great new article by Gfactor about ad flyers.

Thanks dude, for this about unwanted advertising"flyers":

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.

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

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.

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. :wink:

I’ve always liked the name of the tort: “Tresspass to chattel.” Has a lovely ring to it… :smiley:

Thanks. So, are you surprised by the holdings of cases like *Miller * (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:

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

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…

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.


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

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. :smiley:

Regarding spam as trespass to chattel, the California Supreme Court recently collected the cases in Intel Corp. v. Hamidi:

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.

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.

Mais oui. Indeed, the RST is the general rule, and states will deviate from that. Of course, that being said…

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.

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.

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.)

Maybe I’ll write that one next. . . oh wait . . . I already did: :smiley:

[QUOTE=Randy Seltzer 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.[/QUOTE]

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.

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.

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.

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

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.

Here’s a case that held you can sue for public nuisance and possibly false imprisonment.<1122%3ATFIPNL>2.0.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).


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?

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:

Supreme Court of New York, Appellate Term, affirming:


While I’m in the first appellate case:


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:

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:

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.

Do not fuck with us lawyers.

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)

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