Intentionally Inflicted Physical Harms

• Author: John Fabian Witt
• Pages: 44-88

CHAPTER 2. INTENTIONALLY INFLICTED PHYSICAL HARMS

The first chapter offered an introduction to tort law through the law of battery, the

paradigmatic intentional tort with respect to people’s bodies. Now we pursue the law of

intentional torts against property, including real property (which is to say, land and any

fixtures thereupon) and personal property (which is to say, everything else). The chapter

then takes up defenses to liability for intentional torts, both as to bodies and as to

property. Finally, we end the chapter with a brief look at the tort of assault, which

introduces the special problems arising out of very real but nonetheless intangible

emotional or psychological harms.

A. Trespass

1. Trespass to Land

Dougherty v. Stepp, 18 N.C. 371 (1835)

The only proof introduced by the plaintiff to establish an act of trespass, was, that

the defendant had entered on the unenclosed land of the plaintiff, with a surveyor and

chain carriers, and actually surveyed a part of it, claiming it as his own, but without

marking trees or cutting bushes. This, his Honor held not to be a trespass, and the jury

under his instructions, found a verdict for the defendant, and the plaintiff appealed. . . .

RUFFIN, C.J.

In the opinion of the Court, there is error in the instructions given to the jury. The

amount of damages may depend on the acts done on the land, and the extent of injury to

it therefrom. But it is an elementary principle, that every unauthorised, and therefore

unlawful entry, into the close of another, is a trespass. From every such entry against the

will of the possessor, the law infers some damage; if nothing more, the treading down the

grass or the herbage, or as here, the shrubbery. Had the locus in quo been under

cultivation or enclosed, there would have been no doubt of the plaintiff’s right to recover.

Now our Courts have for a long time past held that if there be no adverse possession, the

title makes the land the owner’s close. Making the survey and marking trees, or making

it without marking, differ only in the degree, and not in the nature of the injury. It is the

entry that constitutes the trespass. There is no statute, nor rule of reason, that will make a

wilful entry into the land of another, upon an unfounded claim of right, innocent, which

one, who sat up no title to the land, could not justify or excuse. On the contrary, the

pretended ownership aggravates the wrong. Let the judgment be reversed, and a new trial

granted.

Judgment Reversed.

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Notes

1. Special rules for real property? Why is there “no statute, nor rule of reason” that will

excuse trespass to real property under the common law? Recall that if Putney had kicked

Vosburg on a playground as opposed to in the classroom, he might not have been held

liable for the damages to the smaller boy’s leg. The circumstances mattered. Judge

Ruffin, by contrast, seems to say that in trespass to real property, circumstances are

irrelevant. Why would that be? Moreover, why does the law of trespass to real property

dispense with the requirement that the defendant’s act cause damages? To make out a

cause of action in battery, as we saw in chapter 1, the plaintiff must show that the

defendant’s act was harmful or offensive. Not so in trespass to real property.

One view is that an important function of the law of trespass to property, at least

in some cases, is determining who owns what. In early modern England, trespass actions

(often trumped up by the parties collusively) became a principal vehicle for settling

underlying disputes over who owned a particular piece of land. In such cases, damages

really were irrelevant and would merely have gotten in the way of the determination that

both parties desired. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW

OF TORTS 67-68 (5th ed. 1984). Another view holds that trespass actions developed

primarily to protect the owners of real property in a medieval feudal regime in which

rights in land were the foundation of the social structure; on this view, the absence of a

damages requirement reflected the special and privileged place of property in medieval

and early modern England. See STUART M. SPEISER ET AL., THE AMERICAN LAW OF

TORTS § 23:1, at 840 (2011). Which of these justifications, if either, is compelling in the

law today? Are there other possible rationales? What is the justification for treating

owners of land differently from plaintiffs in battery cases making claims for injuries to

their body?

2. Thomas Ruffin. Judge Thomas Ruffin (author of the opinion in Dougherty) served as

the Chief Justice of the North Carolina Supreme Court from 1833 to 1852, and on that

court generally from 1829 to 1852, and again from 1858 to 1859. He is best remembered

not for Dougherty, but for the terrible case of State v. Mann, in which he held that it was

not a crime for a master to kill one of his slaves. His opinion asserted no rule of reason in

the master-slave relationship, just as he rejected any such rule for trespass to real

property:

The power of the master must be absolute, to render the submission of the slave

perfect. I most freely confess my sense of the harshness of this proposition, I feel

it as deeply as any man can. And as a principle of moral right, every person in his

retirement must repudiate it. But in the actual condition of things, it must be so.

There is no remedy. This discipline belongs to the state of slavery. They cannot be

disunited, without abrogating at once the rights of the master, and absolving the

slave from his subjection. It constitutes the curse of slavery to both the bond and

free portions of our population. But it is inherent in the relation of master and

slave.

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State v. Mann, 13 N.C. 263, 266-67 (1829). Suffice it to say, American law did not allow

tort actions by a slave against the master. Injuries to slaves who had been hired out by

their owners produced a substantial body of tort law in the American South as a

subcategory of the law of slavery. The plaintiffs in such cases, of course, were the owners,

not the injured slaves. See THOMAS MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-

1860 (1996).

3. Intangible trespass. Traditionally, trespass actions were limited to physical intrusions.

In Michigan, for example, dust, noise, and vibrations crossing from the defendant’s

mining activities onto a plaintiff’s property do not constitute a trespass. See Adams v.

Cleveland-Cliffs Iron Co., 602 N.W.2d 215 (Mich. App. 1999). In other jurisdictions,

courts have allowed that such intangible crossings over a property line may produce

liability for trespass. But even in these jurisdictions, there is a significant difference

between intangible trespass and tangible trespass. The former only creates liability in tort

if accompanied by actual damages. To put it in Judge Ruffin’s terms, there is a rule of

reason for intangible trespasses, and that rule of reason provides that trespasses without

injury are not actionable as trespasses. (Many such cases raise questions in the doctrine of

nuisance, which we will turn to in chapter 9.)

Why place this additional requirement on actions for intangible trespass to real

property? In Colorado, in a trespass action brought for sound waves, radiation, and

electromagnetic fields from a public utility, the state Supreme Court held that intangible

trespass actions may succeed “only if an aggrieved party is able to prove physical

damage to the property.” The Court explained:

The requirement that the intangible intrusion be intentional, and that a plaintiff

prove physical damage caused by the intrusion, safeguards against the concern

that allowing trespass claims against intangible intrusions would produce too

much liability. [ ] Moreover, a property owner forced to prove damage will be

further limited to seeking redress in cases of serious or substantial invasions. The

difficulty in proving a connection between a minor damage and an intangible

intrusion is too great to support mass litigiousness on the part of pestered property

owners.

Public Service Co. of Colorado v. Van Wyck, 27 P.3d 377, 390 (Colo. 2001). What about

flashes of light communicated through buried fiber-optic cables? Should these be treated

as trespassing on the property in which the cables are buried? See In re WorldCom, Inc.,

546 F.3d 211, 217-18 (2d Cir. 2008) (Sotomayor, J.).

4. Aerial Trespass. English common law traditionally held that property rights extended

upward to the heavens. In William Blackstone’s words, “Land hath also, in its legal

signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus

est usque ad coelom, is the maxim of the law, upwards.” 2 WILLIAM BLACKSTONE,

COMMENTARIES *18. The development of the airplane, however, began a decades long