Remedies for Selected Tortious Wrongs

Question 1

Conversion occurs where a person:

Answer 1

1. Dispossesses lawful possessor
2. Using chattel in possession in unauthorized way
3. Using chattel pursuant to unauthorized sale
4. Disposing of chattel pursuant to unauthorized sale
5. Refusing to surrender chattel on demand by lawful possessor

Question 2

Baram v. Farugia

Answer 2

Foxey was owned by Baram. Fredella was her trainer and had the authority to enter her in races in Baram’s name. He was also indebted to Farugia and soon Farugia took possession of her with a certificate that Fredella had forged Baram’s name on.

Baram sues for conversion, but acknowledges that he received $3000 from Fredella’s criminal trial, covering the cost of the horse. This was a sort of “forced judicial sale, and title passes to Fredella, so the conversion tort is extinguished

Question 3

Basic Conversion Remedies

Answer 3

1. Pay full value of property at time of conversion (forced sale)
2. Always get 10% postjudgment interest on any kind of award until it is paid
3. Don’t get loss of use for conversion! Get prejudgment interest!
4. Do get Rx expenses for time spent trying to locate lost property
5. Can get punitives if there is O/M/F
6. Can get replevin - get loss of use as decided by Rx rental value
7. Injunction - court maintains jurisdiction, you get item back. Very rarely issued for return of personal property.

Question 4

Trespass to Chattels

Answer 4

1. Dispossessing lawful possessor
2. Impairing the chattel as to its condition, quality, or value, or
3. The possessor is deprived of the use of the chattel for a substantial time, or
4. Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest
5. Negligence causing harm to chattels

Question 5

Compuserve v. Cyber Promotions

Answer 5

CyberPro used Compuserves servers to spam everyone with junk emails.

Trespass can occur by intentionally using or intermeddling with the chattel in possession of another.

Chattel does not have to be physically damages! Having an impact on the value is enough.

Question 6

Terrell v. Tschirn (damages)

Answer 6

Tschirn receives Camaro and makes improvements on it. It goes missing and is found in Terrell’s possession, dismantled.

Car thief had sold it to Terrell, who was guilty of conversion upon buying it.

P has to show value of item when it was converted. Tschirn did not do that, and punitives were not awarded because Terrell’s conduct did not rise to the level of O/M/F

Question 7

DeSpirito v. Bristol

Answer 7

P’s cellar flooded after pipe break

D argues that the full measure of damages for the destruction of or injury to personal property is the difference between its fair market value just before destruction or injury and its fair market value immediately thereafter

General rule is that in proving damages for an injury to or loss of items of personal property the P is usually restricted to testimony which evidences the difference between the before and after fair market values

Question 8

Trespass definition

Answer 8

Interfered with right of exclusive possession of property

Question 9

Nuisance definition

Answer 9

Condition on the defendant’s property that interferes with the plaintiff’s use and enjoyment of the property

Question 10

Nuisance elements

Answer 10

P must prove:

1. that D is engaged in an unRx activity on D’s property, and
2. that the unRx activity substantially interferes with P’s use and enjoyment of P’s property

Question 11

Factors of unRx use in nuisance

Answer 11

Locality, character of the neighborhood, nature of the use, the extent of the injury, and the effect on enjoyment of life.

Question 12

Emotional Distress in Trespass

Answer 12

Only where the trespass was committed “under circumstances of insult of contumely or willfully”

e.g. the douche that dumped asphalt on P’s property seven times

Question 13

Prejudgment interest in trespass

Answer 13

Can get on items other than the emotional distress or punitive damages. Also no for pain and suffering

Question 14

Nuisance Damages

Answer 14

Permanent nuisance: diminution in value. There is also duty to Rx mitigate, and P can get money for mitigation

Temporary nuisance: Diminished rental value during the period of harm, plus cost to repair/abate the nuisance, plus emotional distress, plus punitives if P can show O/M/F, plus prejudgment interest

Question 15

Trespass v. Nuisance damages

Answer 15

Can get damages for the suffering in nuisance. Can also get prejudgment interest, just not on punitives or emotional distress

Question 16

Nuisance Specific Relief?

Answer 16

Injunction!

Question 17

Nuisance factors

Answer 17

1. Amount of harm resulting from the interference
2. The relative capacity of the P and the D to bear the loss by way of shifting the loss to the consuming public at large asa cost of doing business or by other means such as car insurance (???)
3. Nature of P’s use of his property
4. Nature of D’s use of her property
5. The nature of the locality
6. Priority in time