Hypo: The defendant leans against the plaintiff’s car (Neither) Hypo: Defendant takes the car for a joyride against the plaintiff’s will and puts the dog in the front seat with him (Trespass to chattels if the car ride is significant?) Hypo: Defendant, angered at the dog’s barking, the dog, then pushes the car over a cliff, causing substantial damages. (Conversion on the car, trespass to chattels on the dog) Hypo: You take someone’s car keys so they cant drive away. This is probably a trespass to chattel rather than a conversion if the keys are returned in a short amount of time. What Qualifies as a Chattel? - Traditionally: tangible property - School of Visual Arts = unwanted email in large amounts was trespass to chattels Difference in Remedy Between Conversion and Trespass to Chattels 1. Forced “purchase” (or replevin) versus damages - Forced purchase (value of the thing) - conversion - Actual damages (including loss of use) - trespass to chattels 2. Actual (not nominal) damages required for trespass to chattels Conversion: 3-Person Transfer, Fraud, and BFPs - A’s property (1) taken by B who (2) sells to C, a person who does not know of the conversion by B (i.e. C is a BFP) - General Rule: Both B AND C are liable - Exception: C is not liable when B gets title (even through fraud or trickery) as long as C is BFP - B is liable for conversion G. Intentional Infliction of Emotional Distress 1. Intent 2. Extreme and outrageous conduct 3. Severe emotional distress - Intentional Infliction of Emotional Distress is a stand alone tort 1. Intent - reckless disregard is not intent, but is included under Rest. 46 for IIED
Jury - Majority Rule: Jury should be told how comparative fault system works - P or D can ask judge to instruct jury on the finding’s impact on recovery Restatement (Third) and Comparative Fault 1. Nature of the risk-creating conduct, including awareness or indifference with respect to risk 2. The strength of the causal connection 2. Mitigation of Damages/Avoidable Consequences - Rule: P must minimize damages by reasonable efforts and expenses - P must use all reasonable efforts in obtaining medical care (therapy, surgery) - Common Law: not allowed to recover for that portion of the injuries that are avoidable - Restatement: comparative fault - Bexiga Principle: Even if the Plaintiff is negligent, it does not bar recovery because the safety device is supposed to protect the plaintiff from his own negligence. - Some apply Bexiga Principle (no reduction on recovery) - Some Comparative Fault (classic case) 3. Comparative Fault’s Effect on Prior Doctrinal Rules 1. Where P is not negligent 2. P is negligent, but P’s negligence is not the actual cause of the injury 3. P is negligent, but P’s negligence is not the proximate cause of the injury 4. P is negligent, but P’s negligence is a superseding, intervening cause 5. Mitigation of damages 6. Duty to protect P - Bexiga (employer supposed to protect P from his own negligence operating a punch-press) and Christensen (school district/principal obligated to protect plaintiff from sexual abuse) - There may be instances in which, even though P is alleged to be contributorily negligent, the court may find for some sort of policy reason such as the relationship between the Plaintiff and the Defendant where D’s obligation is to protect P or the P is particularly vulnerable, the contributory negligence will not reduce recovery 1. Protect P from themselves 2. Protect P for something someone else do to them
ii. Businesses (Four Rules) 1. Imminent Specific Harm - about to befall P - narrow - if a landowner knows something is imminent (imminent risk) that’s when the duty arises (low odds of this happening) 2. Prior Similar Incidents - previous crimes on or near the premises - someone else is injured in the same crime previously - duty shaped by a risk (you have a duty to act as an RPP with that specific risk) - better lighting, security, etc. - actual or constructive notice - time of previous incidents, location, method, etc. 3. Totality of the Circumstances - nature, condition and location of land, circumstances bearing on foreseeability - much wider - petty crimes can indicate a more serious threat - Hypo: prior to this shooting in the parking lot there was a mugging that didn’t involve a shooting, would this mugging under this totality of the circumstances, would that be enough for a duty to be imposed? - maybe not enough, two would be though - amorphous test 4. Balancing - foreseeability of harm against burden of imposing the duty - Carroll Towing (transported to duty) - high foreseeability, high burden - security guard may be called for - Prosecai v. Wal-Mart (439) - woman shopping, attacked in the parking lot by man under car - many previous offenses near the store - court has wide discretion (much easier if analogous case) - Hypo: woman goes to the Tuscan airport to meet her husband who was coming back from a tour of duty, several months later