Motor Vehicle Crash Fatalities and Fatality Rates (per Hundred Million Vehicle Miles Traveled), 1899-2009
A. Trespass
2. Defense of Real Property
Bird v. Holbrook, 130 Eng. Rep. 911 (C.P. 1825)
[Plaintiff was a nineteen-year-old boy who, seeing a young woman giving chase to a stray pea-hen, climbed the wall of a neighboring garden for the innocent purpose of retrieving the fowl, which belonged to the young woman’s employer and had flown over the wall and into the garden. The defendant, who leased the garden, used it to grow
“valuable flower-roots,” including tulips “of the choicest and most expensive description.”
He lived one mile from the garden but sometimes slept with his wife in a summer house on the garden grounds so as to better protect his tulips. Shortly before the incident at issue in the case, defendant had been robbed of flowers and roots in the value of about
£20. To prevent further theft, the defendant placed in the garden a spring gun loaded with gunpowder and buckshot and operated by wires stretching across the garden’s paths in three or four locations. Defendant posted no notice of the spring gun, and though the wires were visible from the wall, the defendant conceded that the plaintiff did not see them. When the defendant told one or two people about the spring gun, he asked them
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not to tell others of its presence in the garden “lest the villain should not be detected.”
One witness testified that he (the witness) had urged the defendant to post a notice of the gun, but the defendant had answered that “he did not conceive that there was any law to oblige him to so.” “The Defendant stated to the same person that the garden was very secure, and that he and his wife were going to sleep in the summer-house in a few days.”
Plaintiff climbed the garden wall, which was nowhere higher than seven feet, between the hours of six and seven in the afternoon. “Having called out two or three times to
ascertain whether any person was in the garden and waiting a short space of time without receiving any answer,” the plaintiff jumped down into the garden and pursued the pea-hen into a corner near the summer house, where his foot came into contact with one of the wires close to the spot where the gun was set. The wire triggered the gun, which discharged a load of swan shot into the plaintiffs’ knee, maiming him. After the case was tried at the Bristol assizes, plaintiff and defendant consented to enter a verdict for the plaintiff of £50, to be reserved pending the judgment of the Court of Common Pleas.]
Merewether Serjt. for the defendant. . . The humanity or inhumanity of a practice, is not a test of its legality . . . . Plaintiff cannot recover for an injury occasioned to him by his own wrongful act. Commodum ex injuria non oritur [benefits do not arise out of wrongful acts] and it is equally the principle of our law, that jus ex injuria non oritur [rights do not arise out of wrongs]. If a man place broken glass on a wall, or spikes behind a carriage, one who willfully encounters them, and is wounded, even though it were by night, when he could have no notice, has no claim for compensation. Volenti non fit injuria [no legally cognizable injury occurs with the consent of the victim]. The Defendant lawfully places a gun on his own property; he leaves the wires visible; he builds a high wall, expressly to keep off intruders; and if, under those circumstances, they are permitted to recover for an injury resulting from their scaling the wall, no man can protect his property at a distance.
Wilde in reply. . . . No illustration can be drawn from the use of spikes and broken glass on walls, &c. These are mere preventives, obvious to the sight,-- unless the
trespasser chooses a time of darkness, when no notice could be available,-- mere preventives, injurious only to the persevering and determined trespasser, who can calculate at the moment of incurring the danger the amount of suffering he is about to endure, and who will, consequently, desist from his enterprise whenever the anticipated advantage is outweighed by the pain which he must endure to obtain it.
BEST, C.J. . . . It has been argued that the law does not compel every line of conduct which humanity or religion may require; but there is no act which Christianity forbids, that the law will not reach: if it were otherwise, Christianity would not be, as It has always been held to be, part of the law of England. I am, therefore, clearly of opinion that he who sets spring guns, without giving notice, is guilty of an inhuman act and that, if injurious consequences ensue, he is liable to yield redress to the sufferer. But this case stands on grounds distinct from any that have preceded it. In general, spring guns have been set for the purpose of deterring; the Defendant placed his for the express purpose of doing injury; for, when called on to give notice, he said, “If I give notice, I shall not catch him.” He intended, therefore, that the gun should be discharged, and that the contents
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should be lodged in the body of his victim, for he could not be caught in any other way.
On these principles the action is clearly maintainable, and particularly on the latter ground. . . . As to the case of Brock v. Copeland, Lord Kenyon proceeded on the ground that the Defendant had a right to keep a dog for the preservation of his house, and the Plaintiff, who was his foreman, knew where the dog was stationed. The case of the furious bull is altogether different; for if a man places such an animal where there is a public footpath, he interferes with the rights of the public. What would be the
determination of the court if the bull were placed in a field where there is no footpath, we need not now decide; but it may be observed, that he must be placed somewhere, and is kept, not for mischief, but to renew his species; while the gun in the present case was placed purely for mischief. . . .
. . . . But we want no authority in a case like the present; we put it on the principle that it is inhuman to catch a man by means which may maim him or endanger his life, and, as far as human means can go, it is the object of English law to uphold humanity and the sanctions of religion. It would be, indeed, a subject of regret, if a party were not liable in damages, who, instead of giving notice of the employment of a destructive engine, or removing it, at least, during the day, expressed a resolution to withhold notice, lest, by affording it, he should fail to entrap his victim.
. . . .
BURROUGH, J. The common understanding of mankind shews, that notice ought to
be given when these means of protection are resorted to; and it was formerly the practice upon such occasions to give public notice in market towns. But the present case is of a worse complexion than those which have preceded it; for if the Defendant had proposed merely to protect his property from thieves, he would have set the spring guns only by night. The Plaintiff was only a trespasser: if the Defendant had been present he would not have been authorized even in taking him into custody, and no man can do indirectly that which he is forbidden to do directly. . . . [N]o notice whatever was given, but the Defendant artfully abstained from giving it, and he must take the consequences.
Notes
1. Pea-fowls versus tulips. Judge Richard Posner analyzes Bird as presenting a conflict between two economic activities:
The issue in the case, as an economist would frame it, was the proper
accommodation of two legitimate activities, growing tulips and raising peacocks.
The defendant had a substantial investment in the tulip garden; he lived at a distance; and the wall had proved ineffective against thieves. In an era of negligible police protection, a spring gun may have been the most cost-effective means of protection for the tulips. But since spring guns do not discriminate between the thief and the innocent trespasser, they deter owners of domestic
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animals from pursuing their animals onto other people’s property and so increase the costs (enclosure costs or straying losses) of keeping animals. The court in Bird implied an ingenious accommodation: One who set a spring gun must post notices that he has done so. Then owners of animals will not be reluctant to pursue their animals onto property not so posted. A notice will be of no avail at night, but animals are more likely to be secured then and in any event few owners would chase their straying animals after dark.
POSNER,ECONOMIC ANALYSIS OF LAW 260-61 (8th ed. 2011). If this is the right way to
think about Bird v. Holbrook, what explains the court’s decision to place the obligation to avoid the conflict between the two activities on the tulip growers rather than on the pea-fowl farmers? The tulip grower has at least built a wall. Should the plaintiff be able to sue the pea-fowl farmer for the effects of his failure to keep the pea-fowl contained?
Note Judge Posner’s reference to the negligible police protection of 1820s Great Britain. We no longer live in such an era – at least not in developed countries. Does this matter for the analysis? What about technological changes? Should spring guns or other dangerous traps be allowed even with notice in defense of private property now that inexpensive digital cameras promise the possibility of constant surveillance?
2. Malicious traps. The use of spring guns and other traps by property owners looking for an inexpensive way to defend their property – or to wreak private vengeance on thieves – has not disappeared in the era of modern policing. Such traps raise questions of both criminal law, which asks whether criminal punishment is appropriate, and tort law, which asks whether property-owners should be required to compensate for the injuries their traps cause, or should instead be treated as having engaged in justified self-defense.
Probably the most celebrated (and reviled) instance of the use of spring gun traps is Katko v. Briney, 183 N.W.2d 657 (Iowa 1971), near the beginning of the
late-twentieth-century crime wave. The issue before the court in Katko was whether an owner
“may protect personal property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury.”
After a series of break-ins to their vacant farmhouse over a ten year period – break-ins that had resulted in considerable property damage and the theft of household items – Mr.
and Mrs. Briney decided to put a stop to the crimes once and for all. In June 1967 they supplemented the “no trespass” signs on the property with boards on the windows and doors and with a spring-loaded shotgun wired to fire when the door to a bedroom was opened.
In July 1967, a man named Katko entered the home to steal antique glass bottles and fruit jars he had found on an earlier visit. After loosening a board on the porch window, Katko entered the house with a companion and began to search it. On opening the north bedroom door, Katko triggered the shotgun trap set by the defendants. The 20-gauge spring shotgun fired, striking Katko in the right leg above the ankle; much of his leg, including part of the tibia, was destroyed. Katko later entered a guilty plea to larceny, stating that he knew “he had no right to break and enter the house with the intent to steal.”
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The value of the jars and bottles was set at less than $20 in value; Katko was later fined
$50 and paroled during good behavior from his 60-day jail sentence. The legal consequences for the Brineys were somewhat stiffer; when Katko brought suit for damages, the trial judge instructed the jury:
You are hereby instructed that one may use reasonable force in the
protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury. Such is the rule even though the human party is a trespasser and is in violation of the law himself.
The jury found for Katko and awarded him $20,000 in compensatory damages and an additional $10,000 in punitive damages. The Iowa Supreme Court upheld the verdict and approved the instruction, 183 N.W.2d 657, notwithstanding widespread protest, an angry dissent, and a nationwide fundraiser that netted some $10,000 for the Brineys.
Newspapers later reported that the Brineys sold 80 acres of their 120-acre farm in order to pay the judgment to Katko. When asked several years later whether he had any regrets, Mr. Briney replied: “There’s one thing I’d do different, though. . . . I’d have aimed that gun a few feet higher.” Booby Trap Case in Iowa Takes New Turn, CHI.TRIBUNE, April 25, 1975, p. 1.
Why was the spring shotgun an unjustifiable protection for the Brineys’
farmhouse? Does it matter that the defendants’ home was several miles from the scene?
That neither Mr. Briney nor Mrs. Briney were present on the property at the time of the break-in? Under what conditions, if any, could the Brineys’ shotgun trap be considered a reasonable protection of property?