The Fault of Trespass
University of Toronto Law Journal (2015 Forthcoming)
42 Pages Posted: 7 Aug 2014 Last revised: 28 Oct 2014
Date Written: August 6, 2014
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.
Keywords: trespass, strict liability, fault, responsibility, property
JEL Classification: K11, K13
Suggested Citation: Suggested Citation