The "Necessity" Defense And The Failure Of Tort Theory: The Case Against Strict Liability For Damages Caused While Exercising Self-Help In An Emergency

Prologue In this quite lengthy and, no doubt for some, awkwardly structured, article, I take up what American tort law calls the " incomplete privilege " that arises when people are forced by circumstances of " necessity " to harm or consume the property of others. I focus on the much-written about case of Vincent v. Lake Erie Transportation Co. There a huge storm prevented a ship from leaving a dock where its cargo had just been unloaded. The captain reasonably had the crew secure the ship to the dock, and although the ship was saved, as a result of the storm the dock suffered some damage. In 1910, the Minnesota Supreme Court held the ship owner strictly liable for the damage done to the dock. In the Restatement of Torts, this problem came to be analyzed as one in which the ship captain is first understood to have had a privilege to remain at the dock, even if that otherwise would have been a trespass. But, unlike, say, the full privilege of self-defense, the privilege arising from " necessity " is said to be incomplete, creating an obligation of the ship owner to compensate the dock owner. This same principle, it has been widely argued, applies as well to a hiker who breaks into a cabin to save herself when trapped on a mountain in an unexpected storm. The hiker saves her life by eating some food and burning some wood she finds there. In such a case, while the hiker is understood to have a privilege to do what she did, it is generally asserted that she nonetheless owes a legal duty to compensate the cabin owner. Nearly all scholars who have written about this problem support the result in Vincent and the result of the Vincent principle applied to the cabin case. Moreover, almost all the many moral philosophers who have examined the necessity issue agree that there is a moral duty to pay for the food and wood and to pay for the harm to the dock. I am one of those very few who disagree. My position rests on these values. First, I believe that people should be under, and should feel themselves under, a moral obligation to help others in relatively easy rescue situations (which I consider these to be). In the society in which I would like to live, ordinary people would readily …