06 August 2013

Bar Prep: Torts #1

This is one in a series of posts designed to give you some insight into the questions that one might see on the bar exam, and how one might go about answering them. For similar posts, click here.

QUESTION: StarWalkers is under contract with the government to build a missile defense system. Suppose that StarWalkers tests their prototype on a deserted stretch of desert in Nevada. They fire up the satellite rocket system and huge clouds of smoke and particles are generated as the thing struggles to take off. These deposits are broadcast all over the O.B.Juan Ranch located several acres west of StarWalkers testing property. Additionally, the satellite rocket vibrates at a frequency that results in the collapse of Juan's exquisite wine cellar carved into the sandstone under his house. Two million dollars in vintage wine is destroyed. Assume that Juan files for trespass against StarWalkers. Which answer would be most helpful to StarWalkers in avoiding liability?

A. Juan bought the ranch knowing that StarWalkers often used their property for testing such as this.

B. Neither StarWalkers, nor its employees, ever set foot on Juan's property.

C. StarWalkers had no reason to believe that the testing would result in these problems.

D. StarWalkers' development of a rocket defense to destroy incoming aliens is a matter of national security and they are protected as privileged.
ANSWER: C. Trespass requires intent. If StarWalkers had no reason to believe that its tests would result in this type of damage, then they lack the requisite intent. By definition, a prima facia case for trespass to land consists of: 1) an act of physical invasion of the plaintiff's real property by the defendant; 2) intent on the defendant's part to bring about a physical invasion of the plaintiffs real property; and 3) causation. StarWalkers' testing did result in debris falling on Juan's property, which is deemed a sufficient physical invasion for purposes of a trespass action. However, and this is important, there are no facts indicating that StarWalkers intended to send their material onto Juan's land, making this the correct answer because it sets forth a situation where the element of intent is missing.

A is incorrect. StarWalkers is not free to commit an act that is deemed a trespass simply because Juan knew about them when he bought the land, as his knowledge is NOT implied consent.

B is incorrect. Physical invasion does not require that the defendant enter onto the land of the plaintiff; proven intent, in a situation such as this, is sufficient to be found a trespass.

D is incorrect. The defense of public necessity only arises when the public good is threatened with injury and the defendant is obligated to act for fear of the resulting injury actually occurring. Additionally in a public necessity case, the threatened fear or injury must be substantially greater than the defendant's interference by trespass onto the plaintiffs property. Here, there is no pending public necessity, making D inapplicable.

LEARNING POINT: Trespass requires intent.
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