great new article by Gfactor about ad flyers.

[DrDeth]

Thanks dude, for this about unwanted advertising"flyers":
http://www.straightdope.com/mailbag/msolicitation.html

This will answer quite a few threads around here. Now if I can only get my local Gov't to write up a law like Mount Vernon.

[Gfactor]

Thanks, DrDeth. It was a fun one to write. It's always fun to review the Jehovah's Witness cases.

[Elendil's Heir]

Well done, Gfactor. My research revealed similar results when I was helping one of our judges write Rhines v. Bailiss (2005), 140 Ohio Misc.2d 5. In that case, a Jehovah's Witness was bitten by a dog while she was leafleting. The court found the homeowner liable for damages under Ohio's dog-bite statute, because the plaintiff, "while distributing religious literature, was not a trespasser under Ohio law" and had not been warned, either verbally or by a posted sign, to leave the premises.

[DSYoungEsq]

Thanks dude, for this about unwanted advertising"flyers":
http://www.straightdope.com/mailbag/msolicitation.html

This will answer quite a few threads around here. Now if I can only get my local Gov't to write up a law like Mount Vernon.
Given that Gfactor suggests the law in Mount Vernon is unconstitutional, and only passed muster because no one appears to have attacked it on the basis of the First Amendment cases he cites, I wouldn't get too excited about it. ;)

I've always liked the name of the tort: "Tresspass to chattel." Has a lovely ring to it... :D

[Gfactor]

Thanks. So, are you surprised by the holdings of cases like Miller http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=123069 (reversing litter conviction that was based on complaints by seven homeowners) and Ad World 672 F.2d 1136 (3d Cir. 1982)?

The Ad World court refused to follow Commonwealth v. Sterlace, 481 Pa. 6, 391 A.2d 1066 (1978), which had upheld as a reasonable time, place or manner regulation a nearly identical ordinance that read:

It shall be unlawful for any person, firm, or corporation to distribute advertising material at a residence within the township (other than at the home of the person, firm or corporation distributing the same) by placing such material at the residence, on the property or on the residential mail box of the person owning or occupying the residence, unless the person, firm or corporation distributing such advertising material does so based upon the affirmative request or consent of the person occupying the residence. The foregoing provision shall not apply to the distribution of advertising material through the United States mail service.

noting "That opinion obviously cannot bind us in our interpretation of the Federal Constitution."

[Randy Seltzer]

Very nice article. I always get a little excited when I see reports on legal issues.

I do have a question about your wording though...
But in this kind of case, you usually can't get nominal damages – you've got to show that the trespasser actually damaged the property. When you say "this kind of case," do you mean cases involving trespass to chattel, or cases involving fliers under wiper blades? If the latter, I'd say you're probably right. But if the former, I'm afraid you go a bit far.

RST § 218, states that one who intentionally intermeddles with another person's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected...

So you don't always have to show damage to property. (Again, like I said earlier, I can't imagine any way that fliers are harmful to the quality or value of your car, so this wouldn't apply to the staff report.) But you can be found liable under trespass to chattels without doing any physical damage. All the plaintiff needs to do is prove that you somehow reduced the quality of his stuff, or that you deprived him of its use for some length of time.

For example, internet spammers are occasionally prosecuted under 'trespass to chattels' , on the premise that the spam can clog up servers, causing them to run imperceptably slower, which is harmful to the "quality" of the ISP's physical property.

[Gfactor]

Thanks.

There will always be states that are different, and situations that are exceptions to the rule. That's why I said usually.

of the use of the chattel for a substantial time is one of those exceptions. But we agree it doesn't seem to apply to windshield flyers.

It'd be nice to have the luxury of annotating each article with every state's laws and every exception to the general rule, but Ed gets grouchy when my reference section is too long. I doubt he's going to want to edit 40 or 50 footnotes. :D

Regarding spam as trespass to chattel, the California Supreme Court recently collected the cases in Intel Corp. v. Hamidi: http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/30/1342.html

[DSYoungEsq]

Gfactor, I could be mistaken, but I think Randy is making reference to the Restatement (Second) of Torts, so the rule he is quoting would be the generally accepted rule, not the exception found in some states. N'est-ce pas, Randy?

[Gfactor]

Gfactor, I could be mistaken, but I think Randy is making reference to the Restatement (Second) of Torts, so the rule he is quoting would be the generally accepted rule, not the exception found in some states. N'est-ce pas, Randy?

Here's the problem with the Restatement: It doesn't reflect every state's law. In fact, I seem to recall finding at least one state that does permit nominal damages for trespass to chattel. :eek: Rather than going into a long discussion of the cases where the general rule doesn't generally apply (sometimes), I opted for the easy way: weasel wording.

It's still true that you usually have to show actual damages. Some courts don't require it; there's some play in the joints about what counts as actual damages, but usually you've got to prove actual damages (as opposed to nominal damages) in order to recover for trespass to chattels.

[askeptic]

I would like to have seen the issue of private persons placing private communication in mail boxes addressed. The question started off with a commonly held false belief ie. "My question is this: if a private citizen cannot legally put something in my mailbox..." There is no law preventing my neighbor from placing a party invitation in my mail box. There are federal laws prohibiting commercial carriers and mass distributers from putting things in a mail box, but nothing prohibits private individuals from distributing 5 or fewer communications to private mail boxes.

[Randy Seltzer]

Gfactor, I could be mistaken, but I think Randy is making reference to the Restatement (Second) of Torts, so the rule he is quoting would be the generally accepted rule, not the exception found in some states. N'est-ce pas, Randy?Mais oui. Indeed, the RST is the general rule, and states will deviate from that. Of course, that being said...Here's the problem with the Restatement: It doesn't reflect every state's law.Quite right. In fact it doesn't reflect any state's law in its entirety. But every state has adopted it in its entirety and made slight changes. And every state will use it as a gapfiller: where there is no precedent, they will defer to the restatement. Regarding spam as trespass to chattel, the California Supreme Court recently collected the cases in Intel Corp. v. Hamidi:Heh heh... we did the Intel case in Torts three weeks ago. It's not about spammers, but it does mention spammers in dicta, saying that they could definitely be prosecuted under trespass to chattels. Rather than going into a long discussion of the cases where the general rule doesn't generally apply (sometimes), I opted for the easy way: weasel wording. Totally understandable. I guess my objection was that the lay reader would interpret your article as saying that 'trespass to chattels' can only be invoked when your stuff is physically damaged; whereas this is not the case. But I take your point that actually clarifying this could be harmful to your materially valuable interest in the quality or value of the article's readability.

Somewhat related hypo: Let's say someone double parked, and blocked my car in. And while they were gone, I needed to rush someone to the hospital, but couldn't, since I was being "deprived of the use of my chattel for a substantial time." There was no physical damage to the car. Could I successfully sue under 'trespass to chattels'? (I personally would hold that, yes, I could sue, and would probably win. But then again, I'm not a lawyer yet.)

[Gfactor]

I would like to have seen the issue of private persons placing private communication in mail boxes addressed.

Maybe I'll write that one next. . . oh wait . . . I already did: http://www.straightdope.com/mailbag/mmailbox.htm :D

[Gfactor]

only[/U] be invoked when your stuff is physically damaged; whereas this is not the case. But I take your point that actually clarifying this could be harmful to your materially valuable interest in the quality or value of the article's readability.

Yes. At some point I need to make a decision about how precise I want to get on any topic. Here I decided that I could kill it with one quick sentence that was pretty close. In the past when I've written more elaborate explanations of rules like this, it's (rightly) been chopped down to size.


Somewhat related hypo: Let's say someone double parked, and blocked my car in. And while they were gone, I needed to rush someone to the hospital, but couldn't, since I was being "deprived of the use of my chattel for a substantial time." There was no physical damage to the car. Could I successfully sue under 'trespass to chattels'? (I personally would hold that, yes, I could sue, and would probably win. But then again, I'm not a lawyer yet.)

This might be an example where the exception is very important. You could make a case that you were deprived of the use of your car for a substantial period of time. I'll see if I can find some cases a bit later. Another interesting question would be whether you could get consequential damages for whatever medical consequences ensued because of the delay.

Quite right. In fact it doesn't reflect any state's law in its entirety. But every state has adopted it in its entirety and made slight changes. And every state will use it as a gapfiller: where there is no precedent, they will defer to the restatement. Well now, I'd say this is a bit off. First, Restatements are meant to be distillations of state law, sometimes including proposals for modification of state law. Second, I'm not aware of any state "adopting" the restatement, especially in its entirety, and I am aware of several states rejecting some if the more controversial provisions.

I seldom cite Restatements in briefs unless I don't have much else. OTOH, they are a great way to learn about the "common law" on a specific topic.

[Gfactor]

I'll see if I can find some cases a bit later. Another interesting question would be whether you could get consequential damages for whatever medical consequences ensued because of the delay.

I haven't forgotten this. I've just been busy. Maybe I'll get a chance tonight.

[ftg]

Maybe I'll write that one next. . . oh wait . . . I already did: http://www.straightdope.com/mailbag/mmailbox.htm :D

While we have your attention, Gf...

Mrs. FtG will sometimes put her coffee cup in our mailbox while she it out doing her morning walk. The mailcarrierpersonindividual doesn't usually deliver at that time. But if she were making rounds early that day, and found said cup in our mailbox, would that be A Problem?

[Gfactor]

While we have your attention, Gf...

Mrs. FtG will sometimes put her coffee cup in our mailbox while she it out doing her morning walk. The mailcarrierpersonindividual doesn't usually deliver at that time. But if she were making rounds early that day, and found said cup in our mailbox, would that be A Problem?

Well, it seems to violate postal regulations. Is it the sort of thing that would likely get you into legal trouble? It's very unlikely.

[Gfactor]

Somewhat related hypo: Let's say someone double parked, and blocked my car in. And while they were gone, I needed to rush someone to the hospital, but couldn't, since I was being "deprived of the use of my chattel for a substantial time." There was no physical damage to the car. Could I successfully sue under 'trespass to chattels'? (I personally would hold that, yes, I could sue, and would probably win. But then again, I'm not a lawyer yet.)

Here's a case that held you can sue for public nuisance and possibly false imprisonment. http://links.jstor.org/sici?sici=0026-2234(195205)50%3A7%3C1122%3ATFIPNL%3E2.0.CO%3B2-0 but it was reversed by Harnik v. Levine, 281 A.D. 878, 120 N.Y.S.2d 62, 1953 N.Y. App. Div. LEXIS 3641 (N.Y. App. Div. 1953) (court gave no explanation for reversal).

[Randy Seltzer]

Here's a case that held you can sue for public nuisance and possibly false imprisonment. http://links.jstor.org/sici?sici=0026-2234(195205)50%3A7%3C1122%3ATFIPNL%3E2.0.CO%3B2-0 but it was reversed by Harnik v. Levine, 281 A.D. 878, 120 N.Y.S.2d 62, 1953 N.Y. App. Div. LEXIS 3641 (N.Y. App. Div. 1953) (court gave no explanation for reversal).
Fascinating.

It looks like both of those actions require tangible damage. I wonder why the plaintiff didn't sue under trespass to chattels... under which he wouldn't need to show tangible damage - only that he was deprived of the use of his property. I'm guessing that it's because he achieved his goal in any case by dragging the jerk's butt into court and inconveniencing him the way he felt he was inconvenienced. I mean, who in 1951 sues for $25 in a tort action?

[Gfactor]

The plaintiff actually got nominal damages, which seems to be the reason the New York high court reversed. As for why this case got filed, I've got a theory:

Municipal Court, City of New York, Borough of Manhattan, First District:
WAHL, Justice. The plaintiffs in their complaint allege that the plaintiff Hans Harnik, an attorney, accompanied by the co-plaintiff, his wife, lawfully parked his automobile along the curb of the easterly side of Park Avenue, between 76th and 77th Streets, in the Borough of Manhattan, City of New York, at about 8:40 p. m., that the plaintiffs returned to the car at about 9:30 the same evening and were unable to move the car because of the defendant's having double parked his car at the side of theirs, that his act was in violation of law, that in consequence of his act the plaintiffs were unable to leave until the defendant returned and moved his car, and that the plaintiffs thereby suffered discomfort and inconvenience and were damaged in the amount of $ 25.

Supreme Court of New York, Appellate Term, affirming:

the defendant was a physician :D

While I'm in the first appellate case: At the trial the plaintiffs sued for only nominal damages and the trial court awarded them judgment for six cents. :D

It was apparently a pissing contest between two guys with time on their hands.

Here's a chunk from the lower court on the various theories:

The plaintiffs suggest with commendable candor that the amount of damages is unimportant. Though they seek to recover the sum of $ 25 for the discomfort and inconvenience to which they were subjected, they will readily accept less. The measure of damages is, indeed, to be disregarded on this motion. If the plaintiffs have a cause of action, they would be entitled to nominal damages even though they adduced no proof as to damages at the trial. Cimino v. Snider Packing Corp., 134 Misc. 284, 235 N.Y.S. 158. What they desire is a judicial declaration of civil liability on the part of the defendant for his act committed in the circumstances alleged in the complaint.

* * * *

Unreasonable interference with the right of a person to travel on the king's highway was always considered a tort. Is it less so today?

There are a number of decisions which indicate that one who is lawfully in his motor vehicle on the public highway has a right to travel in his vehicle and that if the path of his vehicle is obstructed the act constitutes false imprisonment without regard to whether there is any restraint on the personal liberty of the motorist. National Bond & Investment Co. v. Whithorn, 276 Ky. 204, 123 S.W.2d 263.

Where it was shown that the defendant removed the water from the radiator of an automobile and did not refill the radiator until he was ready to permit the plaintiff to depart, it was held that the defendant was responsible for such restraint. Cordell v. Standard Oil Co., 131 Kan. 221, 289 P. 472. The duration of the restraint is not material, for the tort is complete with even a brief restraint of the plaintiff's freedom of movement.

These cases, however, suggest that the right of recovery is for false imprisonment, and this court, unfortunately, has no jurisdiction of an action for false imprisonment. See New York City Municipal Court Code, § 6. The plaintiffs, aware of this barrier, urge that the defendant's act was tortious and that their cause of action is based on the ground of nuisance.

There was a time when it was essential under the Anglo-Saxon administration of justice, to which we owe so much, to appeal to the King's secretary or chancellor for a writ. The writ was a privilege, obtained by purchase, whereby the suitor could avail himself of the King's justice. The variety of these writs was limited, and when the devising of new writs became infrequent their issuance became a matter of routine and was attended to by the chancellor's clerks. Later the issuance of writs became so mechanical that suitors were unable to induce the clerks of chancery to formulate new writs to meet new cases arising out of changing economic and social conditions. Parliament had to remedy this situation. Today, juridical philosophers delight in emphasizing the maxim, ubi jus ibi remedium. Where there is a wrong there is a remedy.

Violations of the kind here presented are undoubtedly an evil. They create increasing hazards for the pedestrian and the automobilist. Life itself, complex and often burdensome, becomes increasingly so because of the acts of the thoughtless or heedless.

The courts of this state, including the Court of Appeals, have not hesitated to hold that in the case.an obstruction in the public highway is a nuisance. Delaney v. Philhern Realty Holding Corp., 280 N.Y. 461, 465, 21 N.E.2d 507, 509; McFarlane v. City of Niagara Falls, 247 N.Y. 340, 343, 160 N.E. 391, 57 A.L.R. 1. Recently the Appellate Term in this department, in Sive v. Papillo, 1 decided May 3, 1951, affirmed a judgment for the plaintiff rendered by the Small Claims Part of this court in circumstances somewhat similar to those here presented. In that case the plaintiff had also parked properly along the curb of a street in the Borough of Manhattan, and when he sought to drive away he found his car blocked by two cars which were double parked and, in his effort to squeeze his way out between these cars he caused damage to his own car for which he sued and recovered. (See New York Times, May 6, 1951.) Though the amounts involved were small, the courts did not hesitate to impose a new rule of liability for double parking.

A statement made by Judge Peckham in a case decided by the Court of Appeals in 1889, Cohen v. Mayor, etc., of New York, 113 N.Y. 532, 535-536, 21 N.E. 700, 701, 4 L.R.A. 406 is pertinent: 'The storing of the wagon on the highway was a nuisance. The primary use of a highway is for * * * permitting the passing and repassing of the public; and it is entitled to the unobstructed and uninterrupted use of the entire * * * highway for that purpose * * *. The highway may be a convenient place for the owner of carriages to keep them in, but the law, looking to the convenience of the greater number, prohibits any such use of the public streets. The old cases said the king's highway is not to be used as a stable-yard; and a party cannot eke out the inconvenience of his own premises by taking in the public highway.'

Indeed, neither the king's highway nor the public highway is to be used as a 'stable yard' for vehicles. The discomfort and inconvenience caused to the plaintiffs by the act of the defendant are valid grounds for recovery, and I hold that the complaint herein states a cause of action. The defendant's motion for judgment on the pleadings is therefore denied.

So it seems that at least two reasons for the choice of theory were:

1. The chosen forum had limited jurisdiction.
2. Previous cases seemed favorable.

BTW, I was wrong. The court that reversed this opinion said:

Per Curiam. In this action for civil damages in plaintiffs' favor against defendant for double parking, the determination of the Appellate Term affirming an order and judgment of the Municipal Court in plaintiffs' favor should be reversed and complaint dismissed, with costs in all courts, on the ground that under the circumstances disclosed, defendant's act was not of such duration as to constitute a nuisance, and accordingly no sufficient basis for any actionable damages to either plaintiff was alleged or established. Settle order on notice.

You might also find Liability of owner or driver of double-parked motor vehicle for ensuing injury, death, or damage, 82 A.L.R.2d 726 interesting.

[Randy Seltzer]

:D

It was apparently a pissing contest between two guys with time on their hands. Do not fuck with us lawyers.You might also find Liability of owner or driver of double-parked motor vehicle for ensuing injury, death, or damage, 82 A.L.R.2d 726 interesting. God; gotta love the ALR. They've got articles on everything.

The only two relevant cases from that ALR article are the one you mentioned, and Salsbury v United Parcel Service 120 NYS2d 33 (1953). In which the court finds negligence (when a lady tries to pull out past a double-parked UPS truck, and bangs up her fender)! Crazy, since I would think this would be considered an intentional tort, where negligence needn't apply.

This has inspired me to do some digging, and I'm having a rough time coming up with a double-parking case where the tort was 'trespass to chattels,' and the chattel wasn't harmed. Odd, since my torts professor claims that you needn't show harm to your chattel if you can prove that you were deprived of it for a significant amount of time. (depending, of course, on the jurisdiction)

"The Straight Dope: It's great practice for your Legal Research class!TM"

[Gfactor]

This has inspired me to do some digging, and I'm having a rough time coming up with a double-parking case where the tort was 'trespass to chattels,' and the chattel wasn't harmed. Odd, since my torts professor claims that you needn't show harm to your chattel if you can prove that you were deprived of it for a significant amount of time. (depending, of course, on the jurisdiction)



What makes this hypothetical atypical of a trespass to chattels case is that in this case, there is no dispossession in the property--it hasn't been taken away or inactivated in some way (compare the case where the captor takes the water from the radiator). I get that it's been applied to servers and there are some other special cases, but I don't think that most lawyers were thinking trespass to chattels. The parts I removed from the case talk about the applicability of a municipal ordinance that banned double parking. So if Mr. Harnick was a trial lawyer (I don't know if he was) or knew some he'd be looking at it like a negligence per se case.

To me, it looks like the most relevant caselaw is on trespass to easmentL e.g. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=228246&invol=o01, (injunction, not damages, where no actual damages proven).

[Randy Seltzer]

What makes this hypothetical atypical of a trespass to chattels case is that in this case, there is no dispossession in the property--it hasn't been taken away or inactivated in some way (compare the case where the captor takes the water from the radiator). I get that it's been applied to servers and there are some other special cases, but I don't think that most lawyers were thinking trespass to chattels. Right, that's why I chose it: I wanted to explore just how far "trespass to chattels" goes. The Restatement says it can be invoked any time the owner is deprived of his stuff for a substantial time. But it seems that you are absolutely correct in that it's rarely applied in this way, in a strict sense.

[garygnu]

How would all this work with a Home-Owners' Association and common areas?

(I'm more interested in how it relates to direct solicitation rather than flyers, but I would appreciate both answers.)

[Gfactor]

How would all this work with a Home-Owners' Association and common areas?

(I'm more interested in how it relates to direct solicitation rather than flyers, but I would appreciate both answers.)

Private restrictions are probably ok.

http://www.cfac.org/AGOpinions/opinion_97_1005.html (even under California's more generous Pruneyard standard, condominiums, apartment buildings, and mobile home parks may prohibit uninvited, nonresident political candidates from distributing their campaign materials door-to-door).

And see, Golden Gateway Ctr. v. Golden Gateway Tenants Ass'n, 26 Cal. 4th 1013; 29 P.3d 797; 111 Cal. Rptr. 2d 336; 2001 Cal. LEXIS 5598 (2001) (apartment complex could prevent tenant's association from distributing unsolicited newsletters): http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/26/1013.html

[lawoot]

I have a "No Soliciting" sign on my door (I'm a night worker), and yet I still have people coming to my door. If I happen to be awake (and dressed) when they knock, I'll open the door, point to the sign, and slam the door in their face. I had one guy who tried to argue with me, as he wasn't 'selling' anything, he was just 'taking a survey' about siding. I'm guessing that he was an advance man for a siding company.