Necessity Flashcards
Explain what strict liability and necessity have in common with respect to the concept of “conditional fault.” How are strict liability and necessity different?
blamiworthiness-ouside culpability spectrum
similar to trespass but not volitional(volunt. act)
necessity involves prudent conduct of actor for the preservation of others. Should be treated as no fault rather than conditional fault. (do we not want people to act)?? pg. 391
necessitas non habet legem
necessity has no law
Necessity defense (private)
(1) the primary tort claim is trespass (to real or personal property), or conversion;
(2) the def. is acting intentionally to protect person or property from a threat of harm (not caused by the pl.);
(3) the threat of harm is
(a) imminent
AND
(b) serious;
AND
(4) def. acts upon reasonable necessity
.
Must def. still pay actual damages even if successful in defense?
yes, but only special compensatory(actual) and nonconsequential damages. def is priviledge from tort but not paying damages
Limits to defense
only applies when:
-def act is intentional, even though intent to protect property, not cause harm
-cases of trespass or conversion
(privilege of property owning pltfs)
two pronged threat of harm
imminent & serious (tested obj)
Public necessity Defense
- if acted in public interest then defense is) COMPLETE-no liability
def. may overlap w/excuse
(def. does not have to pay for damage)
act in public interest
to abate a threat of harm to the community as a whole, or to enough people to characterize the threat fairly as to the “public interes
excuse
a common law theory that also entails a choice of lesser evil and usually is a complete defense
necessity common in case law?
Necessity rarely occurs in case law in its pure form (as in Vincent), probably because situations of necessity often can be resolved on other grounds. Sometimes, rather than presenting as a central issue, necessity changes the character of a case in an important but collateral respect.
Rossi v. DelDuca, 344 Mass. 66 (1962),
a child trespassed on defendant’s property, where she was attacked by defendant’s two dogs. Ordinarily, the child, as a trespasser, would not be able to recover. However, the child ran onto the property because she was running away from another dog, of a third party. The child-plaintiff was permitted to argue that she trespassed on defendant’s property as a matter of private necessity, so could not be treated as a trespasser for purposes of child-plaintiff vs. defendant-landowner
-Importantly, in that case, the child was able to recover fully, for all damages, against the defendant. The private necessity doctrine was not a defense interposed by the defendant; rather, the doctrine was employed by the plaintiff to change her position in the case, nullifying her trespasser status. The defendant was then strictly liable by statute governing the keeping of dogs with propensity to bi
mass courts recognize?
MASSACHUSETTS courts have long recognized necessity doctrine, though cases are far and few between. In 1873, the SJC ordered a new trial for defendants to argue private necessity when they removed a boat from plaintiff’s shoreline–they said, to protect the boat from washing away in a storm. Jurors might well have concluded that the defendants were mere thieves. But their argument at least made out a viable theory of defense against liability for trespass and conversio n. Proctor v. Adams , 113 Mass. 376
does property protected need to belong to the def.?
NO.
Vincent v. Lake Erie Transport Co.
storm, dock, protecting boat
When a person prudently & advisely avails himself of the property of another for the purpose of protecting his own more valuable property, he is obligated to pay compensation for injury done.
-not negligent=cuz no fault. WAS good seamanship
-(almost tort-KWSC-but not enough proof)
Keeton-3 classes of conduct
1) blame (fault)
2) excusable blame (SL;conditional fault)(advance provision for compensation)
3) NO blame (no fault)
