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15. In an action by the gardener against the golfer to recover damages for the harm to his plantings, the gardener will
A gardener's backyard, which is landscaped with expensive flowers and shrubs, is adjacent to a golf course. While a golfer was playing golf on the course, a thunderstorm suddenly came up. As the golfer was returning to the clubhouse in his golf cart, lightning struck a tree on the course, and the tree began to fall in the golfer's direction. In order to avoid being hit by the tree, the golfer deliberately steered his cart onto the gardener's property, causing substantial damage to the gardener's expensive plantings.
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B is incorrect. The golfer is not legally a trespasser due to the private emergency that caused him to take refuge on the gardener's property. The golfer's privilege to trespass is incomplete, however, so he must pay the gardener for any actual damages to the property as a result of the golfer's actions.
C is incorrect. An act of God is generally used as a defense (superseding cause) in negligence to cut short liability. Instead, the sudden storm created an emergency situation that justified the golfer's intrusion onto the gardener's property. Because it was a personal emergency, however, the golfer is subject to the provisions of the incomplete privilege of private necessity and must pay the gardener for any actual damage to the gardener's property as a result of the entry.
D is incorrect. If this had been a public emergency/necessity there would have been complete privilege with no liability. Private necessity, however, is an incomplete privilege, and the golfer is liable for any actual damages he caused.