Thanks for joining this episode of the No. 86 lecture series, where we discuss basic principles and applications of Tort Law along with landmark cases. Today's episode features Gregory Dolin, who is a Professor of Law at the University of Baltimore, where he teaches Torts, Contracts, Property, Intellectual Property, Federal Courts, and Constitutional Law. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Is an emergency always a valid excuse for a tort? Are there certain factors that have to be considered for an emergency defense that aren’t normally required in a tort suit? Gregory Dolin: So emergency is one of the doctrines in tort law that provides for some amount of defense, but it's actually a much narrower doctrine than one would think. Emergency in and of itself is not a defense to, essentially any intentional tort. Necessity, which often is a result of an emergency might be. So, a classic case that I teach is called Ploof v Putnam. It's, it's also a fun case because of some sort of disparities between the parties. So Putnam is a scion of a very wealthy family, and whereas Ploofs are kind of this family of scavengers and they're generally disliked in the neighborhood, and they, and they have this sort of houseboat and kind of everybody who lives on this lake knows that, eh, you know, if you interact with Ploofs things might go missing. So nobody really likes them. And so they're on this houseboat and at, at one point a storm comes to the lake. And so they try to moor the boat onto Putnam's property. And one of Putnam's servants, knowing kind of Ploof's reputation, he keeps unmooring them. So they throw the rope onto the pylon and the servant keeps going, throwing it off the pylon, and eventually they fail to moor the boat and it gets destroyed in the storm. Luckily, like nobody actually dies, but they're injured. Their boat is done for as well. And Ploofs actually sues Putnam, and Putnam he looks at him like, are you crazy? It's my property. I don't want you there. Like I, you know, I didn't make the storm, I didn't force you to go out there. It kind of sounds like a you problem. And the court says, while you know, Putnam had no duty to help. Right? So if they, for example, couldn't move the boat themselves, he had, even if it was super easy for himself, he had absolutely no duty to help the Ploofs. But he also had a responsibility not to interfere with their attempt to save themselves, even though they were trying to do it at the cost of entering his property. Kind of this idea that when necessity exists, and this goes back to a very early question we talked about, is tort law about pure economics or is it about morality? The court says if we have to choose between inviolability of real property and saving lives of these people who may not be all that great people, but still, we're going to choose option B, right? We're going to choose saving someone. After that case, I teach another case, Vincent versus Lake Erie, basically, same story. But there's like not so much lives at stake, but there's a ship that's been moored to the port, to the dock in a, in a storm, and nobody's actually trying to unmoor. But after the storm passed it turns out that the ship was being held throughout the storm by the sailors, you know, tightly by, by the ropes. As it was kind of hitting the dock, it caused some amount of damage. And the question became, okay, well we started out with a working dock and working ship, and now we have a dock that's a bit, you know, working a bit less, right? It's a damaged dock. And the question is, who ought to pay for it? Nobody's actually saying that it was wrong to hold the ship there, but the question, you know, we, our societal wealth was here and now it's here, and the question is, who ought to pay for the difference? And the court says it's fine if because of necessity, you end up using somebody's property. But if you cause damage, you ought to pay because you are, after all, you are choosing to impose costs on somebody else. You think it's worth it? Whether you're saving life or you're saving your property, you think it's worth it? Well, if you think it's worth it, if you're getting the benefit out of it, then you ought to pay for it. So, and this, again, going back to that first question, that's where both morality and economics work in tandem. We make a moral judgment that yes, it's okay. Property interests potentially are outweighed by interest of saving lives, but in doing so, when it imposes something, so you got the benefit of saving the life, you should also bear the cost of it, right? And so that damage to the dock, that $50 damage to the dock, the ship had to pay. So necessity is one of the defenses. It's not a super broad defense and it doesn't necessarily free you from paying damages, but actual damage as opposed to merely damages for just entering somebody's property. PUBLIUS: Aside from necessity in an emergency, are there any other limits on someone’s right to defend private property? Gregory Dolin: Defense of property is actually fun to teach. And it also, again, relates to our conversations of what's more, what is really torts trying to accomplish? Is it a moral judgment or is it economic judgment? So, defense of property is fun to teach because on one hand, by that point, so this, this is sometimes we're in week three or four, and students kind of, they get a feel for, okay, well it's wrong to enter somebody else's property, wrong to do things. And so you should be able to, you know, defend and repel such attacks. And the question becomes about how much, right? And so I teach a couple of cases involving spring guns, where basically a property owner sets up a gun that's tied to a spring and a trespasser, or usually a robber, trips a spring when they're engaged in their own affairs, activities and get injured or killed or whatnot. And I teach two cases, one from the 1800’s and one from actually, late 20th century, very similar cases. The older case involves an innocent party; it's actually two businessmen kind of side by side. One raises tulips, which at the time was kind of, there’s a rage for tulips. Everybody wanted tulips and they were super expensive. The other one apparently raises peacocks on a neighboring plot of land. So these are people catering to some very wealthy members of society. And unfortunately, one of the peacocks gets away and goes like to the neighbor's neighboring plot of land. The peacock owner thinks like, oh he's gonna cause so much damage, tulips are insanely expensive. I will, I'm gonna go and I'm gonna retrieve the peacock as quickly as I can before I'm on the hook for all sorts of damages. And he goes there and he sets off the spring gun, which was installed because the tulip owner actually had been robbed previously and he wanted to make sure that doesn't happen again. Or if it does, the people will sort of pay the price. And so then the court says that this is an inappropriate way to defend one's property. The court at that time says it's cause it's un-Christian, you know, immoral, right? And so, and the students get like, okay, we get it. Because, you know, here's basically a good guy who is trying to protect his neighbor's property from his errant peacock. It kind of sounds terrible that he was so grievously injured by a gun, whereas the 20th century case, basically, again, same setup as a spring gun, et cetera. But the person who gets caught he's a thief. He keeps breaking into this barn and he steals some sort of bottles and he basically testifies, of course. He's like, yeah, I did it like twice before and I would do it again. Right? He's like, I don't really intend to stop. And so the property owners are like, well, you know, but if this is the way to stop you, right? So I set up a spring gun. And so students, I tried to get them to understand that it's, again, it's not so much about are you a good guy or a bad guy, it's that there are sort of standards. How law will allow you to defend your land and how would it not, right? So the 20th century case is Katko versus Briney, it's an Indiana case, and the court there says no; even if you are trying to catch a bottle thief, you still don't get to kill a person or grievously maim them to protect your bottles. And then there's a third case I teach where there's not a spring gun, there's an actual gun being discharged. And there's some sort of mini riot going on in, in the Wild West. This is like the 1840s, 1850s, I believe in Nevada. And the sheriff shows up, so all of this is happening in front of this person, in front of our defendant's home, there's his shop on the first floor. There's his house on the second floor. His sister is sleeping in the house, and there's this mob gathering around the sheriff and deputy show up. But the homeowner doesn't recognize the sheriff and so he discharges the gun into the crowd and injures the sheriff. And the court there says - they don't definitively resolve the case that it's ultimately a matter for the jury - but they say if it's reasonable to defend. Because now you're no longer defending just property, you're defending yourself and your sister if that's reasonable force, the fact that an innocent party, i.e. the sheriff who actually came to solve the problem got injured, it's unfortunate, but not compensable because the person was using reasonable amount of force. So we talk about defense of self and defense of others and how the amount of force you can use, depending on what exactly you're defending, may change. And also, this is a great case that I usually teach last in the whole section of intentional torts because that's when we start talking about the concept of reasonableness. So it becomes a very nice transition to negligence. PUBLIUS: So how does the concept of reasonableness factor into negligence cases? And how do courts determine causes and culpability in negligence cases? Gregory Dolin: I teach Palsgraf versus Long Island Railroad and that's a sort of a classic negligence case in trying to figure out, when an action, concededly inappropriate action, by a defendant is not merely, factual cause of the injury. Because in some sense everything causes everything else, right? When I start teaching proximate causation, that's what Palsgraf is. When I start teaching proximate causation, I always begin asking my students, If anybody in class has kids, and invariably somebody does, and usually they're young kids and I ask 'em, well, has your kid ever broken anything? And of course the answer is yes. And I say, well, have you ever broken anything of your friends? And you know, have they ever spilled something on your friend's carpet? And the answer is usually yes. And I said, well, didn't she know this when you were deciding to have children? That's what children tend to do?And after some hee's and haw's, like, well, kind of. And it’s like, well, weren't you then negligent in deciding to have children? You knew ahead of time that you're gonna have this child and at some point in their life they will do something bad. You may not know exactly what, so isn't it negligent to decide you have children? And obviously students rebel against that as they should and they, and but the setup is to say like, look, some actions are either so privileged or you know, have so many benefits of having children or, or they're just too far removed. So in some sense, factually you can draw a pretty clear causal chain. You decide to have children. You have a child. Child is growing up, spills something on your friend's carpet. It's a pretty clear causal chain, but, for legal purposes, we sometimes cut that liability off saying This happened too far ago. That is too attenuated. And that's really Palsgraf, so, and Palsgraf is a great case because lots of interesting things are happening factually in that case. It's also interesting kind of historically because Judge Cardozo, who writes that, then Judge Cardozo serving on the New York Court of Appeals, who writes that opinion, kind of ignores some facts to get to a decision that he wants to reach. And that's also fun to talk to students about, like, you know, sometimes judges do play around with the facts, they present the story in the way they wanna present the story, and you have to be sort of on a lookout for that. And it's also a fun case because something that is very similar to what happened in Palsgraf and, the whole kind of, setup there was that a person was being pulled on a moving train. He was running late for a train. He was pulled on a moving train and because the train was moving and he was moving, he dropped the packages he was holding, which the package had fireworks in it. They exploded and causing all sorts of commotion. And, but the, one of the reasons I also like teaching it, besides it being foundational, is because at that very station, I once got pushed off a moving train to help me get, like, get on the station because I kind of, nearly missed my stop. So I can always bring my story that clearly this 1800’s case taught Long Island Railroad absolutely nothing. And students do like kind of these personal stories because they can relate. So like this is not just 150 year old case. These are actually things that could happen today and do happen today. So that's kind of, that's one sort of classic case, that I teach. Like I already told you, I, I teach, you know, Vaughn versus Menlove, which is a, that exploding boiler case. One other case that I, I absolutely love to teach and I'm, I'm actually terrible with case names. I only remember 'em by fact. But when I also introduce negligence, I teach this case, also very simple case, an old case from 19th century England. Again, the basic story there, there is, there are two neighbors. One of 'em stacks hay. He is being told like, I don't think you're doing it right. And he's like, well, you know, this is how I do it. I'll chance it. And, but turns out if you stack hay improperly, it can start rotting on the inside, producing alcohol. And at the right temperature, alcohol basically, you know, heats up and starts and it starts a fire. Basically, it's self combustion, which is exactly what happened. Stacks catch fire. They damage neighbor's property. The neighbor sues the person who was stacking hay improperly and the person comes to court says, look, I did the best I could. This is the best I could. I couldn't do any better. You can't ask, you know, you can't ask me for more. And the court says, no, the standard is the same. You have to behave like a reasonable person. The reason I like teaching this case is because what I often make my students do, I, I tell 'em, explain this case to me in a layman's terms. And they still try to like, well, you know, negligence and this. I'm like, no “duty of care.” I'm like, no, no, no. Imagine that we're sitting at Thanksgiving table. We have both had a couple of beers. I don't know much law. We had some Turkey. I barely care, but like I'm sort of interested in what you're doing and tell that to me. What's the person's defense and finally, the person's defense is like, “I'm stupid and you can't make me do more.” And I keep referring to this throughout the semester saying, remember how “I'm stupid” is not a defense. You have to meet the standard of care of a reasonable person, whether you're smart or stupid. So they usually get a good laugh of it because it's sometimes it's much more fun to say, “I'm stupid” then, oh, I, you know, didn't meet the duty of care. But it's this kind of translation into layman's language that I think ultimately helps students remember the cases. Thank you for listening to this episode of the No. 86 Lecture series on Tort Law. 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