Tort Ch. 12 Special Tort Actions

PER SE

"by itself"

EQUITABLE REMEDIES

=are only available where money damages are inadequate and will not make a party whole. =do not involve money damages; instead, the court orders the defendant to do (or, more commonly, not to do) something. =generally equitable remedies are sought to correct a problem. =Equitable remedies are only available where money damages are inadequate and will not make a party whole.

ABATEMENT

=in nuisance cases, abatement is the most common remedy plaintiffs seek. =reduction or decrease of an activity, or complete elimination. =the defendant is ordered to cease, or abate, the nuisance activity =is often permanent

WITH EQUITABLE ACTIONS

there is no right to a trial by jury.d

DEFENSES TO WRONGFUL DEATH ACTIONS

tortfeasor may use any defense applicable to the specific tort that produced the victim's injury. =defenses are available in a wrongful death action just as if the victim were still alive and, as plaintiff, were suing the defendant.

NUISANCE

is an unreasonable or unlawful use of one's real property that injures another person or interferes with another person's use of his or her real property. 1. anything that annoys or disturbs unreasonably, hurts a person's use of his or her property, or violates the public health, safety or decency. 2. use of land that does anything in definition 1

CONTINUING NUISSANCE

is intermittent or periodical and is described as one which occurs so often that is said to be continuing although it is not necessarily constant or unceasing.

COMING TO THE NUISANCE

is not a defense.

PURPOSE OF TEMPORARY INJUNCTIONS

is to protect the plaintiff from further harm if a nuisance is in fact occurring. =plaintiffs often must post bonds to compensate the defendant if the court or jury later decides that the defendant did not engage in nuisance.

REMEDIES

the relief that plaintiffs receive against defendants in lawsuits.

COMING TO THE NUISANCE DEFENSE

-involves the plaintiff who owns or uses land at a location in which the alleged nuisance activity was already occurring. -if the plaintiff came to the nuisance then he or she cannot recover against the defendant.

STATUTE OF LIMITATIONS - PERMANENT NUISSANCE

-when the nuisance is permanent in nature and only one cause of action may be brought for damages, the applicable statute of limitations bars the action if not brought within the statutory period after the first actionable injury. - when the nuisance is continuing and the injury is abatable, the statute of limitations does not run merely from the original intrusion on the property and cannot be a complete bar. - rather a new statute of limitations begins to run after each separate invasion of the property.

TYPICAL FACTS IN WRONGFUL DEATH CASES

1. a tortfeasor commits a tort against the victim 2. the victim dies as a result of the tortfeasor's actions 3. the victim's spouse, children, estate, or person who relied on the deceased person for economic support, or all of them, sue the tortfeasor for wrongfully causing the victim's death.

IN NUISANCE LAW, THE MOST COMMON EQUITABLE REMEDIES

1. abatement 2. injunction, although now money damages are occasionally permitted in nuisance case

CONTEMPT

1. an act that obstructs a court's work or lessens the dignity of the court 2. a willful disobeying of a judge's command or official court order =if the defendant fails to obey a permanent injunction by continuing the nuisance, the court can punish the defendant by holding him or her in contempt.

EXAMPLES OF PRIVATE NUISANCE

1. physical effects on land 2. health hazards or offending the sensibilities and 3. unwanted associations with neighboring uses.

TYPES OF INJUCTIONS

1. temporary injunctions, including temporary restraining orders (TROs) 2. permanent injunctions

ELEMENTS OF WRONGFUL BIRTH ACTIONS

1. usually a form of medical malpractice in which a physician has negligently counseled parents concerning genetic issues. 2. May include cases involving children born with birth defects. 3. damages include parent's medical expenses for unwanted birth and, in some jurisdictions, the costs of raising the child.

ELEMENTS OF WRONGFUL DEATH STATUTES

1.Tortfeasor commits tort against victim, causing victim's death. 2. Victim's surviving spouse and children (or victim's estate) may sue tortfeasor to recover damages under wrongful death statute. 3. Most statutes or courts allow damages for victim's lost lifetime earnings potential and for loss of consortium. 4. Some tort defenses apply in wrongful death actions, depending upon the specific tort the tortfeasor committed against deceased victim.

ELEMENTS OF PUBLIC NUISANCE

1.the tortfeasor's activity that 2. unreasonably and substantially interferes with 3. the public's use and enjoyment of legal rights common to the public.

DEFENSE OF COMING TO THE NUISANCE

=involves the plaintiff who owns or uses land at a location in which the alleged nuisance activity was already occurring. =a defense to private nuisance lawsuits that may be used successfully when a plaintiff owns or uses land at a location in which the alleged nuisance activity was previously occurring. The plaintiff is said to have "come to the nuisance" and thus cannot recover against the defendant. = plaintiff assumes the risk of obnoxiousness from the nuisance activity by coming to the place while knowing that the nuisance is already there, waiting to offend the plaintiff =cannot be used against public nuisances

REMEDIES FOR NUISANCES

Equitable Remedies: 1. Abatement (permanent prohibition against nuisance activity) 2. Temporary injunctions (forbidding nuisance activity during litigation process) 3. Permanent injunctions (used for abatement)

DISTINCTION BETWEEN TRESPASS AND NUISANCE

TRESSPASS is any intentional invasion of the plaintiff's interest in the exclusive possession of his property, whereas nuisance is a substantial and unreasonable interference with the plaintiff's use and enjoyment of his property.

UNDER MOST RULES OF CIVIL PROCEDURE

TRO's may be issued for up to 10 days, while the court convenes a hearing to decide if a nuisance has occured.

ELEMENTS OF PRIVATE NUISANCE

The tortfeasor (defendant) is the land user whose activities offend his or her neighbors. The neighboring land user (plaintiff) sues the tortfeasor for engaging in a private nuisance. 2. The second element in commission of a private nuisance, unreasonable and substantial interference, is the most susceptible to interpretation.

UNREASONABLE AND SUBSTANTIALLY DEFINED

Whether the tortfeasor's use of real estate is unreasonable or substantially interferes with another's land use is defined in terms of offensiveness. The critical question is: How offensive is the tortfeasor's land use?

TEMPORARY RESTRAINING ORDER (TRO)

a judge's order to a person to not take a certain action during the period prior to a full hearing on the rightness of the action. =forbids the defendants from conducting an alleged nuisance activity until a court hearing can be held to determine if the activity constitutes a nuisance.

MIXED NUISANCE

a nuisance that is both public and private. =the greater the number of persons adversely affected by an allegedly offensive land use, the more likely it will be considered a public, as well as private, nuisance.

EQUITABLE RELIEF (REMEDY)

a remedy available in equity; generally nonmonetary relief.

SURVIVAL STATUTE

a state law that allows a lawsuit to be brought by a relative for a person who has just died. The lawsuit is based on the cause of action the dead person would have had. =allow recovery to families of persons killed by tortious actions. =the injured party's claim survives his or her death. = if successful damages are awarded to the decendant's estate.

WRONGFUL LIFE: THE NEW TORT

an action brought by a child, claiming that he or she would have been better off not to have been born, rather than to be born with an impairment. = is typically an action by or on behalf of an unwanted child who is impaired. =preconception tort

PERMANENT INJUNCTION

are abatement orders instructing the defendant to permanently stop doing the nuisance activity. They are usually issued after a trial on the merits, once the trier-of-fact has concluded that a nuisance exists. =usually issued after a full hearing

INJUNCTIONS

are court orders to defendants to cease and desist from engaging in nuisance activities.

LOST LIFETIME EARNINGS POTENTIAL

based upon income at the time of death. This income base is projected over time. The future time period used is normally the victim's life expectancy, which is calculated from insurance actuarial tables. The projected earnings potential is usually adjusted for the victim's projected living expenses, had he or she survived.

MIXED NUISANCE

coming to the nuisance defense is effective against the private nuisance portion of mixed nuisance actions.

PUBLIC NUISANCE

coming to the nuisance is not a defense to public nuisance

NUISANCE DEFINED BY

common law and by statute

OFFENSIVE DEFINED (PRIVATE NUISANCE)

determined by applying the reasonable person standard. Would a reasonable person with ordinary sensitivities find the tortfeasor's land use unreasonably offensive? if so, then the tortfeasor has unreasonably and substantially interfered with the plaintiff's use and enjoyment of his or her land. Therefore, the tortfeasor has committed a private nuisance.

COMMUNITY STANDARD (PRIVATE NUISANCE)

evaluates whether the tortfeasor's land use is unreasonable and a substantial interference with neighboring land uses. The finder of fact, usually a jury, makes this determination.

PERMANENT NUISSANCE

expected to continue but is presumed to continue permanently, with no possibility of abatement. Ex: building or a railroad encroaching on a party's land, the injury is fixed and goes to the whole value of the land.

PRECONCEPTION TORT ACTIONS

generally defined as actions in which the plaintiff is seeking redress for injuries caused by negligent conduct that occurred before the plaintiff's conception.

PUBLIC NUISANCE

is a land that injures the public at large rather than just a single individual. =activity by the tortfeasor that unreasonably and substantially interferes with the public's use and enjoyment of legal rights common to the public. =must harm the general public =almost all public nuisance are defined by statute or ordinance. =gambling, prostitution, sale of alcohol, nudist colonies, distribution of sexually explicit material, toxic waste management.

EQUITY

is aimed at a defendant - the court considers the defendant's knowledge and state of mind - whereas with court awards, money damages are directed toward the plaintiff for a loss caused by the defendant.

DAMAGES

money that a court orders paid to a person who has suffered damage (a loss or harm) by the person who caused the injury.

PHYSICAL EFFECTS ON LAND (PRIVATE NUISANCE)

neighboring land users often complain if a tortfeasor's use of realty creates constant vibrations, pollution of water or soil, destruction of crops, flooding, excessive cluetter, or unwanted excavations.

PUBLIC POLICY BEHIND ABATEMENT

nuisance tortfeasors have injured someone (or if the public, many people). As long as the nuisance continues, the plaintiff(s) will continue to be hurt.

PRIVATE NUISSANCE

occurs when someone 1) uses his or her land in such a way as to 2) unreasonably and substantially interfere with 3) another person's use and enjoyment of his or her land. 4) the defendant's activities proximately causes the plaintiff's injuries. a tort that requires a showing of special harm to you or your property and allows the recovery of damages for the harm as well as an injunction.

TEMPORARY INJUNCTIONS

often used from the time a plaintiff files suit until the first court hearing.

SENSIBILITIES (HEALTH HAZARDS)

people's sensibilities are ways in which their physical senses (sight, hearing, smell, taste and touch) and their emotional senses (what they find disgusting, repulsive, threatening, and so forth) are affected. Private nuisances offend a person's sensibilities. They also create health hazards. Ex: noxious odors, smoke and dust, excessive noise and temperature, toxic tort nuisance, incessant telephone calls.

NUISANCE TYPES

private and public

CONSORTIUM

the rights and duties resulting from marriage. They include companionship, love, affection, assistance, cooperation and sexual relations.

WRONGFUL DEATH STATUTE

statute that allows a lawsuit to be brought by the dependents of a dead person against the person who caused the death. Damages will be given to compensate the dependents for their loss, if the killing was negligence or willful. =give the surviving family members of a deceased tort victim a cause of action against the tortfeasor whose negligence or intentional torts resulted in the victim's death.

MIXED NUISANCE

the same activity constitutes both

NUISANCE PER SE

that which is considered a nuisance at all times and no matter the circumstances, regardless of location or surroundings. =some behavior has violated a statute, and therefore the defendant is automatically liable. =an activity that violates the statute and is automatically considered a public nuisance. =smoking in public where such activity is prohibited. =tortfeasor loses from the start in litigation simply by violating the statute.

USE AND ENJOYMENT

the alleged nuisance activity ruins the pleasure of neighbors gain through the ways in which they use their real estate. Enjoyment imparts an emotional aspect to nuisance law.

WRONGFUL BIRTH

the birth of a child having serious defects that result from a doctor's failure to provide proper information (to advise, diagnose, or test properly) to the child's parents. =lawsuits for the wrongful birth of a child =can be considered another form of medical malpractice, which is a type of negligence.

NUISANCE PER SE

the coming to the nuisance defense is not usually effective against nuisance per se actions.

JUDGMENT FOR ABATEMENT

the defendant must desist from conducting the nuisance activity after a judgment for abatement is entered. =provides complete relief for the plaintiff, because the nuisance activity will be discontinued

POLICE POWER

the government's right and power to set up and enforce laws to provide for the safety, health, and general welfare of the people.

LOSS OF CONSORTIUM

the loss of one or more of a spouse's services.

REMEDY FOR NUISANCES

the means by which a right is enforced or satisfaction is gained for a harm done.

STATUTE OF LIMITATIONS DEFENSE IS ASSERTED

the party moving

PLAINTIFFS IN WRONGFUL DEATH ACTIONS

under wrongful death statutes the surviving family members become the plaintiffs. =some statutes allow the victim's parents or siblings to become plaintiffs =the victim's estate may also be permitted to sue the defendant for wrongful death damages under some statutes. = some states have a limit on damages for wrongful death.

INJUNCTION

when a court orders a defendant to do or not to do something. =a judge's order to a person to do or to refrain from doing a particular thing.

MANDAMUS

when a court orders a governmental official to perform a nondiscretionary act, this is called a mandamus order. ="we command". =a writ of mandamus is a court order that directs a public official or government department to do something.

MONEY DAMAGES

when abatement could impose an unreasonably severe economic burden upon the nuisance tortfeasor, courts have broken the ancient common law tradition and awarded plaintiffs money damages instead of abatement. =courts using this alternative are usually attempting to balance interests between conflicting land uses.