1. INTENTIONAL TORTS A. ASSAULT i. G/R: An Act with intent to cause reasonable apprehension of imminent harmful or offensive touching ii.

Elements 1. Intent a. Intent / substantial certainty (to battery but battery fails and you cause fear & to cause fear) b. transferred intent 2. Apprehension a. P must be Aware b. Threats Conditioned on legal right ok 3. Actual/Proximate Causation & General Damages iii. Defenses 1. Consent -- check scope! a. Actual given b. Apparent - hockey c. Implied RPP: think ok to touch on subway 2. Defense of a. Self reasonable force to protect & reasonable mistake ok b. Other reasonable mistake of their danger ok but negligent not c. Property must give warning and response time unless clear youll be dead, & only deadly when you reas. believe its necessary and no other options B. BATTERY i. G/R: Intentional Harmful or offensive touching of another without consent ii. Elements 1. Intentional Act a. Intent / substantial certainty (intent to touch & intent to cause fear but result is a touch) b. transferred intent 2. Harmful/offensive touching a. RPP b. P doesnt have to be aware c. P or dog on leash-horse-dish-cane 3. Actual/Proximate Causation & General Damages iii. Defenses 1. Consent (same) 2. Defense of (same) C. FALSE IMPRISONMENT i. G/R: Intentional physical or psychological confinement of another within fixed boundaries. ii. Elements 1. Intent a. Intent / substantial certainty b. transferred intent

2. Confine a. Does P feel free to leave? b. P must be aware - but split allows if damages c. Threats are enough & time irrelevant 3. Bounded area a. No reasonable means of egress b. but no duty to escape 4. Actual/Proximate Causation & General Damages iii. Defenses 1. Consent 2. Defense of 3. Lawful Arrest 4. Shopkeeper Privilege (Reasonable TGIF) D. IIED i. G/R: Intentional extreme or outrageous conduct that causes severe emotional damage. ii. Elements 1. Intent a. Intent / substantial certainty or reckless disregard of high probability of result b. transferred intent 2. Conduct a. Beyond decency includes repetitive harassment & non imminent physical threats b. Lower Standards - known sensitivities of fragile class, common carries, & when in public 3. Actual/Proximate Causation & General Damages iii. Bystander Cases 1. b/s at scene & perpetrator knows it 2. injury: close relative b/s can for severe emotional damages; non-close relative needs physical injury iv. Public Figure Suits 1. Actual Malice intent required (knowledge / reckless disregard for provably false st) E. TRESPASS TO LAND i. G/R: Intentionally enters land without permission. D need not cause damage. (+ place chattel & stay after permission revoked) ii. Elements 1. Intent a. Intent to be where youre standing b. Cant be if you had no other choice or if it was involuntary 2. Causation & Damages a. If Regular Trespass: i. General Damages: 1. If harm , DIV or Replacement costs. 2. If no harm, Nominals (diff. than negligent trespass & nuisance which both require damages) ii. Restitutionary Damages 1. Legal ejectment or unjust enrichment

2. Equitable - CT or EL iii. Equitable Damages 1. Injunction: to avoid multiplicity of suits or continuing trespass b. If Trespass causing Severence: i. General Damages: 1. DIV attributable to severance; or conversion ii. Restitutionary Damages 1. Legal Replevin, or quasi-contract 2. Equitable CT or EL iii. Equitable Damages 1. Injunction: because land is unique c. If Trespass is Encroachment: i. General Damages: 1. Rental value, or FMV if permanent encroachment ii. Restitutionary Damages 1. Legal unjust enrichment iii. Equitable Damages 1. Injunction: if in bad faith then permanent injunction to tear down; if innocent then balance iii. Defenses 1. Consent 2. Necessity a. QP to reasonably interfere w/ property to avoid great harm to self or others -b. Public when to protect community, complete def. c. Private when to protect self or 3p, incomplete def. 3. Entry to recapture Chattel a. QP to recaptures chattel that entered w/o Ds fault, incomplete def. 4. Entry to Abate a Nuisance a. Demand made, entry & force reasonable F. TRESPASS TO CHATTEL i. G/R: Intentional interference with the use or possession of another persons chattel. ii. Elements 1. Use/Posession a. harming their use if they have possession = vandalism, climbing on a dog b. making them altogether lose possession, time/mistake of ownership irrelevant 2. Causation & Damages a. General Damages i. DIV, Repair costs, or Rental Value b. Restitutionary Damages i. Legal Replevin ii. Equitable CT or EL iii. Defenses

1. Consent 2. Defense of 3. Necessity CONVERSION i. G/R: Intentional exercise of wrongful dominion or control over anothers chattel so substantial that the D should be required to pay the full value of the chattel. Because of this forced sale remedy, a P need not show that damage was done to the chattel. ii. Elements 1. Wrongful Dominion/Control a. Theft / destruction 2. Damages BFPs are liable a. General Damages: i. Forced Sale - value at time & place of taking + interest and expenses b. Restitutionary i. Legal replevin ii. Equitable CT or EL c. Equitable i. Injunction iii. Defenses 1. Consent 2. Necessity 2. DEFAMATION & PRIVACY A. DEFAMATION i. G/R: Defamatory statement of or concerning P published to a 3P that results in damage. ii. Elements 1. Intent Requirement a. General Rule i. Negligence - D negligent in not ascertaining that the statement was false. b. Actual Malice i. Matter of public concern or Public figure (achieved pervasive fame or volty central role in a controversy) ii. Actual Malice: knowledge of falsity --or-- Reckless disregard of its falsity (D entertained serious doubts) 2. Defamatory Statement a. Adversely affects reputation; lowers esteem in community b. On its face --or-- per quod (need ext. facts) c. opinion, unless opinion implies undisclosed defamatory facts 3. Of or concerning P a. RPP understands it refers to P b. Not by name ok, P has burden to prove reference c. P must be alive d. Group Def: must be a small group. 4. Publication to someone other than P a. Must be intentional or negligent & understood by the person its published to (foreign language scenario)
G.

b. Each repetition = separate publication 5. Damages a. Presumed for i. Libel (written defamation, including audio & video) ii. Slander Per Se (talking defamation, but of a specific type) 1. Crime, Loathsome Disease, Chastity/Impotence, Fitness to operate business b. Must show Pecuniary Loss (concrete economic harm) for i. Slander, in general iii. Defenses 1. Consent 2. Truth a. Substantial (not total) truth is a complete defense; burden is on the defamer to show truth. 3. Privilege a. Absolute i. Statements by Legislature at Legislative proceedings, by Parties at Judicial proceedings, Government officials in their jobs, & Communication between spouses b. Qualified lost if D acts with malice or excessively publishes i. To protect his own interests if def relates to them (D tells cops hes suspicious P stole bag) ii. To protect the interests of the recipient, as long as its w/in the accepted standards of decent conduct (old boss to new boss about employee) iii. To protect the Public Interest 1. Socially Useful + Relevant +Good Faith c. Press: Fair reporting of a public meeting i. Accurately describes Statements made in Public proceedings iv. ****Watch for IIED
B.

PRIVACY i. Misappropriation of Name/Likeness 1. Unauthorized Use of Ps identity/likeness, 2. That was used for a Commercial Advantage 3. Causation & Damages ii. Intrusion upon Seclusion 1. Intrusion on ones REOP (must be private place - no public intrusions) 2. Where the Prying is objectionable to a RPP 3. Causation & Damages iii. Public Disclosure of Private Facts 1. A Highly Offensive disclosure (to a RPP) 2. Of Private facts 3. with Publicity (Widespread disclosure), and 4. Causation & Damages 5. Truth No Defense iv. Portrayal in a False Light

1. A Highly Offensive attribution to P (to a RPP) --- If public figure, Actual Malice applies 2. Of views he doesnt have or actions he didnt take 3. with Publicity (Widespread disclosure), and 4. Causation & Damages 5. Truth is a defense v. Defenses 1. Consent 2. Defamation Privileges vi. ****Watch for IIED 3. NEGLIGENCE A. DUTY i. G/R: Duty to act as reasonably prudent person (RPP) under circumstances (look to custom) B. SPECIAL DUTY RULES i. Special Actors & Duty 1. Children 5 to 18: act as those of like age & experience, unless engaged in an adult activity 2. Adults with Disabilities RPP with that diagnosis, but no allowance for retardation or mental illness 3. Experts: in accordance w/ their field 4. Common Carrier : general higher standard ii. Landowner 1. Duties Outside Land a. Natural hazardous conditions: no duty b. Artificially created hazardous conditions: if knew/shouldve, take care to prevent unreasonable risks of harm 2. Duties Inside Land a. --Trespasser-i. Undiscovered no duty ii. Discovered take reasonable care for their safety (post a warning) b. --Infant Trespassers-i. Attractive Nuisance Doctrine 1. If l/o knew of children trespass and he has an unreasonable risk in an artificial condition that the children couldnt appreciate, then balance utility or condition v. risk to kids. 2. No req. of damages, can get injunction to fix condition. c. --Licensee-i. Def: w/ consent but w/o business purpose -- includes EMS ii. Duties: Dont have to inspect for unknown dangers, Do have to warn against those dangers he knows of, and dont be negligent towards them d. Invitee-i. Def: w/ business purpose, or if land is open to the public & theyre there for that purpose ii. Duties: Do have to inspect to find unknown dangers & take action to remedy both them and those dangers you know of, and dont be negligent towards them iii. Lessor 1. C/L: No duty to lessee

2. M/L: Liable to lessee for risks they knew/shouldve knew about, not known to lessee. iv. NIED 1. G/R: Duty to avoid causing emotional distress to another. 2. Elements a. Has to involve physical harm: i. Emotional distress from physical harm, or ii. Emotional distress that turns into physical harm (miscarriage) b. Or has to be: i. Erroneous report of relatives death, or ii. Mishandling of corps 3. Bystander Cases a. Split: zone of danger or observe the harm v. Firefighters Rule 1. Cant sue for injury resulting from reason EMS was there vi. Omissions 1. G/R: There is no affirmative duty to act. There are, however, exceptions: a. Special Relationship (e.g., school; common carrier), b. Instrumentality Under Ds Control, c. Statutory (e.g., hit and run), d. Creation of Peril, e. Voluntary Undertaking (cant leave them worse off), f. P and D are co-ventures in a common pursuit (warn or aid each other) vii. Negligence Per Se 1. G/R: If a statute establishes liability, it conclusively establishes standard of care. 2. Elements a. Duty and Breach if: Class of Persons & Class of Risk b. Causation and Damages 3. Defenses a. D was unaware of the factual circumstances that made the statute applicable b. Reasonable and diligent attempt to comply
C.

BREACH i. Ask what was the specific wrongful behavior that flows from the duty (e.g., He breached duty when he drove after drinking.) ii. 4 ways to show breach: Direct: Failed to meet standard, exposing others to unreasonable risk of harm; Circumstantial (e.g., tear in carpet); Negligence Per Se (see above); or Res Ipsa. iii. Res Ipsa Loquitur -- Duty and Breach if: 1. Does not normally occur absent negligence, 2. More likely than not that D was responsible -- look to Ds level of control, and 3. P did not contribute to own injury D. ACTUAL CAUSE i. There is a logical chain of events from the negligence to the damage ii. G/R: D is the actual cause of Ps harm; But for

iii. Multiple Fault 1. Alternate Causes two acts but it isnt known which caused: burden shifts to Ds to prove which did it, otherwise they are j/s 2. Substantial Factor two wouldnt have caused harm individually but did when combined, j/s as substl factors E. PROXIMATE CAUSE i. Legal fiction to prevent limitless liability Think, Is the harm caused the type of harm that makes Ds conduct tortuous? ii. GR: D is liable for all foreseeable harmful results of his conduct; cuts off liability when results are unforeseeable, even though D is the b for cause. iii. Eggshell 1. You take the P as you find them. 2. So, if P has a pre-existing medical condition and you worsen it, you are liable for that worsening iv. Forseeable 3P Plaintiff 1. D is liable if D breaches a duty of care to a P and causes injury to a second party who is w/in the geographic zone of danger v. Intervening causes 1. Resp. for all Direct results 2. Resp. for some Indirect results a. Dependent Intervening (some other injury that came to pass because of your negligence) i. Foreseeable (if a rescuer aggravates an injury) Y [supersedes] ii. Unforeseeable (i.e. gross negligence) - N b. Independent Intervening (some other injury that came to pass independent of your negligence) i. Foreseeable (if Ds conduct increased scope of risk, i.e. God/Animals/3P Neg) Y [supersedes] ii. Unforeseeable (things not within the scope of risk) N F. DAMAGES i. Liability Issues 1. J/S a. Applied when there is an indivisible harm. b. Contribution to Ds who pay more c. Indemnification if one Ds conduct intentional and others not. 2. Apportionment a. D1 liable for first injury, D1 and D2 j/s for second injury. ii. Recoveries 1. General Damages: a. Ex.: direct loss & out of pockets, Pain & Suffering; Loss of Enjoyment; Future Damages (adj. for present value) 2. Punitive: a. Due Process protects D against excessive awards; presumption that compensatory makes P whole. b. if willful or wanton conduct, then weigh i. Wrongfulness or reprehensibility of the conduct ii. Proportionality to actual damages iii. Wealth of the defendant G. DEFENSES

i. Comparative Negligence Doctrine 1. Pure fault doesnt prevent; Partial only if fault isnt >/= Ds 2. Imputed Comparative Negligence: impute only if both ways rule a. A employs B to drive truck. A sues C for damage to As truck, driven by B. If C could assert comparative negligence against B, it can impute that to A. Note: cant impute parent to kid or kid to parent. ii. Assumption of the Risk 1. Express assumption -- complete bar (but unconscionable or against public policy) 2. Implied Assumption reduction, not a complete bar (p. 69 v. p. 23) (knowledge of & voluntary encounters risk) 3. Note: Rescuers never assume the risk. 4. STRICT LIABILITY A. ANIMALS i. Trespass Liability always, no matter type ii. Non Trespass Liability 1. Wild: owner or keeper s/l for any harm caused by animals dangerous propensities 2. Domestic: owner or keeper not s/l unless they had knowledge of dangerous propensities unique to his animal (not species) B. ULTRAHAZARDOUS i. G/R: One who maintains an abnormally dangerous activity may be liable despite exercise of reasonable care when damage results ii. Elements 1. Ultrahazardous Activity a. Activity involves a risk of serious harm (e.g. acid, blasting, toxic chemicals, radiation) b. Unable to eliminate the risk w/ reasonable care c. Activity is uncommon in area where its carried out 2. Balance: danger v. value to community 3. Actual/Proximate Causation & General Damages a. Note: only the person carrying out the activity is s/l. iii. Defenses: 1. Assumption of the Risk iv. ****Triggers V/L + I/C + Nuisance 5. VICARIOUS LIABILITY a. G/R: Imputes negligence from one to another bce of a special relationship B. RESPONDEAT SUPERIOR i. G/R: The ER is vicariously liable for the torts of the EE that occurred w/in the course & scope of employment ii. Elements 1. Course a. Action must be authorized, or further masters business (= bill collector or bouncer in a bar, personal motives). 2. Scope a. ER is not v/l for harm caused during major deviations (frolics) but is v/l from harm caused during minor deviations (detours) iii. Borrowed Servant Rule 1. If you borrow servant, its like theyre your employee and youre liable iv. ****Negligent hiring/Negligent Supervision

INDEPENDENT CONTRACTOR i. G/R: Principal not liable for torts of agent if agent Independent Contractor ii. Elements 1. Job title dispositive 2. Employee = if Employer maintains control of the physical details of your work iii. Exceptions (ER will be v/l for I/C if) 1. Inherently Dangerous Activity 2. Non-Delegable Duty -- Responsibilities so important that employer should not be permitted to transfer the duty to another; issues of fact to be determined by court (ex. maintain roads; fence around constr. area; premises safe for business visitors) iv. Collateral Negligence Rule 1. master is responsible only for risks inherent in the work; not for collateral negligence of independent contractor v. ****Negligent hiring/Negligent Supervision D. JOINT ACTIVITY i. G/R: Each member of a partnership or JV is vicariously liable for torts of another member committed within the scope of the relationship ii. Elements 1. Agreement 2. Common Purpose (must be for business) 3. Equal rights of voice and control (titles dispositive) E. PARENT-CHILD i. G/R: Parent not liable ii. Exceptions 1. Negligent Entrustment 2. Child of known dangerous propensities 3. Child as parents agent (+ parental responsibility laws) F. AUTO i. G/R: Not V/L for conduct of another driving his auto ii. Exceptions 1. Negligent Entrustment 2. Statutory (e.g., Family Purpose Doctrine) 3. Driver as agent (give buddy keys to go get beer) 6. PRODUCTS LIABILITY a. G/R: Products liability refers to the liability of a commercial seller who supplies a defective product that causes personal injury or property damage. B. STRICT LIABILITY IN TORT (UCC THEORY) i. G/R: A commercial seller who places a defective product in the stream of commerce is strictly liable in tort for injuries to persons or properly caused by a foreseeable use of the product. ii. Elements 1. Foreseeable Plaintiff (anyone injured by the product) 2. Foreseeable Use (unless its ridiculous, its a foreseeable use and this is not an issue) 3. Commercial Seller

C.

a. One engaged in the business of selling or distributing products; everyone along the chain that sells that particular type of good. 4. Breach/Defect a. Mfr product not made as Mfr intended b. Design made right but still unsafe i. made as intended, and ii. design is unreasonably unsafe, and iii. a reasonable alternative design would have avoided unreasonably unsafe features c. Warning i. Failure to warn ii. Exception -- Learned Intermediary, for prescription drugs where no duty if doctor is informed of the risk 5. Actual/Proximate Causation & General Damages a. Indemnification remember that non negligent retailers held s/l are entitled to indemnification from mfr iii. Defense 1. NOT contributory negligence, bce this is not a fault based theory. 2. Assumption of the Risk
C.

NEGLIGENCE i. Elements 1. Duty - a RPMfr would have put a safety device on product 2. Breach - the RPMfr didnt put on the safety device 3. Actual/Proximate Causation & General Damages ii. Defenses 1. Comparative Negligence (not a complete defense) 2. AR (a complete defense) D. IMPLIED WARRANTIES (UCC THEORY) i. G/R: The UCC imposes two implied warranties as a matter of l aw. ii. Elements 1. of Merchantability a. When merchants sell the type of goods that they are merchants in, there is an implied warranty of their fair and average quality for their ordinary purpose 2. of Fitness for Intended Use a. If the buyer relies on the sellers statements that the goods will be fit for the buyers particular use. 3. Actual/Proximate Causation & General Damages iii. Defense 1. Comparative Negligence (not a complete defense) 2. AR (a complete defense) E. EXPRESS WARRANTY i. Elements 1. When a seller uses words (promises, descriptions, affirmations), samples, or models that go to the basis of the bargain, the seller has expressly warranted to them. These express warranties can not be disclaimed. 2. Actual/Proximate Causation & General Damages

ii. Defense 1. Comparative Negligence (not a complete defense) 2. AR (a complete defense) f. MISREPRESENTATION i. Intentional (Fraud) 1. G/R: A misrepresentation of material fact made with intent to induce Ps reliance, causing P to justifiably rely to his detriment 2. Elements a. Misrepresentation of Material Fact (words, actions, or concealment) b. Scienter (knowledge of falsity, which is > negligence) c. Intent to induce reliance d. Justifiable reliance (cant justifiably rely on opinion, especially if its sales talk/puffery) e. Damages (must be pecuniary, no emotional distress; usually BOB) f. No defenses 3. Third party recovery (when the misrep. is passed on to another party) a. Allowed if member of a class that d had reason to expect would rely, and b. Transaction is same sort that would be expected to occur ii. Not Negligent Misrepresentation G. INTENT THEORY (BATTERY) i. G/R: Commercial seller is liable for injuries caused by an unsafe product if D intended the consequences ii. **triggers punitives 7. OTHER HIGHLY TESTED TORTS A. NUISANCE i. Public 1. G/R: A substantial and unreasonable interference with a right common to the general public 2. Elements a. Intent -- S/L (if ab/dngr); Intentional conduct (substl certainty & transferred intent); Negligent conduct b. Substantial harm to the public at large c. Unreasonable harm to the public at large i. Harm caused by conduct (interference with its health, safety, or property rights) vs. ii. Utility of the conduct d. Causation and Damages: i. A general injury to the public at large ii. An injury to the P that is different in kind from the injury to the public at large ii. Private 1. G/R: A substantial and unreasonable interference with anothers use & enjoyment of property (dust, smoke, chem) 2. Elements a. Intent -- S/L (if ab/dngr); Intentional conduct (substl certainty & transferred intent); Negligent conduct b. Substantial interference c. Unreasonable interference i. The Harm caused by the conduct (consider neighborhood but dont consider Ps abnormal sensitivities) vs.

ii. The utility of the conduct d. Causation and Damages iii. Remedies 1. General: a. Compensatory for Loss of use and enjoyment (if permanent, use DIV) 2. Restitutionary: A. U/E 3. Equitable (if money wont be enough because its going to continue) a. Injunction: land is unique/avoid multiplicity of suits
B.

MISREPRESENTATION i. Intentional (Fraud) 1. G/R: A misrepresentation of material fact made with intent to induce Ps reliance, causing P to justifiably rely to his detriment 2. Elements a. Misrepresentation of Material Fact (words, actions, or concealment) b. Scienter (knowledge of falsity, which is > negligence) c. Intent to induce reliance d. Justifiable reliance (cant justifiably rely on opinion, especially if its sales talk/puffery) e. General Damages (must be pecuniary, no emotional distress; usually BOB) f. No defenses 3. Third party recovery (when the misrep. is passed on to another party) a. Allowed if member of a class that D had reason to expect would rely, and b. Transaction is same sort that would be expected to occur ii. Negligent 1. G/R: A misrepresentation of material fact which is made with a lack of due care, intended to induce reliance by P (limited to commercial/professional setting) 2. Elements a. Misrepresentation by a D in a Business/Professional capacity in breach of some business duty they have b. Justifiable reliance c. Causation d. General Damages (must be pecuniary, no emotional distress; usually Out of pocket, Contra to above) 3. Third party recovery (limited) a. Only those that the D intended to reach, or b. those who the D knew the recipient intended to reach 4. Defenses (same as negligence) a. Contributory b. Assumption of Risk C. BUSINESS TORTS i. 2 Types 1. Interference with Contract words or actions by D intentionally interfering with existing contract of P, causing damages 2. Interference with Prospective Advantage same

ii. Elements 1. Business relationship b/w p and d 2. D knows of it 3. D intentionally breaches it by interfering w/ contract or prosp. adv. 4. Causation and Damages D. IMPROPER LITIGATION i. If there is: 1. Malicious Prosecution--criminal / Wrongful Civil Proceedings--civil a. Institution of criminal proceedings against P b. That Termination in Ps favor c. Where there is no P.C. d. And an Improper purpose e. + Damages ii. Then Bring 1. Abuse of Process: The use of criminal or civil process for purposes for which it was not intended. a. Intentional wrongful use of process b. For an ulterior motive c. + Damages E. PROFESSIONAL NEGLIGENCE, LEGAL MALPRACTICE i. Produce an expert to show you fell below the community standard of care ii. Use But for test (but for your errors, your client would have had a great chance of winning) 1. To that end, you must prove the case within your case iii. Damages: you have to show the client would have gotten some or more money than they actually received 1. In crim, you show you wouldnt have been convicted/got less time absent the error.

REMEDIES KEY: 1. GENERAL TORT DAMAGES f. General Damages: i. In order to make P whole, they may recover all damages that flow from the negligence as long as they are 1. Causel, 2. Forseeable, 3. Definite & Certain, ii. Subject to: 1. Avoidable consequences doctrine 2. Economic Loss Rule iii. Ex.: direct loss & out of pockets, Pain & Suffering; Loss of Enjoyment; Future Damages (adj. for present value) g. Punitive: i. Due Process protects D against excessive awards; presumption that compensatory makes P whole. ii. if willful or wanton conduct, then weigh 1. Wrongfulness or reprehensibility of the conduct 2. Proportionality to actual damages 3. Wealth of the defendant 2. LEGAL RESTITUTION (for property related torts) h. Legal Remedies i. Quasi-K / Assumpsit 1. For Money 2. P can elect to not pursue general damages in tort and get a judgment to disgorge D of their unjust gains instead. 3. Ex. eggwasher-owner waives conversion and sues to disgorge D of u/e ii. Replevin 1. Recovery of specific personal property acquired unlawfully + damages for lost use 2. To get it: file suit, post bond, sheriff seizes prop, D gets notice/hearing, D can post bond 3. Note: there will never be a protected bfp bce thiefs cant convey title 4. Note: if D keeps posting bond to get back property, go to an injunction iii. Detinue 1. For unlawfully taken property 2. Get lawfully acquired personal property back 3. Ex. Bailee or Valet i. Equitable Remedies i. Constructive Trust 1. G/R: Court imposed obligation on D to convey specific property to P enforceable by power of contempt 2. Requirements: a. No remedy at law (usually bce D is insolvent) b. Tracing: i. Trace into new property, ii. D got title to Ps property by wrongdoing

iii. D then keeps the property or exchanges it for other property c. D is u/e 3. Effect a. D must transfer title and possession of the property back to P, creditors have no claim b. If res appreciates, the P gets that appreciation. ii. Equitable Lien 1. G/R: Lien secured on Ds property to secure payment of debt owed 2. Requirements: a. No remedy at law (usually bce D is insolvent) b. Tracing: i. Trace into new property, ii. D got title to Ps property by wrongdoing iii. D then keeps the property or exchanges it for other property c. D is u/e iii. Choosing 1. If D has used Ps property for improvements or acquired a partial interest in other property, then under CT P would only get a relative interest in those items. 2. So, P should choose the EL so P can get a lien for money in the acquired asset. iv. Tracing Rules 1. P can get an accounting for profits to see what remedy they choose, can get into commingled property 2. Option rule: P can follow her money wherever she chooses v. Defenses: 1. Sale to a BFP w/o notice 2. Laches 3. Unclean Hands 3. INJUNCTION j. G/R: An injunction is a court order. To obtain an injunction a P must show: k. Inadequacy of legal remedy i. Damages are inadequate, there is a continuing harm, an irreparable injury. l. Property Right i. C/L Injunctions only w/ property rights involved ii. ML Personal rights as well m. Feasibility i. Is it feasible for the court to supervise the injunction? ii. If its a positive injunction (make D do something) its much more difficult to enforce w/ a contempt power. n. Balance the hardships (this is where balancing differs) i. TRO 1. Short term decree to maintain status quo no balancing ii. Preliminary 1. Provisional remedy that requires notice & hearing to maintain status quo pending decision on the merits a. p must show likely to succeed on merits +

b. hardship in Ps favor + c. Injunction is Necessary to maintain status quo iii. Permanent: used after decision on merits to enforce ruling. (used mainly for these two torts) 1. Encroaching structure a. If Intentional, no balance necessary b. If not, balance the hardships (harm to P v. hardship to D) 2. Nuisance always balance o. Defenses i. Laches (unreasonable delay + they result in prejudice to the P) ii. Unclean hands iii. Freedom of speech (prior restraints) iv. Criminal act no injunctions for crime