Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
6. The psychology of consent. Do we know involuntariness when we see it? Recent research
by Roseanna Sommers and Vanessa Bohns has been invoked by some scholars to suggest that
social pressures may turn requests for voluntary consent into occasions of coerced compliance.
Sommers and Bohns report that when researchers conducting a laboratory study asked one group
of participants to unlock their password-protected smartphones and give them to an experimenter
to search through while the participants waited in another room (i.e., a highly intrusive request),
the vast majority of participants complied; when researchers asked another group of participants
whether a reasonable person would agree to such a request if hypothetically approached by the
same researcher, the vast majority predicted that people would refuse and reported that they
themselves would refuse the request. Roseanna Sommers & Vanessa K. Bohns, The
Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance, 128
YALE L.J. 1962 (2019). What explains the gap between predicted performance and actual
performance? If it is true that decisionmakers are not good at estimating the freedom, or lack of
freedom, that another person feels when asked to permit an intrusion on their own interests, is this
a reason to change the way the doctrine of consent currently operates? What might such a change
look like?
5. Necessity
For cases of alleged trespass, tort law allows defendants to argue that their actions were
necessary and therefore privileged. The following two cases present famous nuances arising from
claims of necessity. Pay careful attention in each case to which party has asserted such a claim.
Ploof v. Putnam, 71 A. 188 (Vt. 1908)
MUNSON, J.
It is alleged as the ground on recovery that on the 13th day of November 1904, the
defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached
thereto, which island and dock were then in charge of the defendant’s servant; that the plaintiff
was then possessed of and sailing upon said lake a certain loaded sloop, on which were the
plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest,
whereby the sloop and the property and persons therein were placed in great danger of
destruction; that, to save these from destruction or injury, the plaintiff was compelled to, and did,
moor the sloop to defendant’s dock; that the defendant, by his servant, unmoored the sloop,
whereupon it was driven upon the shore by the tempest, without the plaintiff’s fault; and that the
sloop and its contents were thereby destroyed, and the plaintiff and his wife and children cast into
the lake and upon the shore, receiving injuries. . . .
There are many cases in the books which hold that necessity, and an inability to control
movements inaugurated in the proper exercise of a strict right, will justify entries upon land and
interferences with personal property that would otherwise have been trespasses. A reference to a
few of these will be sufficient to illustrate the doctrine. . . . In trespass of cattle taken in A.,
defendant pleaded that he was seised of C. and found the cattle there damage feasant, and chased
them towards the pound, and they escaped from him and went into A., and he presently retook
them; and this was held a good plea. . . . If one have a way over the land of another for his beasts
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