Torts Flashcards
Duty of reasonable care
Under modern tort principles, the farmer will owe a duty to others to exercise reasonable care. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7(a) (2010) (“An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.”). Breach of the duty of reasonable care (sometimes itself called “negligence”) requires a fact-sensitive inquiry; reasonableness is determined “under all the circumstances.” Id. § 3; see also 1 Dan B. Dobbs, Paul T. Hayden, and Ellen M. Bublick, The Law of Torts § 125 (2d ed. 2011) (“The duty or standard imposed in most cases is the duty of reasonable care under the circumstances, no more, no less. Equivalent shorthand terms are due care and ordinary care.”).
Finding of negligence
The fact that the health department permits the use of GS does not preclude a finding of negligence. Complying with statutes and regulations does not, on its own, imply that a defendant has acted safely, although it is one factor to consider. See Restatement (Third) of Torts § 16(a) (“An actor’s compliance with a pertinent statute, while evidence of nonnegligence, does not preclude a finding that the actor is negligent . . . for failing to adopt precautions in addition to those mandated by the statute.”); Restatement (Second) of Torts § 288C, cmt. a (1965) (“Where a statute, ordinance or regulation is found to define a standard of conduct for the purposes of negligence actions, . . . the standard defined is normally a minimum standard . . . [that] does not prevent a finding that a reasonable man would have taken additional precautions where the situation is such as to call for them.”).
Trespass
A trespass occurs when a person, or an entity that the person controls, enters or remains upon land in the possession of another without a privilege to do so. Restatement (Second) of Torts §§ 158, 329; Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 701 (Minn. 2012). Today, trespass is often categorized as an intentional tort. For the purposes of this tort, “intent” includes either purpose or knowledge: an unlawful entry thus may be shown based on either the “desire to bring about” such an entry or knowledge that an unlawful entry “is substantially certain to result.” Restatement (Third) of Torts § 1(b). See also Restatement (Second), supra. Any person with actual and exclusive possession of land (such as that conferred by a rental agreement) may bring a trespass action. Nominal damages are generally presumed, and a trespass additionally subjects the trespasser to liability for physical harm to the land or possessor. See Johnson, supra, at 704.
Entries above land
Entries above land, rather than on the ground, may still count as trespasses. Restatement (Second) of Torts § 159 (1965). But entry by gas is not normally sufficient for trespass.
The rule requiring tangible entry for a trespass remains sound today, and reflects ancient history reinforced by contemporary policy. Pollution, noise, gases, unpleasant sights, and dangerous conditions such as stored explosives can all reduce one’s enjoyment of land, but courts have been unwilling to say that a landowner would have a claim for damages any time she heard a noise or smelled burning leaves. The policy view is that the law of trespass with its automatic responsibility for any purposeful or certain entry would produce too much liability. It provides no mechanism for limiting liability to serious or substantial invasions. If smoke drifting onto the plaintiff’s land were held to be a trespass, even a little smoke would count. The law of nuisance is therefore better suited to such cases. Dobbs et al, supra § 53.
Invasion by intangible airborne particles
Courts have occasionally permitted trespass claims based on an invasion by intangible airborne particles. See, e.g., In re Tenn. Valley Auth. Ash Spill Litig., 805 F. Supp. 2d 468, 484 (E.D. Tenn. 2011) (finding that invasions of intangible particles in Tennessee are trespasses without a showing of actual or substantial harm). But by far most jurisdictions have denied trespass claims based on the entry of intangible forces like electricity or odors. See, e.g., Wendiger v. Forst Farms, Inc., 662 N.W.2d 546 (Minn. Ct. App. 2003) (odors from hog farm); Beal v. W. Farmers Elec. Coop., 228 P.3d 538 (Okla. Ct. Civ. App. 2010) (stray electricity); John Larkin, Inc. v. Marceau, 959 A.2d 551, 556 (Vt. 2008) (air particulates); Barnett v. Conn. Light & Power Co., 900 F. Supp. 2d 224, 245–46 (D. Conn. 2012) (electromagnetic fields). When jurisdictions have permitted trespass claims based on intangible or other nontraditional intrusions, they have generally treated the claims more like nuisance claims by “requir[ing] proof of damage to the invaded property.” Darney v. Dragon Products Co. LLC, 994 A.2d 804, 807 (Me. 2010). See also John Larkin, Inc., 959 A.2d at 554–55 (acknowledging modern trespass theory permitting claims for entry by intangible airborne particulates but dismissing trespass action due to the absence of physical impact interfering with exclusive possession). In such jurisdictions, the husband could conceivably establish that additional factor based on the evidence linking GS to his respiratory illness.
In the large majority of jurisdictions, however, the husband’s trespass claim will fail because he can show only the entry onto his land of GS, a gas.
Injunctive relief
If the husband succeeds in establishing an ongoing trespass, a court will apply a balancing test to determine whether he can obtain injunctive relief. See Restatement (Second) of Torts § 936. Traditionally, establishing an ongoing trespass or private nuisance entitled the plaintiff to injunctive relief automatically. However, courts now consider the impact on both parties and on the public before granting injunctive relief. Courts have denied injunctive relief when the defendant’s activity is valuable and granting injunctive relief would require the defendant to close down because the technology to avoid the harm inherent in the defendant’s activity is not available. See Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1970) (declining injunctive relief against emission of dust from cement factory due to lack of technology to produce cement without emitting dust). “Both before and after Boomer, courts have balked at granting injunctive relief in cases of extreme disparity.” Richard A. Epstein & Catherine M. Sharkey, Cases and Materials on Torts 618 (11th ed. 20).
