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

Witt & Tani, TCPI 2. Intentional Harms
slave from his subjection. It constitutes the curse of slavery to both the bond and
free portions of our population. But it is inherent in the relation of master and slave.
State v. Mann, 13 N.C. 263, 266-67 (1829). Ruffin’s opinion in State v. Mann became
sufficiently notorious as to mobilize a generation of abolitionists before the Civil War.
Nonetheless, as of June 2020, Ruffin’s portrait still hung above the bench of the North Carolina
Supreme Court. A statue of him stands in an alcove outside the State Court of Appeals building.
The state Supreme Court has been reviewing the status of the portrait since October 2018. See
Martha Waggoner, Court Portrait of Writer of Notorious Slave Ruling Reviewed, A.P. NEWS, Jan.
18, 2020.
Suffice it to say, American law did not allow tort actions by a person whom the law
defined as a slave against a person whom the law defined as the slave’s master. Injuries to
enslaved persons did form the basis for a substantial body of tort law in the American South, but
these cases involved enslaved persons who had been hired out by their owners; the plaintiffs in
such cases were the owners, seeking compensation for something they understood as property
damage, not the enslaved persons who had experienced bodily harm. See THOMAS MORRIS,
SOUTHERN SLAVERY AND THE LAW, 1619-1860 (1996).
3. Intangible trespass. Traditionally, trespass actions were limited to physical intrusions. In
Michigan, for example, dust, noise, and vibrations crossing from the defendant’s mining activities
onto a plaintiff’s property do not constitute a trespass. See Adams v. Cleveland-Cliffs Iron Co.,
602 N.W.2d 215 (Mich. App. 1999). In other jurisdictions, courts have allowed that such
intangible crossings over a property line may produce liability for trespass. But even in these
jurisdictions, there is a significant difference between intangible trespass and tangible trespass.
The former only creates liability in tort if accompanied by actual damages. To put it in Judge
Ruffin’s terms, there is a rule of reason for intangible trespasses, and that rule of reason provides
that trespasses without injury are not actionable as trespasses. (Many such cases raise questions in
the doctrine of nuisance, which we will turn to in Chapter 9.)
Why place this additional requirement on actions for intangible trespass to real property?
In Colorado, in a trespass action brought for sound waves, radiation, and electromagnetic fields
from a public utility, the state Supreme Court held that intangible trespass actions may succeed
“only if an aggrieved party is able to prove physical damage to the property.” The Court
explained:
The requirement that the intangible intrusion be intentional, and that a plaintiff
prove physical damage caused by the intrusion, safeguards against the concern that
allowing trespass claims against intangible intrusions would produce too much
liability. . . . Moreover, a property owner forced to prove damage will be further
limited to seeking redress in cases of serious or substantial invasions. The difficulty
in proving a connection between a minor damage and an intangible intrusion is too
great to support mass litigiousness on the part of pestered property owners.
Public Service Co. of Colorado v. Van Wyck, 27 P.3d 377, 390 (Colo. 2001). What about flashes
of light communicated through buried fiber-optic cables? Should these be treated as trespassing
on the property in which the cables are buried? See In re WorldCom, Inc., 546 F.3d 211, 217-18
(2d Cir. 2008) (Sotomayor, J.).
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