah, supra note 168, at 488.
204. [1951] A.C. 850.
205. Other English treatises, casebooks and articles I have examined and that address the necessity question add little more to the picture.
206. Salmond and Heuston state "The precise limits of the defence [of necessity] are not clear...The defence, if it exists, enables a defendant to escape liability... "citing Cope v. Sharpe; and "The obligation to pay compensation for any damage done is uncertain." Salmond and Heuston, Law of Torts (5th ed. 1981 by R.F.V. Heuston and R.S. Chambers) at 463-64.
207. Harry Street's treatise continues in this vein: "There is no English authority...that the privilege is incomplete in the sense that he must compensate the plaintiff for the actual loss sustained...." Street on Torts (7th ed. 1983) at 74 n. 12.
208. Tony Weir's torts casebook says, disapprovingly, English law leaves the loss on the plaintiff unless the defendant's act was wrongful. He favors what he says is the French solution - that the defendant must pay because he enriched himself (by reducing his loss) as the plaintiff's expense. T. Weir, A Casebook on Tort (5th ed. 1983) at 271.
209. Winfield and Jolowicz offer a more extended discussion of English law. Winfield and Jolowicz, Tort (12th ed. 1984 by W.V.H. Rogers).
210. After Cope v. Sharpe is described, they discuss the possibly analogous situation in the famous case of Scott v. Shepherd, [1773] 2 W. Bl. 892, where a firecracker was tossed into a crowd, tossed around like a hot potato and eventually exploded injuring the plaintiff. Two judges said in dicta that those persons who passed the firecracker on would not be liable because they acted "under a compulsive necessity for their own safety and preservation." Id. at 900. Winfield and Jolowicz first wonder if those passing on the squib really did act reasonably notwithstanding the need for immediate action. But, then turning to the heart of the matter, they suggest an approach that would seemingly make that issue irrelevant.
211. Admitting that "It is clear that no damages can be claimed in tort where the defendant's act is justified by necessity", they go on "but that does not settle the question whether the defendant is liable to make restitution ..." Winfield and Jolowicz at 725. And while it is true, they say, that "there is no English decision on point" (Winfield and Jolowicz at 726 n.86.) they add "it is suggested that bare restitution or compensation for the use or consumption of property might be claimed on quasi-contractual grounds: e.g., using a neighbour's fire extinguisher to put out a fire in one's own house." Winfield and Jolowicz at 726.
212. This, of course, offers no new reasons in support of Vincent. As I explained earlier in my discussion of Professor Friedmann's article, although I agree that the fire extinguisher example is analogous to Vincent, it is hardly a novel example, merely echoing the cable-taking example given in Vincent itself. To repeat, however, what needs arguing is why the fire extinguisher and cable should not simply be seen as the defendant's freely to use in the circumstances. Moreover, as it stands, the Scott v. Shepherd dicta is further support for the anti-Vincent position.
213. In two short entries in the Modern Law Review, Professor F. H. Newark takes an aggressively pro-Vincent position. He argues that direct authority for a contrary position in English law is negligible. (I leave it to the reader to decide whether this is a fair reading of the cases I have described.) Thus, seeing the question as open, Newark says in the first of these pieces: "On principle it would seem that [necessity] ought not be countenanced in civil proceedings.... We may approve an act done ... but there is no more justice in charging up to a stranger the cost of saving your life than there is in requiring him to foot the bill for your daily keep." Newark, Note, Trespass or Nuisance or Negligence, 17 Mod. L. Rev. 579, 580-81 (1954). This analogy misses the point that those called upon to help in the Vincent-type situation aren't just any strangers; and they are hardly being asked to take over responsibility for the regular maintenance of the person in need of rescue.
214. Later, in a book review, Professor Newark says "Another heresy is that the common law recognises a defence of necessity in the case of an intentional tort" (Newark reviewing the first edition of Street's Law of Torts in 19 Mod. L. Rev. 319 (1956)) and goes on to give the example of the would-be murder and the broken china that I have previously discussed. See Friedmann, supra note 107.
215. Manor & Co. Ltd. v. M.V. "Sir John Crosbie", [1966] 52 D.L.R. (2d) 48.
216. Perhaps Dean Cecil A. Wright from the University of Toronto or a member of his faculty - according to Professor Sussmann, infra note 181.
217. Munn & Co. Ltd. v. M.V. "Sir John Crosbie", [1967] 1 Ex C.R. 94, at 100.
218. Id.
219. Id. at 99.
220. In his Canadian torts treatise, Professor (now Justice) Allen Linden says "when damage is caused by someone acting under private necessity, there is a conflict of authority." A. Linden, Canadian Tort Law (5th ed. 1993) at 80. On the one hand, he says, there is the English view exemplified by Romney Marsh case providing a complete privilege and on the other there is the Vincent case reflecting Bohlen's incomplete privilege analysis about which Linden says: "This approach is preferable, for although private interests must yield to the greater public good, there is no reason why they must be sacrificed to other private interests without requiring the beneficiaries to pay for the benefits derived." Id. at 75.
221. nd ed. 1996) at 120-24.
222. Sussmann, The Defence of Private Necessity and the Problem of Compensation, 2 Ottawa L. R. 184 (1967).
223. Sussmann, The Defence of Private Necessity and the Problem of Compensation, 2 Ottawa L. R. Id. at 190 (1967).
224. Id. at 190 n. 34.
225. See text at note 187 infra.
226. Sussmann supra note 181, at 192.
227. He does offer some interesting tidbits, however. First, he points out that from the facts found below in the "Sir John Crosbie" case, perhaps the dock would have been equally damaged had the ship been cut loose; if so, the plaintiff ought not be entitled to recovery even if Vincent were followed, his dock being doomed by the hurricane in any event. Id. at 193.
228. Second, he points out that the captain in the Canadian case was unloading coal for the plaintiff at plaintiff's dock, whereas in Vincent the ship had finished its business - thus making the defendant more clearly an invitee at the time of the storm in "Sir John Crosbie." Id.
229. don't see why this should matter, however, as it is generally conceded that even a complete stranger ship that puts in at the plaintiff's dock has the right to be there if necessary to save the ship in a storm; the issue in both situations is which innocent party should bear the loss. Finally, Sussmann tells us that French law and the law of Quebec would hold defendant liable in the Vincent case on an unjust enrichment theory " but without giving us new arguments for that outcome. Id. at 193 n. 46 .
230. Christie, The Defense of Necessity Considered from the Legal and Moral Points of View, 48 Duke L. J. 975 (1999).
231. Christie, The Defense of Necessity Considered from the Legal and Moral Points of View, 48 Duke L. J. Id. at 995 (1999) .
232. Southport Corp. v. Esso Petroleum Co., [1953] 2 All E.R. 1204, 1209-10. It will be recalled that in the Esso case Devlin found the defense of necessity applicable and constituting, in Bohlen's terms, a complete privilege, where the lives of its crew were saved by the discharge of the oil by the defendant.
233. Bohlen supra note 11, at 313.
234. Illustration 13 to comment j of Section 197 of the Restatement of Torts (Second) (1965).
235. Esso, supra note 189, at 1209.
236. Christie, supra note 187, at 999-1010.
237. By contrast, and consistent with his other views, Judge Keeton seems to believe that, even though lives were saved, Esso was wrongly decided when he asserts that "most persons" would think Esso blameworthy for not compensating the plaintiff. See Keeton, supra note 38, at 425.
238. Recall Latta, supra note 26, where the court was reluctant to compare property values.
239. Professor Bohlen wasn't too worried about the problem of comparing property values to see which was properly saved. He, of course, didn't seek to make this distinction for purposes of freeing from liability the one who has a privilege to destroy less valuable property to save more valuable property. Rather, the question for Bohlen arose in the context of considering when the party whose property was being threatened by the self-rescuer could properly resist. See Bohlen, supra note 11, at 323. For the Restatement's provisions on this issue, see especially Sections 77 and 78.
240. In Section 73 of the Restatement of Torts (Second), by way of a caveat, the Restatement takes no position on the case in which A, in order to avoid "disproportionately greater" harm (like death) inflicts "comparatively slight" bodily injury on the plaintiff. The purpose of the Restatement here is to distinguish this situation from that in which the defendant imposes serious bodily harm - like taking a life to save his life. What I find odd (albeit encouraging) is that the Restatement would even entertain the possibility in Section 73 that, where the harm is relatively less, and hence one might say the "lesser of evils" test is met, then there might be no liability. For recall that in Section 197 it is envisioned that, notwithstanding his satisfying the "lesser of evils" test, the defendant would be liable for property damage even if his life depended upon it.
241. V. Schwartz, K. Kelly and D. Partlett, Presser, Wade and Schwartz's Torts: Cases and Materials (11th edition 2005) at 124.
242. 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.
243. See also Section 76 of the Restatement of Torts (Second) (1965) which provides for a complete privilege for one who reasonably comes to the aid of a stranger who appears to be in need - even where he makes a mistake and injures an innocent person.
244. See Section 75 Restatement of Torts (Second) (1965). The leading case here is Morris v. Platt, 32 Conn. 75 (1864).
245. See Sections 75, 83 and 137 of the Restatement of Torts (Second) (1965) for parallel provisions involving the non-negligent harm to third parties in the course of self-defense, the defense of possession of property and the making of arrests. See also the Restatement's similar position on the mistaken but reasonable detentions of shoplifters as not constituting false imprisonment. Section 120A, Restatement of Torts (Second) (1965).
246. See also, Section 77 of the Restatement of Torts (Second) (1965) which denies the right of parties like the dock owner in Vincent to resist the privileged self help efforts of parties like the ship owner. So far so good.
247. But this section additionally imposes strict liability on the property owner who makes a reasonable mistake, believing the one who enters is not privileged to do so. On the one hand, this provision can be used as evidence to show that in this situation the defense of property is less protected than is defense of the person. On the other hand, since it puts those exercising private necessity privileges in a stronger position when they are mistakenly injured than are innocent bystanders when they are so injured, it casts further doubt on why, in turn, strict liability should apply in the first place to someone like the ship captain in private necessity settings.
248. Again, however, in using causal language to assign responsibility, I imagine that many would say that the real cause of the plaintiffs misfortune was the wrongdoing of the third parties who were attacking the defendant.
249. Epstein, supra note 96, at 158-60. In his analysis of Vincent, Professor Bohlen made clear that he was not expressing any opinion on these self-defense rules which, in his terms, provide complete privileges to harm innocent plaintiffs. See Bohlen, supra note 11, at 324.
250. Restatement of Torts (Second) Section 74 (1965).
251. Id. at comment a, illustration 1. Compare the Restatement's treatment in the trespass to land area in Sections 164, 165, and 166.
252. The Restaters seem to think that when "reasonable belief" itself generates a privilege to impose harm, this properly yields different results than when innocent mistakes do not. For a parallel treatment see Section 164 of the Restatement of Torts (Second) (1965) which provides that intentional entry onto another's land constitutes a trespass even if you reasonably but mistakenly believe that the land is yours; on the other hand if you enter in the reasonable but mistaken belief that you are needed to prevent a murder, this is not a trespass because that belief itself is said to give you a privilege to enter. See also section 244 involving trespasses to chattels in which reasonable mistakes do not permit the defendant to escape liability unless it is an instance in which reasonable belief itself provides the privilege to trespass. But, not only is this sort of distinction inadequate to explain all the seeming inconsistencies in the self-defense area, it is in the end merely a formalistic solution that by itself does not explain why some reasonable conduct is given this extra protection and some isn't.
253. For my discussion (and rejection) of the idea that something about the intentional nature of the defendant's conduct might matter, see text following note 207, infra.
254. One can think about the hypothetical of the driver who threw his passenger to the wolves (discussed earlier) in terms of self-defense against forces of nature. To reconcile the Restatement's position on the wolf case (favoring liability) and in the mistaken self-defense case (opposing liability) requires, I believe, that one accept that sleigh driver's conduct was wrong, even though the child would have been eaten anyway. Then one can say that, although in both cases the defendants take innocent lives for their own benefit, whereas the self-defending sleigh driver is presumed to know that what he was doing was wrong, the mistaken self-defender reasonably thought he was doing something he had a right to do. This perspective, of course, reinforces the similarity between Vincent and the mistaken self-defender.
255. See Atiyah, supra note 168, and Epstein, supra note 96, at 159-60. Professor Bohlen, too, seemed to be of this view. See Bohlen, supra note 11, at 308, n.3.
256. Keeton supra note 38, at 415-18.
257. Freidmann supra note 107, at 531.
258. Nor it is helped for Friedmann to admit that the line between certain harm and the high probability of harm is a fine one. Id. at 531 n. 137.
259. Presser and Keeton, Torts (5th ed. 1984) at 148. A case raising this problem and favoring the no liability principle is Phillips v. Pickwick Stages, Northern Division, Inc. 85 Cal. App. 571, 259 P. 968 (1927); but there, in the end, the defendant bus driver was found to have acted negligently.
260. Indeed, they earlier seemed to endorse the Vincent-based Restatement position to the contrary, which favors strict liability even in cases of emergency actions on behalf of third parties. Id. at 147.
261. nd ed. 2000) at 519.
262. 27 N.Y.S. 2d 198 (N.Y. City Ct. 1941).
263. Professor Morris, it will be recalled, tried to reconcile the cases by his "cooperation" argument, which applies in Vincent but not in Cordas. See Morris, supra note 52.
264. Shapo, supra note 214, at 519.
265. Restatement of Torts (Second) Section 158 (1965).
266. Restatement of Torts (Second) Sections 163 and 164 (1965). Section 164 does provide, however, that in the special circumstances where your mistaken belief gives you a privilege to enter it is not a trespass- e.g., where you enter in the reasonable belief that someone is about to be murdered on the property.
267. Restatement of Torts (Second) Section 165 (1965).
268. Restatement of Torts (Second) Section 166 (1965).
269. Moreover, for a now familiar example that shows the lack of consistency of the Restatement on this matter of intention, recall that the Restatement allows those who intentionally harm innocent people in self-defense to escape liability when the injurer reasonably mistakes the innocent victim for an attacker. See Section 63 of the Restatement and text at note 198, supra.
270. [1870] L.R. 5 Ex. 204.
271. [1953] 2 All E.R. 1204 (Q.B.).
272. [1985] 2 All E.R. 985 (Q.B.).
273. [1912] 1 K.B. 496.
274. Section 263 of the Restatement of Torts (Second) (1965) comment e, illustrations 2 and 3. This section was also discussed by Professor Broeder, see Broeder, supra note 57, at 239. Broeder's purpose, however, is to demonstrate the difficult problem of deciding, as one must under the Restatement's approach, whether something is a public necessity or a private one. Hence, Broeder wonders, what distinguishes a doctor who takes the medicine for his patient (which the Restatement calls a case of a private necessity of a third party) from a policeman who takes the medicine for a whole group of desperately needy patients (which, presumably, would be a public necessity case). Admitting this difficulty with the Restatement's approach, I frankly don't know quite what to do with Broeder's analysis here. Under his best risk bearer criterion, at least where the medicine was taken by the desperately ill individual, the pharmacist, not the patient, should bear the loss. But that is clearly not Broeder's preference, although he never really says why other than to make the parallel to the equally undefended Vincent result.
275. One might, alternatively, argue that there should not be patient liability here. But for now at least, I am going to accept that the Restatement's view of this example is right, and that whereas perhaps the pharmacist should lose his professional license, the patient should pay for the medicine.
276. As part of the discussion of Vincent in his casebook, Professor Marshall Shapo puts forward a complicated hypothetical about a former medical corpsman who takes blood from a hospital in order to administer it to his friend who has been injured in a mass accident and is lying on a stretcher outside the emergency room because the accident has overtaxed the hospital staff who are attending those it initially judged to be in greater need. See Shapo, supra note 214 at 520-21. This, it seems to me, is a variation on the examples put forward in Section 263. And, as Shapo doesn't provide an analysis of his hypothetical, I hope I will be forgiven for centering my discussion here on the Restatement examples instead.
277. See Bohlen, supra note 11.
278. Returning to the pharmacist case, while it is true that the pharmacist is also subject to natural disaster risks like fire, and while it is also true that one could term the illness to the patient a natural disaster, that characterization just doesn't feel right to me. This is because, as I indicated above, the pharmacist's entire business, unlike the dock owner's, centers on such disasters.
279. Now we are perhaps closer to Professor Shapo's hypothetical, supra note 228, although in his (as in one of the Restatement's examples) the friend, rather than the patient, took the needed blood. Shapo's is made even more complicated, however, by the possible critical need for the blood by the others in the emergency room.
280. See Posner, supra note 79. And note too how this fits the position I took in my discussion of the example in the Newark article of the person who takes a taxi ride to escape a would-be murderer. See note 127 supra.
281. This is based upon Depue v. Flatau, 100 Minn. 299, 111 N.W. 1 (1907).
282. Smith, Restitution: The Heart of Corrective Justice, 79 Texas L. Rev. 2115 (2001).
283. E. J. Weinrib, The Idea of Private Law (1995).
284. But see Weinrib, The Idea of Private Law id. at 197-198 (1995).
285. Smith, supra note 234, at 2134.
286. Id. at 2140.
287. Id. at 2149.
288. Arguably, this is a variation on the 1648 English case of Gilbert v. Stone, discussed by Holmes. See Holmes, supra note 8.
289. Restatement of Restitution and Unjust Enrichment, Tentative Draft No. 4, April 8, 2005.
290. Klimchuk, Necessity and Restitution, 7 Legal Theory 59 (2001).
291. Klimchuk does not oppose the result in Vincent, however, terming it a "plainly fair outcome." Klimchuk, Necessity and Restitution, 7 Legal Theory Id. at 81 (2001). Rather, for him, the explanation must lie in the law or torts (or perhaps the law of property).
292. For yet another argument that compensation is due in Vincent under the law of restitution, see, Finan and Ritson, Tortious Necessity: The Privileged Defense, 26 Akron L. Rev. 1 (1992).
293. Like Keeton and others, they appeal to "most people's sense of justice." Finan and Ritson, Tortious Necessity: The Privileged Defense, 26 Akron L. Rev. Id. at 4 (1992).
294. Restatement of Restitution and Unjust Enrichment, Tentative Draft No. 2, April 1, 2002.
295. Id. at Section 20, comment b and Reporter's Note b to Section 20. I read Section 21 to this same effect, although the sharp distinction between professional and non-professional assistance does not appear in the black letter. Id.
296. See generally, G. Calabresi, Cost of Accidents (1970) (passim).
297. W. Blum and H. Kalven, Public Law Perspectives on a Private Law Problem - Auto Compensation Plans 58-59 (1965).
298. Calabresi, supra note 247, at 162.
299. Id. at 163.
300. Id. at 164.
301. Id.
302. I don't mean by this description to endorse the notion that victims, who already have their own bodily security to worry about, are importantly influenced in the self-care they take by financial incentives created by private law mechanisms.
303. Calabresi, supra note 247, at 169 n. 28.
304. Note, however, that in discussing the uncertainty that surrounds the application of Calabresi's approach to actual cases, Professor Latin has said "the dock owner would surely have argued that the captain was the better risk-avoidance decision maker and cheaper cost avoider." Latin, supra note 77, at 709 n. 141.
305. Latin, supra note 77, at 705-10.
306. Id. at 707.
307. Id., at 708.
308. See Latin, text at note 103 supra. Interestingly enough, when it comes to the Vincent court's analogy to the case of the ship captain taking someone's cable lying on the dock in order to secure the ship to the dock, Latin seems to shy away from his theory, and seeks to distinguish Vincent on the ground that the captain was "restoring the status quo that existed before the emergency arose. The boat was moored to the dock when the storm became forseeable, and it was still moored to the dock in the same position after the captain's deliberate actions" Latin, supra note 77, at 707, n. 132. I frankly don't see the force of this point, or even of the attempted distinction. Just as the dock is now damaged, so too it could well be said that when the storm clears and the now damaged and no longer needed cable is left on the dock, the captain, on his side, merely restored the status quo. In short, it seems to me that the theory that Latin has presented should have the non-negligent cable-damaging case turn on the problem-solving nature of cable owners.
309. Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, 7 Philos, and Pub. Affairs 93, 102 (1978). Feinberg was not the first to advance this sort of example, which was used, for example, in the Model Penal Code, section 302, comment 1.
310. Id.
311. Id.
312. Feinberg also gives as examples war killings (presumably he means here those other than those strictly needed to save one's own life) and capital punishment. Id. Feinberg's point is that, assuming you agree that such killings are justified, you would not then argue for a duty of compensation.
313. Id.
314. Id. (Emphasis in original.)
315. Feinberg too does not report empirical research on this point.
316. I discuss noncommercial settings here because that is the situation in the hiker's case. For some relevant perspectives in the commercial setting, review my discussion of the case of the medicine taken from the pharmacist, text at note 227 supra.
317. Of course, this altruism has benefits to the donor, who might in turn seek to "borrow" an egg later on and in any case builds up a feeling of community with the one who asked.
318. While not suggesting that you have a moral duty to donate a kidney to a friend or relative who needs one to save his life, surely if you do make the donation you are unlikely to expect money in return. See also, A. Ripstein, Equality, Responsibility, and the Law 117-22 (1999) who treats the ship captain as having, in effect, temporarily borrowed the dock (as he might borrow a coat) and thus having a restitution-based obligation to return the dock (as he would the coat) in its original condition (or, what is the same, pay for the harm done while he had possession). That is an analogy, but the question remains as to whether it is the right analogy.
319. Thomson, Rights and Compensation, 14 Nous 3 (1980).
320. Thomson, Rights and Compensation, 14 Nous Id. at 14 (1980) .
321. Thomson, Rights and Compensation, 14 Nous Id. at 15 (1980) .
322. One wonders what Thomson would say about the non-negligent infliction of injuries through reasonable risk-taking generally. For example, did the cricket stadium owners "infringe" the rights of the passerby who was struck by the unusually well hit cricket ball in Bolton v. Stone? Or what of the mistaken self-defense example, or the injuring an innocent third party in self-defense? Or what about public necessity cases? In all these cases, as we have seen, the law traditionally does not impose liability. Does Thomson think the actor has a moral duty to compensate anyway?
323. Montague, Rights and Duties of Compensation, 13 Philos & Pub. Affairs 79 (1984).
324. Davis, Rights, Permission, and Compensation, 14 Philos, and Pub. Affairs 374, 381 (1985).
325. Davis, Rights, Permission, and Compensation, 14 Philos, and Pub. Affairs Id 374.
326. Davis, Rights, Permission, and Compensation, 14 Philos, and Pub. Affairs Id 374.
327. Davis, Rights, Permission, and Compensation, 14 Philos, and Pub. Affairs Id. at 382-83.
328. Montague, Davis and Westen on Rights and Compensation, 14 Philos, and Pub. Affairs 390, 394 n. 11 (1985).
329. Davis, supra note 275, at 383.
330. Montague (1), supra note 274.
331. Montague (2), supra note 279.
332. Davis, supra note 275, at 377. Thomson, as we saw, called the problem "cluttered."
333. See Thomson supra note 263.
334. See Montague (1), supra note 274. at 84 and 87.
335. One could go on. E.g., the careful dynamiter and the bomb terrorist make another parallel.
336. I will come to Westen's contribution shortly. Westen, Comment on Montague's "Rights and Duties of Compensation", 14 Philos, and Pub Affairs 385, (1985).
337. Indeed, after his second piece on this subject Montague now is wavering on the duty of compensation in the hiker's case. See Montague, supra note 279.
338. Westen, supra note 286, at 386-87.
339. Id. at 388.
340. Westen says that his analysis shows us how to conceptualize "legal relationships we deem to be normatively sound" without telling us "whether such relationships are indeed sound." Id. at 389.
341. See, e.g., Coleman, Corrective Justice and Wrongful Gain, 11 J. Legal. Stud. 421 (1982);
342. Coleman, The Morality of Strict Tort Liability, 18 Wm & Mary L. Rev. 259 (1976);
343. and Coleman, On the Moral Argument for the Fault System, 71 J. Philos. 473 (1974).
344. See Coleman, Corrective Justice, supra note 291, at 423-28.
345. Coleman, Corrective Justice Id at 423.
346. Coleman, Corrective Justice Id at 423.
347. Coleman, Corrective Justice Id 423.
348. Coleman, Corrective Justice Id 424.
349. Coleman, Corrective Justice Id. at 428 n. 16.
350. Coleman, Corrective Justice Id. at 436.
351. I rather imagine that my colleague Professor James Gordley, believes that Aristotelian thinking would favor liability in the Vincent case, as well as other proper cases for strict liability - whatever they are. See, e.g., Gordley, Tort Law in the Aristotelian Tradition, in Philosophical Foundations of Tort Law (D. Owen, ed. 1995) at 131.
352. J. Coleman, Risks and Wrongs: Philosophical Analysis (1992).
353. Perry, The Mixed Conception of Corrective Justice, 15 Harv. Jnl. Law & Pub. Pol. 917 (1992).
354. Perry, The Mixed Conception of Corrective Justice, 15 Harv. Jnl. Law & Pub. Pol. Id. at 937 (1992).
355. For another critique of Coleman that endorses the result in Vincent but rejects the application of Coleman's corrective justice, see Gauthier, Jules and the Tortist, 15 Harv. Jnl. Law & Pub. Pol. 683 (1992). There Professor David Gauthier invokes 'the principle that in benefiting from interaction no agent should worsen the situation of another.'
356. Gauthier, Jules and the Tortist, 15 Harv. Jnl. Law & Pub. Pol. Id. at 705 (1992). This, of course, is the Bohlen claim, which, as I have noted throughout, is dramatically more sweeping than those who invoke it seem to realize or address and would call for a widespread revision of tort law.
357. Finkelstein, Tort Law as a Comparative Institution: Reply to Perry, 15 Harv. Jnl. Law & Pub. Pol. 939 (1992).
358. See generally, Honore, Responsibility and Luck, 104 Law Quarterly Review 530 (1988), which explores the justifications for strict liability more generally.
359. Honore, Responsibility and Luck, 104 Law Quarterly Review Id. at 960 (1988).
360. Klepper, Torts of Necessity: A Moral Theory of Compensation, 9 Law and Philosophy 223 (1990).
361. Klepper, Torts of Necessity: A Moral Theory of Compensation, 9 Law and Philosophy Id. at 229 (1990).
362. Klepper, Torts of Necessity: A Moral Theory of Compensation, 9 Law and Philosophy Id. at 230 (1990).
363. Klepper, Torts of Necessity: A Moral Theory of Compensation, 9 Law and Philosophy Id. at 239 (1990).
364. Zimmerman, Rights, Compensation and Culpability, 13 Law and Philosophy 419 (1994),
365. Zimmerman, Rights, Compensation and Culpability, 13 Law and Philosophy Id. at 445 (1994).
366. Professor Montague is perhaps after this sort of idea when he says that "it might be desirable for A to compensate B, but this is not to suggest that he has a duty to do so." Montague (1), supra note 274, at 84.
367. Thomas Aquinas, Summa Theologica Part II-II, Question 66, Article 7.
368. See generally, Ames, Law and Morals, 22 Harv. L. Rev. 97 (1908)
369. and Weinrib, The Case for Duty to Rescue, 90 Yale L. J. 247 (1980).