Daily Development for Thursday, September 7, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

TRESPASS; CONSENT: No trespass claim will lie where the landowner has consented to the entry onto the property, even where the consent was obtained by fraud.

American Transmission, Inc. v. Channel 7 of Detroit, Inc. (Mich. Ct. App. 2000).

A transmission repair shop brought a trespass claim against a television station that arranged for an undercover news investigator pose as a customer as part of its investigation of automobile repair shops.

The Michigan Court of Appeals denied the claim on the grounds that the shop owner had consented to the entry, albeit that the consent was fraudulently obtained. The court held that, despite the misrepresentation, no trespass claim could exist because there was no invasion of the specific interests relating to the peaceable possession of land. It noted that trespass "is an unauthorized invasion upon the private property of another." Where the invasion is authorized no trespass.

The court then addressed whether the defense of consent is voided where the consent is obtained by means of misrepresentation. Looking to applicable federal law, the court found that if the entry did not cause interference with the ownership or possession of land, then any misrepresentation does not void the consent defense.

In this case, the undercover reporter only entered the parts of the transmission repair shop that were open to anyone seeking repair services and the reporter only videotaped the shops professional discussions with her.

Comment 1: Compare Special Force Ministries v. WCCO Television, 584 N.W. 2d 789 (Minn. App. 1998), where a TV news reporter misrepresented her employment status and intentions in obtaining a volunteer position at a care facility, and then secretly taped activities at the facility for a new story. The court held that there was a triable question of fact as to whether the consent given to enter the premises extended to the secret videotaping of events occurring at the premises. Moreover, the court also permitted to go forward a cause of action based upon fraud, and recognized a series of potential damage claims, including emotional distress and humiliation.

Comment 2: In the editor's view, both case are correct. Although there probably should be a method for awarding damages when one misleads another in order to obtain an invitation to enter property, there is no sense in altering the fundamental character of the trespass action in order to accommodate the problem. Trespass may be unique among tort actions in that some damages are available for the wrong itself, even where no actual damages are proven. This is because of the special nature of the interest protected. The integrity of one's boundaries has a unique and important value in our society, and it is wise to recognize a special tort action to protect this interest.

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