Pg 7 Flashcards
What is the question that you have to ask if you’re trying to give damages for trespass?
Ask if there has been an ouster or a wrongful denial of entry onto the land.
– No: the owner gets nominal damages because there was no loss and he was not deprived of use of his land
– yes: he either gets the repair value if the trespass caused damage, or the rental value for the period of the trespass
If a defendant is hired to build a dam on land, and he needs sand from a quarry that is far away, but he sees sand on a nearby lot, so he uses a conveyor belt to take it and the conveyor belt sits on that land for three months, what happens?
There was a trespass, but the owner would only get nominal damages because there was no ouster since he was never wrongfully denied entry to his land
What is the question to ask when you are giving damages for nuisance?
Whether it is a private nuisance or a public nuisance
What is the extra thing you can sometimes get when you’re giving damages for nuisance?
Stigma damages
What is the question to ask when you’re giving damages for a private nuisance?
If the nuisance can be abated
– yes: it is temporary and then the owner gets the repair value for any damage caused or the rental value for the period of the nuisance
– no: it is permanent and then the owner gets the diminution in value which is the difference between the fair value of the land before and after the injury. The reason is that the cause is fixed and the property will always remain subject to that injury
What is the only situation that a private person can sue on a public nuisance?
When he has suffered damages that are different in kind to those that are suffered by the public. I.e.: if a plant creates fumes that irritate people’s eyes, that is a public nuisance and a public representative can sue on behalf of the public. But if the plaintiff lives next door and the fumes are causing the paint on his house to peel, he can sue for damages because that is different in kind from what the public suffered
What is the standard measure with regard to personal injury?
- monetary damages to reflect what was lost as a result of the injury [earnings or earning potential]
- money spent or liability incurred for medical treatment
- pain and suffering accompanying the injury
What is the focus of a personal injury remedies issue?
The plaintiff’s condition and not how the injury happened
What are the three major things that a personal injury can be based on?
Negligence, strict liability, intentional conduct
Does personal injury include cases of shock to bystanders that watched the tortious harm?
No, because distress is different from physical harm
What are the things that are included in personal injury?
- physical pain and mental suffering
- loss of earnings and earning capacity
- medical expenses
- special expenses due to injury
- future losses reduced to present value
- spouses can have loss of consortium claims
Are personal injury awards usually exempt from taxation?
Yes
Why are personal injury remedies not often tested?
Because it is hard to measure the damages with any certainty. So if we see this on an essay, we are not usually being asked to calculate the damages, just to identify the types of damages the plaintiff can recover
What are the major things you can recover under personal injury?
- pain and suffering
– lost income
– medical expenses - loss of consortium
What is pain and suffering?
Non-economic harms like:
- mental anguish
- distress
- agony
- discomfort
- loss of quality of life
- disfigurement from bodily injury