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

Witt & Tani, TCPI 2. Intentional Harms
demonstrates the distinctiveness of the wrong of trespass to land. Vincent, we
believe, is a plain-vanilla trespass case. The ship owner intentionally occupied the
defendant’s property (the dock) even after it was no longer permitted to do so. It
therefore committed a trespass for which compensation was owed. Of course its
decision to trespass was entirely reasonable. However—as we have emphasized all
along—the wrong of trespass, at least in the first instance, has nothing to do with
whether the defendant behaved reasonably. . . .
Even though the reasonableness of the trespass in Vincent does not prevent it from
being a trespass, it does have some significance on the outcome of the case. . . .
[T]he same circumstances that explain why the captain’s decision to stay put was
entirely reasonable also explain why the dock owner in Vincent, like the dock owner
in Ploof, would have faced liability if it had forcibly ejected the Reynolds from the
dock, thereby causing it or its crew to suffer harm. A property owner has a limited
privilege to take measures to ward off trespassers [but] as we saw in Katko v. Briney,
a property possessor cannot do just anything in response to trespasses. Ploof tells
us that if a property owner expels trespassers under circumstances where the
expulsion exposes them to a grave risk of death or bodily harm, the property owner
will have abused his privilege to defend his property and therefore will be subject
to liability for battery.
JOHN C. P. GOLDBERG & BENJAMIN C. ZIPURSKY, THE OXFORD INTRODUCTIONS TO U.S. LAW:
TORTS (2010). What, in Goldberg’s and Zipursky’s view, explains why the dockowner may not
forcibly unmoor the shipowner? Do Goldberg and Zipursky have an account of this feature of the
legal structure, or does their theory beg the question of whence the privilege comes?
5. The economic view of Vincent. A very different set of accounts of tort law and of cases
like Vincent emphasizes the economic logic of the case. In this view, the aim of the law should be
to allocate liability to the party best positioned and incentivized to minimize the costs of
accidents. Costs should be allocated, in other words, to the best cost avoider. See GUIDO
CALABRESI, THE COSTS OF ACCIDENTS (1970).
Note, however, that cases like Vincent pose two wrinkles. The first is that it can be very
hard for an adjudicator to accurately gauge which party is better positioned to minimize accident
costs. The second is that it is not always clear that adjudicators will in fact always be able to
decide that question, at least as a prospective matter. Will shipowners in Minnesota bear the risk
of Vincent-like damages in future Vincent-like situations? One might think so having just read the
case. But if we allow shipowners and dockowners to trade the risks before those risks come to
fruition, we should expect to see the risk freely traded, even if the common law tort rule allocates
it to ship owners as an initial matter.
This insight has made the Vincent decision a classic case for the discussion of what
economists and lawyers call the Coase Theorem. In a famous article, Nobel Prize-winning
economist Ronald Coase contended that absent transaction costs, rational parties will transact to
allocate the entitlements to their highest value user regardless of the initial allocation of legal
entitlements. Parties will do so in order to maximize the joint value of the entitlement in question.
Coase gave the analogy of a then-recent British case brought by a physician against a neighboring
baker whose noisy machinery interfered with his medical practice. The court had allocated the
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