Who pays for necessary harms Outline, Sept. 2 and 7, 2004

1
Who pays for necessary harms?(Outline, Sept. 2
and 7, 2004)

• Necessity as a defense to trespass.
• Ploof v. Putnam and Vincent v. Lake Erie
  alternative rules.
• Vincent and Anti-Vincent.
• Game theory mechanics filling in the grid
  picking a dominant square
• What we learn from the game.

2
Ploof v. Putnam (necessity as defense to trespass)

• Alternative rules Boat should be able to dock
  when
• a) Any danger to boat or passengers
• b) Serious danger to passengers
• c) Serious danger to the boat
• d) Danger to boat outweighs harm to dock owner
• e) Danger to the boat/passengers, and no danger
  to dock owner
• f) Boat pays the customary/reasonable fee
• g) Permission by the dock owner

3
Ploof v. Putnam (necessity as defense to trespass)

• Alternative rules Boat should be able to dock
  when
• a) Any danger to boat or passengers
• b) Serious danger to passengers
• c) Serious danger to the boat
• d) Danger to boat outweighs harm to dock owner
• e) Danger to the boat/passengers, and no danger
  to dock owner
• f) Boat pays the customary/reasonable fee
• g) Permission by the dock owner

4
The Reynolds
5
Vincent and anti-Vincent Game

• Constants
• Ploof The dock owner is liable for harm to the
  boat, if dock owner doesnt allow the boat to
  moor.
• State of nature If the boat owner doesnt try
  to dock, and ends up experiencing harm, the boat
  owner absorbs it.
• Varying rules
• Vincent Boat owner is liable for any harm done
  the dock
• Anti-Vincent No such liability.

6
Vincent and Anti-Vincent Game(a) H(boat) gt
H(dock) H(boat) 10, H(dock) 5
7
Vincent and Anti-Vincent Game(a) H(boat) gt
H(dock) H(boat) 10, H(dock) 5
8
Vincent and Anti-Vincent Game(a) H(boat) gt
H(dock) H(boat) 10, H(dock) 5
9
Vincent and Anti-Vincent Game(a) H(boat) gt
H(dock) H(boat) 10, H(dock) 5
10
Vincent and Anti-Vincent Game(a) H(boat) gt
H(dock) H(boat) 10, H(dock) 5
11
Vincent and Anti-Vincent Game(a) H(boat) gt
H(dock) H(boat) 10, H(dock) 5
12
Vincent and Anti-Vincent Game(b) H(boat) lt
H(dock) H(boat) 5, H(dock) 10
13
Vincent and Anti-Vincent Game(b) H(boat) lt
H(dock) H(boat) 5, H(dock) 10
14
Vincent and Anti-Vincent Game(b) H(boat) lt
H(dock) H(boat) 5, H(dock) 10
15
Vocabulary

• Expected value probability(cost or benefit)
• Cost-benefit analysis comparing the expected
  value of the loss/benefit under one decision with
  the expected value of the loss/benefit under a
  different decision.
• Efficiency (technically, Kaldor-Hicks
  efficiency) the lowest available cost or maximum
  available benefit to all the relevant parties
  that is, summed across parties
• Conduct rules (which tell people what they may
  and may not do) vs. liability or compensation
  rules (which tell people when they must pay).

16
Intentional Torts Black Letter Rules (review)

• Battery, generally Level of intent required
• Intent, generally Purpose or knowledge
• Mental illness and intentional torts.
• Self-defense and mistaken self-defense
• Necessity and trespass
• a) Necessity as a defense to trespass
• b) Necessity as an imperfect privilege

17
The Fault Continuum

Non-fault
Fault