HARMS TO PERSONAL PROPERTY AND LAND

Question 1

HOW DOES LIABILITY FOR PRIVATE NUISANCE ARISE?

Answer 1

Liability for private nuisance arises when a defendant’s interference with the use and enjoyment of the plaintiff’s property is both:substantial – offensive, annoying, or intolerable to a normal person in the community andunreasonable – the severity of the plaintiff’s harm outweighs the utility of the defendant’s conduct.Therefore, a plaintiff who is not bothered by an interference with the use and enjoyment of his/her property can still prevail so long as a normal person in the community would find the interference offensive, annoying, or intolerable (i.e., the interference is still substantial).

Question 2

EXPLAIN RES IPSA LOQUITUR.

Answer 2

Land possessors (the amusement park) generally have a duty to keep their premises safe for invitees (the plaintiff here). A land possessor who breaches this duty and causes the plaintiff physical harm is liable for negligence. If there is no direct evidence of negligence, then the doctrine of res ipsa loquitur permits an inference of negligence when:
the plaintiff suffered a type of harm that is usually caused by negligence of someone in the defendant's position and
the evidence tends to eliminate other potential causes of that harm (e.g., the instrumentality that inflicted the harm was under the defendant's exclusive control).

Question 3

LIABILITY FOR ABNORMALLY DANGEROUS ANIMALS ON YOUR PROPERTY AS PETS

Answer 3

The owner of a domestic animal (e.g., rooster) is generally not strictly liable (i.e., liable without proof of fault) for any physical harm caused by the animal.

However, strict liability will be imposed when:
the owner knew or had reason to know about the domestic animal’s dangerous propensities (i.e., behavior uncommon for its species) and the plaintiff’s harm arose from those dangerous propensities.

Question 4

Harms to Personal Property and Land: Trespass to Chattels
How do you make a tort claim for Trespass to Chattels?

Answer 4

A D is liable for trespass to chattels (i.e. tangible personal property) if he intentionally interferes with the PL’s right to possession by either;

i) Dispossessing the Pl of the chattel; or ii) Using or intermeddling with the Pl’s chattel; or iii) Damaging the chattelIntent: Only the intent to do the interfering act is necessary; the D need not have intended to interfere with another’s possession of tangible property.

Transferred intent applies to trespass to chattels.

Appropriate Pls: An action for trespass to chattels may be brought by anyone with possession or the immediate right to possession of the chattel.
Mistake of law or fact by the D about the legality of his actions is not a defense.

Damages: In a case of dispossession, a Pl may recover:

i) The actual damages caused by the interference;ii) The loss of use; andiii) Nominal damages for the loss of possession, even when no actual harm is established.**In circumstances of use or intermeddling, the Pl may recover only when there are actual damages.

Question 5

HARMS TO PERSONAL PROPERTY AND LAND: CONVERSION
How do you establish a tort case for conversion?

Answer 5

Conversion is intentionally committing an act depriving the plaintiff of possession of his chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the Pl entirely of the use of the chattel.

Intent: Defendant must only intend to commit the act that interferes.
* Mistake of law is not a defense

Interference
* The D interferes with the Pl’s chattel by exercising dominion or control over it. Example of conversion: substantially changing the Pl’s chattel or severely damaging or destroying Pl’s chattel

Trespass to Chattels vs. Conversion - No specific rule. It is a matter of degree of seriousness.

The following factors are considered:

• The duration and extent of the interference;
• The D’s intent to assert a right inconsistent with the rightful possessor;
• The D’s lack of good faith;
• The expense or inconvenience to the Pl; andThe extent of the harm to the chattel
• The more extreme the interference, the more likely the court will find conversion.Damages: Pl can recover the chattel’s full value at the time of conversion. - Can also bring an action for replevin to recover the chattel

Question 6

HARMS TO PERSONAL PROPERTY AND LAND - TRESPASS TO LAND
How does the Pl establish a tort claim for trespass to land?

Answer 6

Trespass to land occurs when the D’s intentional act causes a physical invasion of the Pl’s land.

INTENT: D need only have the intent to enter the land (or to cause a physical invasion) not to commit a wrongful trespass
* The D need not know that the land belongs to another. Mistake of fact is not a defense.

PHYSICAL INVASION:
* The D need not personally enter onto the D’s land; intentionally flooding the Pl’s land; throwing rocks on it etc, will suffice.

APPROPRIATE PLS
Because it is the right to possession that is being protected, anyone in actual or constructive possession of land may bring an action for trespass (e.g. owner, lessee, adverse possessor)

DAMAGES
* No proof of actual damages is required.DISTINGUISH FROM NUISANCE
* Trespass always requires an invasion or intrusion of land; nuisance may or may not involve an intrusion.
* Trespass protects the possessor’s interests in land; nuisance protects the use and enjoyment of land.
* If no physical object enters onto the Pl’s land (D’s floodlights project onto Pl’s land, or damage results from the D’s blasting), then the case is generally treated as a nuisance or strict liability action.

DEFENSES

NECESSITY
* Privilege of necessity available to a person who enters or remains on the land of another (or interferes with another’s personal property) to prevent serious harm, which typically is substantially more serious than the invasion or interference itself.Applies only to intentional torts to property, including trespass to land, trespass to chattels and conversion.Private necessity (partial or qualified privilege)

* Privilege applies if the interference was reasonably necessary to prevent a serious injury from nature or another force not connected to the property owner.

* D is not entitled to exercise the privilege on behalf of another if the D knows or has reason to know that the other person is unwilling for the D to take such action.

* Landowner may not use force to exclude th personDAMAGES: Despite the privilege, the property owner is entitled to recover
* Actual damages, but cannot recover nominal or punitive damagesPublic necessity

* Private property may be intruded upon or destroyed when necessary to protect a large number of people from public calamities such as the spread of a fire, spread of a disease, etc.Privilege is absolute.As long as the D acts reasonably, he is not liable for any damage to the property.

* He is not liable even if the original entry was not necessary, as long as he reasonably believed that the necessity existed.

* Privilege lasts only as long as the emergency continues.

* Privilege available to private citizens or public officials, should the Pl seek to hold a public official personally liable.

Question 7

HARMS TO PERSONAL PROPERTY AND LAND: NUISANCE

Explain what you need to show to bring a successful nuisance claim.

There are two types of nuisance : private nuisance and public nuisance

Answer 7

PRIVATE NUISANCE

• A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land.

PROVE UP:

NATURE OF THE D’S CONDUCT

• INTERFERENCE:
  
  • The interference must be intentional, negligent, reckless or the result of abnormally dangerous conduct to constitute a nuisance.
• APPROPRIATE PLs
  
  • Anyone with possessory rights in real property may bring a nuisance claim.
• SUBSTANTIAL INTERFERENCE
  
  • A substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community
    
    • A person with special sensitivities can recover only if the average person would be offended, inconvenienced or annoyed.
• UNREASONABLE INTERFERENCE
  
  • The interference is unreasonable if the injury caused by the D outweighs the usefulness of his actions.
    
    • Court will also balance the interference with the utility of the nuisance - (cost-benefit analysis)
• DURATION
  
  • Generally, a nuisance is continuous.

DEFENSES TO PRIVATE NUISANCE

• Apart from challenging the elements of nuisance, the defenses available to a D turn on whether the D’s conduct is intentional, reckless, negligent, or abnormally dangerous.
  
  • Pl’s negligence or assumption of the risk may be a defense to a nuisance claim (or reduce recovery) in a comparative-fault jurisdiction.
  • • Regulatory compliance: Fact that D complies with a statute, local ordinance or administrative regulation is not a complete defense to a nuisance action. However, may be admitted as evidence as to whether the interference with the Pl’s use and enjoyment of her land is unreasonable.
  • • Coming to the nuisance
      
      • Generally, not a defense that the Pl “came to the nuisance” by purchasing property in the vicinity of the D’s premises w/knowledge of the nuisance operated by the D.
        
        • The Pl’s coming to the nuisance. does not entitle the D to judgment as a matter of law, but it is evidence that the jury may consider.

Question 8

HARMS TO PERSONAL PROPERTY AND LAND: PUBLIC NUISANCE

What must be proven to make a claim for a public nuisance?

Answer 8

A public nuisance is an unreasonable interference with a right common to the public as a whole Typical examples are air pollution, pollution of the navigable waterways; interference with the use of parts or other public property.

Claim

A private citizen has a claim for public nuisance only if she suffers harm that is different in kind from that suffered by members of the general public (e.g. physical injury). Individual shows that she has been harmed in a special or unique way, different from the general public.

Public official can bring an action on behalf of the public to abate the nuisance – e.g. a state attorney general can sue to enjoin polluting activity that harms public health.

Public authorities can either seek (i) injunctive relief to abate (prevent the continuation of) the public nuisance or (ii) criminally prosecute the D.

Question 9

HARMS TO PERSONAL PROPERTY AND LAND: REMEDIES FOR NUISANCE

Answer 9

DAMAGES

• Usual remedy for nuisance is damages. All resulting harm is recoverable including damages for reduction in the value of real property, personal injury, and harm to personal property.
• • Utility of the D’s conduct:
    * Even if the utility of the D’s conduct outweighs the gravity of the harm, damages (not injunctive relief) may be available if the harm is serious and the financial burden of compensating for the harm would not make the D’s continuing conduct unfeasible.
    * * Continuing nuisance
    * If the nuisance is a continuing one and the court deems it “permanent” then the court will award the Pl all past and future damages, which prevents Pls from returning to the court to collect damages in the future.
    * Occasionally, courts award temporary damages measured by the damages that have occurred prior to trial and within the statute of limitations. Plaintiffs may return to court in the future to collect additional temporary damages if the nuisance continues.
    *
• INJUNCTIVE RELIEF
  
  • If monetary damages are inadequate and the nuisance would otherwise continue, the courts may grant injunctive relief.
    
    • In determining whether an injunction is appropriate, the courts will “balance the equities” –weight the social utility of the D’s conduct against the harm caused to the Pl and others. However, the Ct need not consider the relative hardships if the D’s sole purpose was to cause harm to the Pl or to violate the common standards of decency.
    • • ABATEMENT
• • PRIVATE NUISANCE
    * A person may enter another’s land to abate a private nuisance after giving the D notice of the nuisance and the D refuses to act. The amount of force used may be only that which is reasonable to abate the nuisance, and the PL would be liable for any additional damage.
    * * PUBLIC NUISANCE
    * One who is entitled to recover for a public nuisance has the right to abate that nuisance by self-help, as one would with a private nuisance. However, in the absence of a unique injury, a public nuisance may be abated only by a public authority.

Question 10

HARMS TO PERSONAL PROPERTY - MBE TORTS: CONVERSION

EXPLAIN THE ELEMENTS OF CONVERSION

Answer 10

Conversion is an intentional exertion of dominion or control over the plaintiff’s chattel that so seriously interferes with the plaintiff’s ownership rights that the defendant is liable for the fair market value of the chattel at the time of the conversion. A defendant who initially uses the plaintiff’s chattel with permission commits conversion when the defendant:

• intentionally uses the chattel in a manner that exceeds the scope of permission and
• seriously violates the plaintiff’s right to control the chattel.

NOTE: With a conversion claim, Pl can recover the FMV of the property at the time of the conversion. He cannot also recover loss of use damages. Loss of use damages can be recovered on a trespass to chattel claim where the intermeddling is less for that time period when Pl was without his property.

Question 11

TORTS MBE - TRESPASS TO CHATTELS

WHAT IS REQUIRED FOR THE PL TO RECOVER ON A TRESPASS TO CHATTELS CLAIM?

Answer 11

Trespass to chattels occurs when the defendant intentionally interferes with the plaintiff’s possession of a chattel through dispossession, use, or intermeddling (i.e., causing physical contact). Nominal harm is inferred when the interference is through dispossession. But when the interference is through use or intermeddling, the plaintiff must prove actual damages through one of the following:

• actual harm to the chattel (i.e., impairment of its physical condition, quality, or value)
• substantial loss of use of the chattel or
• bodily harm to the plaintiff (Choice C).

Question 12

MBE TORTS - TRESPASS TO LAND

EXPLAIN THE ENTRY REQUIRED FOR TRESPASS TO LAND

Answer 12

Entry requirement for trespass to land

Defendant must either:

• intentionally enter land (or cause a thing or other person to enter land) or
• intentionally remain on land (or cause a thing or other person to remain on land)

Trespass to land occurs when a defendant intentionally enters—or causes something to enter—another’s land. The defendant need not personally enter onto the plaintiff’s land; physical invasion by an object can be sufficient (Choice A). The defendant need only have the intent to enter or cause a physical invasion of the land—not the intent to commit a wrongful trespass.