The Temporal Dimension in Tort Law Richard A
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Trespass Torts and Self-Help for an Electronic Age
Tulsa Law Review Volume 44 Issue 4 The Scholarship of Richard A. Epstein Summer 2009 Trespass Torts and Self-Help for an Electronic Age Catherine M. Sharkey Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Catherine M. Sharkey, Trespass Torts and Self-Help for an Electronic Age, 44 Tulsa L. Rev. 677 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol44/iss4/2 This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Sharkey: Trespass Torts and Self-Help for an Electronic Age TRESPASS TORTS AND SELF-HELP FOR AN ELECTRONIC AGE Catherine M. Sharkey* INTRODU CTION ................................................................................................................ 678 1. SELF-HELP: THE MISSING THIRD REMEDY .......................................................... 679 II. CONCEPTUALIZING SELF-HELP IN CYBERTRESPASS DOCTRINE ........................... 684 A. Self-Help in Plaintiff's Prima Facie Case ................................................... 684 1. Threshold Prerequisite to Invoke Legal Process ................................... 684 2. Liability for Evasion of Self-Help ........................................................ 687 B. Self-Help "Opt-Out" as Affirmative Defense ............................................ -
Trespass to Land in North Carolina Part II -- Remedies for Trespass Dan B
NORTH CAROLINA LAW REVIEW Volume 47 | Number 2 Article 3 2-1-1969 Trespass to Land in North Carolina Part II -- Remedies for Trespass Dan B. Dobbs Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Dan B. Dobbs, Trespass to Land in North Carolina Part II -- Remedies for Trespass, 47 N.C. L. Rev. 334 (1969). Available at: http://scholarship.law.unc.edu/nclr/vol47/iss2/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. TRESPASS TO LAND IN NORTH CAROLINA PART II. REMEDIES FOR TRESPASSt DAN B. DOBBS* Having discussed the substantive law of trespass to land in the pre- ceding issue of this volume, the author now turns to an examination of the remedies available in an action for trespass in North Carolina. A reading of the article suggests that the availability of both legal and equitable remedies affords the North Carolina judge considerable latitude in fashioning relief to fit the particular facts of each case. The author covers the legal remedy of money damages, including stat- utory and restitutionary measures of damages, and the equitable rem- edy of injunction. INTRODUCTION Part I of this article considered the substantive law of trespass to land in North Carolina.** When substantive law determines that a trespass has been committed, there remains the problem of selecting an appropriate remedy. -
Torts -- Trespass to Land -- Unintentional and Non- Negligent Entry As a Defense Wilton Rankin
NORTH CAROLINA LAW REVIEW Volume 36 | Number 2 Article 21 2-1-1958 Torts -- Trespass to Land -- Unintentional and Non- Negligent Entry as a Defense Wilton Rankin Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Wilton Rankin, Torts -- Trespass to Land -- Unintentional and Non-Negligent Entry as a Defense, 36 N.C. L. Rev. 251 (1958). Available at: http://scholarship.law.unc.edu/nclr/vol36/iss2/21 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. 1958] NOTES AND COMMENTS In Flake v. Greensboro News Co.,15 the Supreme Court of North Carolina recognized the right of privacy. But there is no indication in that case as to how the court would hold if confronted with facts similar to those in the Gouldman-Taber Pontiac case. EARmiNE L. POTEAT, JR. Torts-Trespass to Land-Unintential and Non-Negligent Entry as a Defense The early English common law imposed liability for trespass upon one whose act directly brought about an invasion of land in the posses- sion of another. It mattered not that the invasion was intended, was the result of reckless or negligent conduct, occurred in the course of ex- trahazardous activity, or was a pure accident; nor did it matter that no harm resulted. All that seems to have been required was that the actor did the act which in fact caused the entry.- It has been stated by eminent authority that, "The law on this sub- ject is undergoing a process of change. -
UNITED STATES DISTRICT COURT for the DISTRICT of COLUMBIA ______) KAREN FELD, ) ) Plaintiff, ) ) V
Case 1:08-cv-01557-ESH Document 203 Filed 05/08/11 Page 1 of 4 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) KAREN FELD, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1557 (ESH) ) KENNETH FELD, ) ) Defendant. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER At the Final Pretrial Conference held April 21, 2011, the Court requested briefing as to the availability of punitive damages for defendant Kenneth Feld’s trespassing counterclaim in light of the Court’s April 20, 2011 Order [Dkt. No. 171] limiting the defendant to nominal damages for this claim. Having reviewed the parties’ submissions, and for the reasons stated herein, the Court will permit defendant to seek punitive damages for this claim. The parties agree that Maxwell v. Gallagher, 709 A.2d 100, 104-105 (D.C. 1998), sets forth the general rule for the District of Columbia that a plaintiff cannot recover punitive damages unless there is a “basis in evidence for actual damages,” even if only nominal in amount. This is not to say, however, that nominal damages will always give rise to the availability of punitive damages. Under most circumstances, a mere “technical invasion” of a plaintiff’s rights where no actual harm has occurred cannot support punitive damages. Id. (quoting Shell Oil Co. v. Parker, 291 A.2d 64, 71 (Md. 1972)). The Court will permit defendant to seek punitive damages in this case for two independent reasons. First, although the Court has precluded Kenneth Feld from seeking Case 1:08-cv-01557-ESH Document 203 Filed 05/08/11 Page 2 of 4 compensatory damages, it did not decide, as a factual matter, that defendant suffered no actual harm. -
Torts - Trespass to Land - Liability for Consequential Injuries Charley J
Louisiana Law Review Volume 21 | Number 4 June 1961 Torts - Trespass To land - Liability for Consequential Injuries Charley J. S. Schrader Jr. Repository Citation Charley J. S. Schrader Jr., Torts - Trespass To land - Liability for Consequential Injuries, 21 La. L. Rev. (1961) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol21/iss4/23 This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. 862 LOUISIANA LAW REVIEW [Vol. XXI is nonetheless held liable for the results of his negligence. 18 It would seem that this general rule that the defendant takes his victim as he finds him would be equally applicable in the instant type of case. The general rule, also relied upon to some extent by the court in the instant case, that a defendant is not liable for physical injury resulting from a plaintiff's fear for a third person, has had its usual application in situations where the plaintiff is not within the zone of danger.' 9 Seemingly, the reason for this rule is to enable the courts to deal with case where difficulties of proof militate against establishing the possibility of recovery. It would seem, however, that in a situation where the plaintiff is within the zone of danger and consequently could recover if he feared for himself, the mere fact that he feared for another should not preclude recovery. -
Torts Wypadki Fall 2008 Is a Preliminary Version for Use in Studying
Torts Wypadki Fall 2008 Torts I Eric E. Johnson University of North Dakota School of Law This document has not been reviewed by Prof. Johnson for legal or factual accuracy. Preliminary Printing Not Authorized for Exam This copy of the Torts Wypadki Fall 2008 is a preliminary version for use in studying. You may not bring this copy with you to the exam to use as a reference. When you sit for the exam, you will be given a clean printed document, which will be the same as this document, except that this cover sheet will be different, and there may be markings on the interior pages to indicate that such pages are part of the official printing authorized for use in the exam. 1 Fall 2008 Torts Wypadki 2 AUTHORIZED Fall 2008 Torts Wypadki Contents 1 DEFINITIONS/TERMS 2 Intentional Torts 2.1 Generally 2.2 [a] Assault 2.3 [b] Battery 2.4 [c] False Imprisonment 2.5 [d] Outrage / IIED 2.6 [e] Trespass to land 2.7 [f] Trespass to chattels 2.8 [g] Conversion 2.9 Intentional Tort Defenses 3 Negligence 3.1 Generally 3.2 [1] Duty 3.3 [2] Standard of care 3.3.1 General standard 3.3.2 Specific standards 3.3.3 Negligence per se 3.4 [3] Breach of duty 3.4.1 Generally 3.4.2 [a] Determination of Unreasonableness 3.4.3 [b] Proof of Breach 3.4.4 [c] Res Ipsa Loquitor 3.5 [4] Actual causation 3.5.1 Generally 3.5.2 [a] But for test 3.5.3 [b] Substantial factor test 3.5.4 [c] Multiple Necessary Causes 3.5.5 [d] Multiple Sufficient Causes 3.5.6 [e] Burden Shifting and Problems in Cause-In-Fact 3.6 [5] Proximate causation 3.7 [6] Damages 3.8 Negligence Defenses 4 Strict Liability 4.1 Generally 4.2 Elements 5 Other Lineal Tort Issues 2 Fall 2008 Torts Wypadki 3 AUTHORIZED DEFINITIONS/TERMS Affirmative Defense The way a defendant can win even if a prima facie case is proven by the plaintiff. -
Cattle Trespass and the Rights and Responsibilities of Biotechnology Owners
Osgoode Hall Law Journal Article 5 Volume 46, Number 2 (Summer 2008) Containing the GMO Genie: Cattle rT espass and the Rights and Responsibilities of Biotechnology Owners Katie Black James Wishart Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Part of the Environmental Law Commons Commentary Citation Information Black, Katie and Wishart, James. "Containing the GMO Genie: Cattle rT espass and the Rights and Responsibilities of Biotechnology Owners." Osgoode Hall Law Journal 46.2 (2008) : 397-425. http://digitalcommons.osgoode.yorku.ca/ohlj/vol46/iss2/5 This Commentary is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. Containing the GMO Genie: Cattle rT espass and the Rights and Responsibilities of Biotechnology Owners Abstract Genetically modified organisms (GMOs) have caused substantial economic losses by contaminating non- GMO crops and threatening the economic self-determination of non-GMO farmers. After Monsanto v. Schmeiser, biotech IP owners hold most of the rights in the property "bundle" with respect to bioengineered organisms. This commentary highlights the disequilibrium between these broad patent rights and the lack of legal responsibility for harms caused by GMO products. The uthora s propose that there is a role for tort law-- specifically the tort of cattle trespass--in fairly allocating risk and responsibility. The doctrine of cattle trespass reflects a policy of distributive justice, positing that the unique risks associated with keeping living creatures ought to import liability based on the owner's creation and control of those risks. -
Law of Torts and Consumer Protection Bl-2005
B.A.LL.B. II SEMESTER LAW OF TORTS AND CONSUMER PROTECTION BL-2005 TOPIC: Trespass Introduction Trespass is one of the ancient forms of action that arose under the common law of England as early as the 13th century. It was considered a breach of the king’s peace for which the wrongdoer might be summoned before the king’s court to respond in a civil proceeding for the harm caused , because the king’s court were primarily interested in land ownership disputes, the more personal action of trespass developed slowly at first. Around the middle of the 14th century, the clerks of the king’s courts began routinely giving out writs that permitted a plaintiff to begin a trespass action. Before that time criminal remedies for trespass were more common. The courts were primarily concerned with punishing the trespassers rather than compensating the land owner. From the beginning a defendant convicted of trespass was fined; a defendant who could not pay the fine was imprisoned. The fine in this criminal proceeding developed into an award of damages to the plaintiff. This change marked the beginning of tort action under the common law. Meaning and Definition Trespass is the direct interference with another person or his property, which infringes the person’s right to enjoyment of his land, possession of his goods or freedom of movement, Trespass is accountable per se. This means that the claimant only needs to show that the trespass occurred, although it is not necessary to show that the defendant caused any damage or injury. -
Practice Hypotheticals Torts
Practice Hypotheticals Torts Evaluation sheet: “Farmer Dell’s Cornfield” Farmer Dell v. Ben Trespass to land Issue: Whether Ben committed a trespass to Dell’s land when.................................................................................. Rule: “Trespass to land usually requires an intentional entry upon land of another. Intent includes either purpose to enter or substantial certainty that entry will take place.” The object of the intent need not be to “trespass.” Defendant is liable for damages even if no harm is done to the land. See Dobbs, Torts and Compensation, 2d edition. P. 62. Restatement Second of Torts § 158 Liability for Intentional Intrusions on Land One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or(b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove Application: Ben committed trespass because: He had intent to enter Dell’s land because..................................................................................................... He entered the land because........................................................................................................................... Application facts: walked onto Dell’s cornfield; wanted corn for his dinner. Trespass to chattel Issue: Whether Ben committed a trespass to........................................when............................................................. Rule: “Trespass to chattels involves some intermeddling with a chattel of another person, and at times even dispossession, but something short of a conversion.” See Dobbs, Torts and Compensation, 2d edition. P. 66. “Liability is imposed only if the possessor of the chattel suffers dispossession or lost use, or if the chattel or the possessor is harmed. -
18:1 Trespass — Elements of Liability 18:2 Intentionally — Defined 18:3 Consent 18:4 Actual Or Nominal Damages
CHAPTER 18 TRESPASS TO LAND 18:1 Trespass — Elements of Liability 18:2 Intentionally — Defined 18:3 Consent 18:4 Actual or Nominal Damages 18:1 TRESPASS — ELEMENTS OF LIABILITY For the plaintiff, (name), to recover from the defendant, (name), on (his) (her) claim of trespass, you must find that (both) (all) of the following have been proved by a preponderance of the evidence: 1. The plaintiff was (the owner) (in lawful possession of) (insert appropriate description of property); and 2. The defendant intentionally (entered upon) (caused another to enter upon) (caused [insert appropriate description] to come upon) that property. (3. The [insert appropriate description] caused physical damage to plaintiff’s property.) If you find that one of these statements has not been proved, then your verdict must be for the defendant. On the other hand, if you find that (both) (all) of these statements have been proved, (then your verdict must be for the plaintiff) (then you must consider the defendant’s affirmative defense(s) of [insert any affirmative defense that would be a complete defense to plaintiff’s claim]). If you find that (this affirmative defense has) (any one or more of these affirmative defenses have) been proved by a preponderance of the evidence, then your verdict must be for the defendant. However, if you find that (this affirmative defense has) (any one or more of these affirmative defenses have) not been proved, then your verdict must be for the plaintiff. Notes on Use 1. Use whichever parenthesized phrase is most appropriate. 2. Paragraph 3 should be used only when the intrusion onto property is intangible. -
Laura Quilter Tech Writing Seminar Fall 2001 Trespass to Chattel Doctrine Applied to Cyberspace
Laura Quilter Tech Writing Seminar Fall 2001 Trespass to Chattel Doctrine Applied to Cyberspace Briefing Paper (background on trespass to chattel doctrine) I. The Classic Trespass to Chattels Action A. Trespass to Chattels Defined. Trespass to chattels is a common law tort action which provides redress for unauthorized use of or intermeddling with another’s personal property.1 The interference must be intentional; it must be unauthorized; it must be substantial, involving actual harm or a serious infringement of rights, and it must involve physical contact with the property.2 Chattel, or personal property, is defined as physical, tangible property, and is distinguished from both real property and intellectual property. Consent of the owner is a defense to trespass to chattel,3 although the owner can revoke consent, or limit it as to time, place, or other conditions.4 Acting outside the scope of limited privilege may create liability for trespass to chattel.5 Defendants may raise other defenses to trespass to chattel, including a privilege for using public utilities.6 Although trespass to chattel derives from the same historical roots as trespass to land, the two actions have diverged significantly in modern law. While the doctrine of trespass to land continues to play a significant role in the law, trespass to chattel has largely fallen into disuse. Serious infringements to possessory rights have generally been remedied using the conversion doctrine, discussed in Section I.A.3, below. 1 Keeton, W. Page. Prosser and Keeton on Torts, 5th Edition. 1984. Section 14, p. 85; and Restatement (Second) of Torts, §§ 217-218 (1965). -
QUESTION 7 Husband and Wife Were Married in 1993. Their Marriage Has
QUESTION 7 Husband and Wife were married in 1993. Their marriage has been stormy and arguments have been frequent, but there has been no history of physical violence. They separated three months ago, and Wife recently filed for hvorce. Yesterday evening, Husband arrived at Wife's apartment unannounced, pounded on the door, and demanded entry. After a heated argument, Husband grabbed Wife's kitten by the neck, took a knife from a kitchen drawer, and slashed the struggling kitten's throat. Husband held the bleeding, dying kitten in front of Wife's face. When Wife attempted to reach for the phone, Husband cut the cord. After several minutes, Husband dropped the dead lutten onto the bloodstained carpet, rinsed the knife in the sink, and left the apartment. As Husband was leaving, he said: "Unless you drop the divorce action and move back home, the same thing could happen to you. Think about that!" QUESTION: What potential causes of action, in tort, might Wife bring against Husband? DISCUSSION FOR QUESTION 7 In considering A's potential tort causes of action against B, three intentional torts should be considered: 1. Intentional infliction of severe emotional distress; 2. Assault; and 3. Damage to property (conversion and trespass). I . INTERSPOUSAL TORT"IMMUNITYDOES NOT BAR ACTION Although the parties are still legally married, interspousal tort immunity should not operate as a bar. Interspousal tort immunity has been abrogated in most American jurisdictions, and even where it has been retained, it's application is generally limited to negligent, rather than intentional, torts. RESTATEMENT (SECOND) OF TORTS (1977), Sec.