Dorfman and Jacob, ‘The Fault of Trespass’

The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former’s property. In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders. This view is best captured by the keep-off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one’s own. In this article, we argue that this view is mistaken. We advance conceptual, normative, and doctrinal arguments to show that this account runs afoul of the actual workings of the tort in question. A more precise account of trespass to land will reveal that the tort gives rise to a hybrid regime of tort liability, one which combines considerations of fault along with those of strict liability. On the proposed account, therefore, an owner does assume some responsibility for guiding others in fulfilling the duty they owe the former.

Avihay Dorfman and Assaf Jacob, THE FAULT OF TRESPASS. University of Toronto Law Journal, DOI 10.3138/utlj.2637. Online Date: Wednesday, October 22, 2014.

First posted 2014-10-23 06:31:41

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