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

Witt & Tani, TCPI 2. Intentional Harms
reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not
parted, or if, in the first instance, the master had used the stronger cables, there would be no
liability. If the master could not, in the exercise of reasonable care, have anticipated the severity
of the storm and sought a place of safety before it became impossible, why should he be required
to anticipate the severity of the storm, and, in the first instance, use the stronger cables?
I am of the opinion that one who constructs a dock to the navigable line of waters, and
enters into contractual relations with the owner of a vessel to moor at the same, takes the risk of
damage to his dock by a boat caught there by a storm, which event could not have been avoided in
the exercise of due care, and further, that the legal status of the parties in such a case is not
changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.
JAGGARD, J., concurs herein.
Notes
1. The incomplete privilege of private necessity. Under the privilege of necessity, a
defendant is permitted to commit what would otherwise be an intentional tort to another’s rights
in property or realty to protect a more valuable interest in property or an interest in bodily security
or life. See RESTATEMENT (SECOND) OF TORTS §§ 196, 197, 262, 263 (1965). Where the more
valuable interest belongs to a large number of persons, as for example, where a city must be saved
from a fire, the privilege may be deemed one of public necessity, and the defendant will owe no
compensation for any damage that occurs in reasonable exercise of the privilege. See id. §§ 196,
262. However, where the more valuable interest belongs only to the defendant or a small number
of persons, the privilege is classified as a case of private necessity, and in suits by a party injured
by the invasion, courts will require that the taker pay compensation for the harm caused by the
invasion. See id. § 197(2); § 263(2) & cmt. e. The privilege of private necessity is thus an
incomplete privilege (while the privilege of public necessity, by contrast, is complete). Note,
however, that even where the privilege is incomplete in this sense, the privilege to invade
another’s property means that a property owner engaging in self-help to prevent the privileged
invasion must pay for any damages resulting from her self-help. See id. § 263 cmt. b.
2. A philosopher’s view of Vincent. Philosophers of tort law typically argue that the
normative structure of tort law is organized around wrongs and obligations of repair. But if that is
so, what was the wrong in Vincent? Leading philosopher of tort law Jules Coleman offered an
ingenious argument on this score:
There are three different ways in which “wrongs” and “compensation” can be
connected. (1) You wrong me and owe me compensation because of the wrong you
have done me. (2) You pay me compensation and thereby make right (or make
permissible) what would otherwise be a wrong to me. (3) You wrong me and owe
me compensation, but your conduct is permissible even if you cannot and ultimately
do not compensate me.
Jules L. Coleman, Some Reflections on Richard Brooks’s “Efficient Performance Hypothesis,”
116 YALE L.J. POCKET PART 416 (2007). Does the Coleman explanation offer an adequate
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