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35. If the driver sues the homeowner to recover for damage to the car, is the driver likely to prevail?
A driver was traveling along a highway during an unusually heavy rainstorm when the roadway began to flood. To protect his car from water damage, the driver pulled his car up a steep, unmarked driveway abutting the highway that led to a homeowner's residence. The driver left his car parked in the driveway and walked home, intending to return when the floodwater had subsided. Shortly after the driver started to walk home, the homeowner carefully rolled the car back down his driveway and parked it on the highway shoulder. The floodwater continued to rise and caused damage to the driver's car.
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B is incorrect. The driver was privileged to trespass on the homeowner's land whether or not signs discouraging trespassers had been posted. The question is whether the driver's trespass was privileged by necessity, not whether the driver had been put on notice that he was an unwanted trespasser.
C is incorrect. As explained above, the driver's intentional decision to drive onto the homeowner's property was a trespass, but the trespass was privileged by necessity, and as such, the driver is not liable and may also recover damages to his car.
D is incorrect. There is no applicable privilege for the homeowner to have forcibly removed the car from his property; the driver's privilege prevails and he is entitled to recover damages.