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

Witt & Tani, TCPI 2. Intentional Harms
Common law jurisdictions typically hold that a person is liable for trespass to chattels
only if her interference with the chattel either causes dispossession or causes injury to the
possessor. See, e.g., RESTATEMENT (SECOND) OF TORTS § 218 (1965). In other words, the
common law imposes the same kind of injury or damage requirement that appeared in the law of
intangible trespasses and in the law of battery, but which is not typically present in the law of
trespass to real property. Whether the property interest in question is real or personal can thus
have determinative significance for the outcome of a case.
Yet, the difference between the two formal categories of property—and thus the
difference between the two trespass causes of action—can be difficult to discern. Consider
Blondell v. Consolidated Gas Co., where the plaintiff natural gas supplier sued defendants for
attaching a device known as a “governor” to the plaintiff’s meters, pipes, and connections inside
the buildings of the plaintiffs’ customers for the purpose of reducing gas consumption by the
customers. Defendants replied by denying that their governors caused any damage to the
plaintiff’s meters, pipes, and connections. The meters, pipes, and connections belonged to the
plaintiff; they were not fixtures on the real property (the buildings) of the customers.
Nonetheless, the court applied the trespass standard as if the property in question was real rather
than personal:
The meter is a device for measuring the consumption of gas, which the law requires
to be used by the plaintiff as a part of its system, while the governor which the
defendants claim the right to affix thereto is a device designed for the purpose of
regulating the pressure of the gas after it passes through the meter. Now, it seems
to us that the large mass of testimony contained in the record, showing on the one
hand that the affixing of the governor was, and on the other hand that it was not,
injurious to the meter and its connections, is entirely beside the question; for,
whether the alleged acts were or were not productive of injury, they were, in the eye
of the law, trespasses, if, as we have said, the meters are the plaintiff’s property.
43 A. 817, 819 (Md. 1908). Is the property at issue in Blondell real or personal? In each scenario,
which party would be most likely to prevail?
Lately, this once sleepy area of the law has generated more excitement. Without anyone
quite anticipating what would take place, the law of trespass to chattels has become central to a
crucial question in the brave new world of digital interactions. What about trespass in
cyberspace?
Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003)
WERDEGAR, J.
. . .
Intel Corporation (Intel) maintains an electronic mail system, connected to the Internet,
through which messages between employees and those outside the company can be sent and
received, and permits its employees to make reasonable nonbusiness use of this system. On six
occasions over almost two years, Kourosh Kenneth Hamidi, a former Intel employee, sent e-mails
criticizing Intel’s employment practices to numerous current employees on Intel’s electronic mail
system. Hamidi breached no computer security barriers in order to communicate with Intel
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