Katko v. Briney, 183 N.W.2d 657 (Iowa 1971)

Bertha Briney had inherited a farmhouse in Iowa, though she and her husband Edward had never moved into it. Over the years it had fallen into disrepair, and several break-ins had occurred. He put up no-trespassing signs around the place, but to no avail. Finally, he rigged a booby trap, a “spring gun,” to go off when an intruder opened a bedroom door, and, sure enough Marvin Katko, who had broken in before, tripped the device and took a point-blank shot to the legs. He sued for damages, and the Iowa court ruled that what Briney had done was out of bounds. If he’d been inside when the burglary was in progress, he might have had the green light, but the unmanned device was illegitimate.

Wait! Briney didn’t shoot the man, did he? After all, he’d done what he could to avoid shooting anyone by putting warning signs up. Wouldn’t it be just as reasonable to say that Katko shot himself? And even though Marvin didn’t mean to, he was certainly the one who pulled the trigger. So who did the deed?

We use this case to introduce “action theory,” the study of the proper way to say that someone did something. It might sound like a straightforward matter, but even this little story, often used for inspiration, shows that descriptions count: When three workmen were asked, separately, “What are you doing?” the first responded, “Laying stone”; the second, “Building a wall”; the third, “Building a cathedral.”

To push things a bit, let me play off another familiar tale, a proverb which has taken a number of forms through the centuries:

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

So we might raise the question, who brought down the kingdom? Was it the blacksmith who neglected to place that last nail in its crucial place? Or was it his assistant who dawdled on his errand to get a fresh batch of nails, and who arrived just moments too late since the rider had rush off? And if we can blame the fall of the kingdom on a lazy assistant, how could any of us avoid blame for at least one catastrophe? (One thinks of the so-called “Butterfly Effect.”)

As you might imagine, this has shown up constantly in tort law, the civil law of wrongs. In a famous and influential 1928 case (Palsgraf v. Long Island Railroad), a conductor helped a latecomer on the train, accidentally dislodging his package. Unfortunately, it contained fireworks, which went off under the train, and the explosive concussion and ensuing panic caused a big railway scale to topple over on a pregnant women, who miscarried. She sued the railroad, which (in the days before “strict liability”) escaped penalty since the outcome of the conductor’s innocent act was unforeseen.

The law also has to deal with cases where someone attempts to do something criminal, but it’s logically impossible. For instance, a fellow puts a false side in his suitcase so he can smuggle lace doilies from Belgium back into America. He hope to avoid a tariff on such items, not knowing that, while he was in Europe, the tariff had been repealed. When the customs official discovers the lace in the hidden compartment, he knows the man has tried to break the law, but that there was no longer such law to break. Should he be charged with “attempted theft” in the sense that shooting a corpse would be “attempted murder”?

“Intention” plays a big role in discussions of human action. (Of course, birds do things too, like migrate, but most see a big difference between swallows and Guatemalans making their way to San Juan Capistrano.) Yes, I sneeze, and it may be reported as something I did, but it wasn’t intentional. So should we describe the sneeze as an “action” per se? And how far may an intention extend in describing an action? If you intend a tweet to ruin an authority figure (call him Nigel), and it does, is it fair to say of you, “He brought down Nigel?” How much credit or blame is due one, especially when the prospects were incredibly remote despite the depth of one’s intentions?

And what are intentions anyway? Are they part of a causal chain, like falling dominoes, with your ambition to unseat a celebrity driving you to feverishly key in 280 momentous characters? But what if you’re just horsing around, tossing out something outlandish, meant as a joke? If the consequences of those were the same, would we still describe them both with “He destroyed Nigel’s career”?

Back to Edward Briney’s intentions, he said he didn’t mean to hurt anyone? How might that be? The window with the gun was covered with tin, so intruders couldn’t see what was coming. And there was no sign announcing the presence of a loaded firearm. So his claim seemed empty, unless, that is, we read it very generously to say that he didn’t mean to hurt just anybody who might come along (e.g., surely not a young woman fleeing a rapist and seeking refuge in the old house), and that he hoped the device would never be triggered. But he clearly meant to injure any thief who might venture therein, for, as he testified, he “was mad and tired of being tormented.”

His wife, Bertha, moderated his plan a bit by persuading him to lower the barrel so as to hit the invader’s knees rather than his belly. And that raises the question of group action. May we give her joint credit for maiming Katko, since the couple collaborated? Or, rather, that Bertha and not Edward saved Marvin’s life?

Rich material for philosophical sorting, a topic heavy with implications for praise and blame, reward and punishment.