Remedies under tort law

Question 1

Harms to real property

Answer 1

P generally entitled to damages, an injunction, or restitution

• Mere trespass—nominal, consequential, or even punitive damages
• Encroachment—damages measured by reduction in value of the P’s land (permanent) or cost to remove encroachment and loss of use value (temporary)
• Injury to real property—damages measured by cost to repair injury or cost to replace destroyed property plus loss of use value, or diminution in the value of the property
• Severance—damages measured by reduction in value of the land due to the severance (or based on value of severed items as goods if treated like a conversion)
• Trespass with addition to land—damages measured by loss of use value or cost of restoring land to pre-trespass condition
• Ouster—D may be liable to P for use/possession of P’s land if it results in ouster (interference with possession)
• Interference with easement—damages measured by reduction in value of easement (easement destroyed/injured), or loss of use value during period of interference
• Waste—damages measured by reduction in value of property due to waste or repair cost
• Nuisance:
o Private—damages measured by diminution in value of property due to nuisance (includes past & future interference)
o Public—P must suffer physical harm to himself or real/personal property or pecuniary loss that is different in kind from general public

Question 2

Harms to personal property

Answer 2

• Harm—damages measured by diminution in value or reasonable cost to repair or restore the personal property plus loss of use value (capped at fair market value)
• Destruction—damages measured by market value of property immediately prior to destruction at place of destruction plus interest or replacement cost
• Loss of possession—damages same as harm to personal property (trespass to chattel) or same as destruction to personal property (conversion)

Question 3

Misappropriation of money

Answer 3

P can seek damages for misappropriation through a conversion action and punitive damages (if D acted willfully or with malice)

Question 4

Personal injury

Answer 4

1. Pain and suffering—P entitled to damages for loss of physical abilities, loss of enjoyment of life, illness and/or emotional distress, and P need not suffer pecuniary loss (but must be able to experience pain in order to recover)
2. Medical expenses—reasonable expenses necessarily incurred in treating an injury/illness suffered as a consequence of the D’s tortious conduct (future expenses are recoverable subject to the certainty requirement)
3. Lost earnings capacity—amount of damages is focused on the loss/diminution of the P’s earning capacity, whether employed (actual earnings) or unemployed (loss of opportunity); future earnings capacity is based upon a variety of factors (P’s age, education, employment history, and physical condition)

Question 5

Harms to reputation and privacy

Answer 5

Defamation
• Damages in general—includes damages for emotional distress and economic injuries (e.g., lost income)
• Public figure—P can recover presumed, punitive, and actual damages if P establishes falsity and malice
• Public concern—if D was negligent, P entitled to actual damages only
• Presumed damages—can be recovered by a private person and when subject matter is not a matter of public concern without proof of actual injury

2. Privacy torts—includes damages for emotional distress and punitive damages; presumed damages may apply if constitutional restrictions placed on defamation actions are not indicated

Question 6

Financial harm

Answer 6

1. Intentional misrepresentation (fraud)—damages measured by P’s “loss of bargain” expectancy interest (value of what was promised – market value of what was received) or P’s “out-of-pocket” loss (amount P paid – market value of what was received), plus consequential/incidental, and possibly punitive, damages
2. Negligent misrepresentation—damages based on P’s out-of-pocket loss, plus consequential/incidental damages
3. Interference with contract—general contract damages and also special damages proximately caused by D’s interference
   • Interference with prospective economic advantage usually denied due to lack of reasonable certainty
   • Punitive may be available if D’s actions willful or malicious
4. Trade defamation—only monetary losses (including consequential damages) can be recovered
5. Misappropriation of P’s personality—damages measured by loss of exclusive use of publicity right