A person entering upon the land of another without permission is a trespasser. A person directing or causing another to commit the offense is liable for trespass. Causing someone else to trespass is a trespass[i]. In an action for trespass a co-trespasser and joint trespassers are generally held liable.
A person is liable to another for trespass, when s/he intentionally:
- enters land in the possession of the other, or causes a thing or a third person to do so;
- remains on the land; or
- fails to remove from the land a thing which s/he is under a duty to remove[ii].
In the commission of trespass, co-trespassers are liable in the same manner as if the trespass is committed by them. Co-trespassers are persons aiding the commission of trespass. Co-trespassers include persons commanding, instigating, promoting, encouraging, advising, aiding and abetting the commission of a trespass. Liability for trespass can be imposed for conduct which is intentional, reckless and, negligent[iii].
In order to punish a person for trespass, his/her physical presence in the premises is not essential. “While physical entry by the trespasser upon another’s land is not necessary, the trespasser must have at least caused or directed another person to trespass”[iv]. A person directing or authorizing a trespass is jointly liable with the person commits trespass[v].
However, a defendant not controlling trespassers activity is not liable for trespass. Awareness of trespasser’s activity does not indulge a person to the offense of trespass.
At common law, the doctrine of joint and several liability provides that when multiple tortfeasors contribute to the same indivisible injury, each individual tortfeasor is held jointly and severally liable for plaintiff’s total damages[vi]. Two or more persons whose negligence in a single accident or event causes damages to another person are joint tortfeasors.
Generally, all who wrongfully contribute to the commission of a trespass are equally liable with the person committing the act complained of. Persons who do not actively participate in the commission of the trespass must do something by way of encouragement, advice, or suggestion that leads to the commission of the trespass to render them liable as joint trespassers. There is no joint trespass where defendant’s independent acts contributed to the result or where they cooperated to do a lawful act and in doing it some of them committed a trespass. Joint trespassers can be sued jointly or severally at plaintiff’s election, as each joint trespasser against whom a joint action is brought is liable for the whole injury[vii].
A person can be held liable for trespass on the principle that s/he who does an act by another does it himself/ herself. The act need not be the work of his/her hands. The act can be the result of his/her will and purpose which are the efficient cause of the operations conducted by others[viii].
Additionally, a person ratifying an act of trespass after the commission is liable as the principal.
In order to ratify, s/he must:
- authorize or instruct the third party to do something;
- direct the third party’s conduct; or
- accept the benefits of the trespass with full knowledge of its illegality.
When a person ratifies an act of trespass the offense relates back to the date of performance. The person who ratified the act is made liable from the date of the incident and not from the date of ratification. “One who aids or encourages a trespass or subsequently ratifies a trespass may be liable even without personal participation in the actual trespass”[ix].
[i] Martin v. Brown, 650 A.2d 937, 939 (Me. 1994).
[ii] Restat 2d of Torts, § 158.
[iii] Smith v. Lockheed Propulsion Co., 247 Cal. App. 2d 774, 784 (Cal. App. 4th Dist. 1967).
[iv] Axtell v. Kurey, 222 A.D.2d 804, 806 (N.Y. App. Div. 3d Dep’t 1995).
[v] Chase v. Cochran, 67 A. 320, 322 (Me. 1907).
[vi] Costello v. United States, 1999 U.S. Dist. LEXIS 14708, 5-6 (N.D. Ill. Aug. 31, 1999).
[vii] Kapson v. Kubath, 165 F. Supp. 542, 551 (D. Mich. 1958).
[viii] State v. Smith, 78 Me. 260, 265 (Me. 1886).
[ix] Parker v. Kangerga, 482 S.W.2d 43, 47 (Tex. Civ. App. Tyler 1972).