Who pays for “necessary” harms?
(Outline, Sept. 11, 2007)
1. Necessity as a defense to trespass.
Ploof v. Putnam and Vincent v. Lake Erie: alternatives.
2. Vincent and Anti-Vincent
• Game theory mechanics: filling in grid; picking dominant square • What we learn from the game.
Torts 4: Necessity
1
Ploof v. Putnam
(This is actually the Cape of Good Hope, but you get the idea)
Torts 4: Necessity 2
Ploof v. Putnam (necessity as defense to trespass) Alternative rules: Boat should be able to dock when: a) Any danger to boat or passengers b) Serious danger to passengers c) Serious danger to the boat d) Danger to boat outweighs harm to dock owner e) Danger to the boat/passengers, and no danger to dock owner f) Boat pays the customary/reasonable fee g) Permission by the dock owner
Torts 4: Necessity 3
Ploof v. Putnam (necessity as defense to trespass) Alternative rules: Boat should be able to dock when: a) Any danger to boat or passengers b) Serious danger to passengers c) Serious danger to the boat d) Danger to boat outweighs harm to dock owner e) Danger to the boat/passengers, and no danger to dock owner f) Boat pays the customary/reasonable fee g) Permission by the dock owner
Torts 4: Necessity 4
The Reynolds
Torts 4: Necessity
5
Vincent and anti-Vincent Game
Constants: 1) Ploof: The dock owner is liable for harm to the boat, if dock owner doesn’t allow the boat to moor. 2) “State of nature”: If the boat owner doesn’t try to dock, and ends up experiencing harm, the boat owner absorbs it. Varying rules: “Vincent”: Boat owner is liable for any harm done the dock “Anti-Vincent”: No such liability.
Torts 4: Necessity 6
Vincent and Anti-Vincent Game
(a) H(boat) > H(dock): H(boat) = 10, H(dock) = 5
Vincent rule
Allow
b, d Dock
Anti-Vincent rule
Dock-owner
Allow
b, d Dock
Release
Release
Boat
Sea
Torts 4: Necessity
Sea
7
Vincent and Anti-Vincent Game
(a) H(boat) > H(dock): H(boat) = 10, H(dock) = 5
Vincent rule
Allow
b, d -5, 0
Anti-Vincent rule
Dock-owner
Allow
b, d
Release
Release
Dock
0, -10
Dock
Boat
Sea -10, 0
Torts 4: Necessity
Sea
8
Vincent and Anti-Vincent Game
(a) H(boat) > H(dock): H(boat) = 10, H(dock) = 5
Vincent rule
Allow
b, d -5, 0
Anti-Vincent rule
Dock-owner
Allow
b, d
Release
Release
Dock
0, -10
Dock
Boat
Sea -10, 0
Torts 4: Necessity
Sea
9
Vincent and Anti-Vincent Game
(a) H(boat) > H(dock): H(boat) = 10, H(dock) = 5
Vincent rule
Allow
b, d Dock
Anti-Vincent rule
Dock-owner
Allow
b, d Dock
Release
Release
Boat
Sea
Torts 4: Necessity
Sea
10
Vincent and Anti-Vincent Game
(a) H(boat) > H(dock): H(boat) = 10, H(dock) = 5
Vincent rule
Allow
b, d -5, 0
Anti-Vincent rule
Dock-owner
Allow
b, d 0, -5
Release
Release
Dock
0, -10
Dock
0, -10
Boat
Sea -10, 0
Torts 4: Necessity
Sea
-10, 0
11
Vincent and Anti-Vincent Game
(a) H(boat) > H(dock): H(boat) = 10, H(dock) = 5
Vincent rule
Allow
b, d -5, 0
Anti-Vincent rule
Dock-owner
Allow
b, d 0, -5
Release
Release
Dock
0, -10
Dock
0, -10
Boat
Sea -10, 0
Torts 4: Necessity
Sea
-10, 0
12
Vincent and Anti-Vincent Game
(b) H(boat) < H(dock): H(boat) = 5, H(dock) = 10
Vincent rule
Allow
b, d Dock
Anti-Vincent rule
Dock-owner
Allow
b, d Dock
Release
Release
Boat
Sea
Torts 4: Necessity
Sea
13
Vincent and Anti-Vincent Game
(b) H(boat) < H(dock): H(boat) = 5, H(dock) = 10
Vincent rule
Allow
b, d -10, 0
Anti-Vincent rule
Dock-owner
Allow
b, d 0, -10
Release
Release
Dock
0, -5
Dock
0, -5
Boat
Sea -5, 0
Torts 4: Necessity
Sea
-5, 0
14
Vincent and Anti-Vincent Game
(b) H(boat) < H(dock): H(boat) = 5, H(dock) = 10
Vincent rule
Allow
b, d -10, 0
Anti-Vincent rule
Dock-owner
Allow
b, d 0, -10
Release
Release
Dock
0, -5
Dock
0, -5
Boat
Sea -5, 0
Torts 4: Necessity
Sea
-5, 0
15
Intentional Torts: Black Letter Rules
(review)
• • • • •
Battery, generally: Level of intent required Intent, generally: Purpose or knowledge Mental illness and intentional torts. Self-defense and mistaken self-defense Necessity and trespass
a) Necessity as a defense to trespass b) Necessity as an imperfect privilege
Torts 4: Necessity 16
The Fault Continuum
Fault
Negligence Intentional Torts
Torts 4: Necessity
Non-fault
Strict liability
17