Add. Disc.: Public nuisances are generally determined by statute and local ordinance, such as
noise ordinances. Public attorney, such as AG or county attorney, brings action for public
nuisance based on statute or common law, to protect rights held in common by the general
public. As Justice Cardozo said, “Public is the nuisance whereby a public right or privilege
common to every person in the community is interrupted or interfered with . . .”
Add. Case: City of Virginia Beach v. Murphy (S.Ct., Va., 1990)–Murphy was prosecuted by
the City of Virginia Beach for playing loud music in her restaurant that bothered people outside
of the restaurant. She claimed that she could not be sued for a public nuisance, only a private
nuisance, and that suit would have to be brought by individuals who complained about the
music, not by the city attorney.
Decision: The Virginia Supreme Court said that the right not to be disturbed by unreasonably
loud and disturbing noise is a right in common to the general public. Justice Cardozo once said
Trespass to Personal Property—Intentional and wrongful interference with possession of
personal property of another without consent. This tort deprives the owner of the use of property
for a time. In most states, innkeepers have a privilege to keep the personal property of guests
who have not paid their bills.
Add. Case: Intel v. Hamidi (Ct. App., Calif., 2001)–After Hamidi was fired by Intel, he
obtained its e-mail address list and sent e-mails complaining about the company to thousands of
employees at least six times and refused to comply with Intel’s demand that he stop. Intel sued
him for trespass to chattels, contending that Intel had to spend resources to block and remove
Hamidi’s e-mails from the Intel system, which is governed by company policy. The trial court
held that Hamidi had committed trespass to chattels (personal property) and issued an
injunction against sending further unsolicited e-mails to addresses on Intel’s computers. Hamidi
appealed.
Decision: Affirmed. “Trespass to chattels is somewhat arcane… However, the tort has
reemerged as an important rule of cyberspace…. The most common application is for a physical
taking, even if momentary…. Hamidi’s conduct was trespassory. Even assuming Intel has not
Add. Case: Williams v. Bill’s Custom Fit (Ct. App., Tex., 1991)–Williams, 15 years old, ran
away from a correctional institution with another youth, Veal. They stole a car that belonged to
Bill’s. One of Bill’s employees had left the keys in the car, parked on the street outside of Bill’s.
Williams was riding in the car, driven by Veal, when it was chased by a state trooper and
crashed, leaving Williams a quadriplegic. He sued Bill’s for negligence for leaving the keys in
the vehicle, which enticed the boys to steal the car. The court granted summary judgment for
Bill’s.
Decision: Affirmed. Williams (and Veal) trespassed to personal property. Bill’s had no duty
toward trespassers except not to commit intentional torts, which are not alleged. The attractive
Conversion—Intentional and unlawful control or appropriation of the personal property of
another. Important factors are the extent of control, the length of the control, the damage to the
property, and the damage caused to property owner. Mistake, such a good faith purchase of
stolen goods, is not a defense.
Add. Case: Echelon Homes, LLC v. Carter Lumber (Sup. Ct., Mich., 2005)–Echelon Homes,
a builder, employed Wood as bookkeeper for three years before it was discovered that she was
stealing. She charged $87,000 in materials to an unauthorized account at Carter Lumber. She
used the materials to remodel her home. Carter extended credit based on a credit application
forged by Wood. Echelon sued Carter for aiding and abetting conversion. Under a Michigan
law, a person who buys, receives, or aids in concealing stolen or converted property can be held
liable for treble damages if he knew the property was illegally obtained. Echelon contended that
Carter had constructive knowledge of the conversion and should be liable on that basis.
Decision: For defendant. Constructive knowledge is not sufficient to impose liability under the
statute. The language of the statute is that the person receiving the converted property “knew” it
was stolen (converted). Knowledge is awareness of a fact or circumstance. Constructive
Add. Case: Vanderbeek v. Vernon (Ct. App., Colo., 2000)–Vanderbeek obtained a writ of
attachment and garnished $1 million that was in Vernon’s bank account. The court later
determined that the attachment was improper. It dissolved the writ and dismissed the suit that
had been filed. Vernon sued for lost profits. It contended it intended to use the money to buy a
certain stock, which it did after the funds had been released, but by that time the stock price had
risen. The trial court granted Vernon its costs, attorney fees, and interest lost on the $1 million
while it was attached, but denied the speculative lost profits. Both parties appealed.
Decision: “Damages resulting from wrongful attachment are governed by tort principles.” The
tort is conversion. Ordinarily, damages would be the rate of interest for the period of conversion.
But the victim may also recover damages caused by the wrongful attachment. Damages are not
Add. Case: Sibley v. Adams (Ct. App., Ala., 1975)–Parties owned adjoining land. Adams paid a
logger to cut timber on his property. 52 large pine trees were also cut from Sibley’s property.
Decision: Defendant committed trespass and conversion and was ordered to pay compensatory
and punitive damages. “There was evidence that the area to be cut was clearly marked … Such
Misappropriation—Intellectual property, such as trade secrets, are protected by tort law. The
theft of such property may be called misappropriation. Damages and injunctions are usual
remedies requested. This will be covered under intellectual property in Chapter 9.
Issue Spotter: Protecting Company Property
If employees steal anything it is theft of company property (conversion). They do not need to be
told of this fact, but if employees are on notice about such behavior, then there is even less
justification for it. Any policy should be enforced consistently to avoid possible claims of
discrimination in treatment of employees, but they can be disciplined or fired and the police can
be notified.
TORTS AGAINST PROPERTY OWNERS—Owners of business property generally invite
people to come on the property to possibly buy from the business. As such, there is an obligation
to take certain measures to protect those who enter the property,
Premises Liability—Slip and fall suits, where patrons are injured on businesses property, have
long been common. In most cases, the business has failed to keep the property safe for those who
are invited on the property and expect the merchant to use reasonable care. More recently,
premises liability for those who suffer criminal attacks on business property has become more
common. In a recent case in Connecticut, Bloomingdales paid $1.5 million to the heirs of a
woman who was murdered in a store parking garage that had no security even though it was in a
high crime area.
CASE: DePietro v. Farmington Sports Arena (Sup. Ct., CT, 2012)—Eleven year old DiPietro
was injured when her foot “stuck” on the artificial turf when playing soccer. Her mother sued,
contending the surface was dangerous and defective, although inspection showed no obvious
flaw. Trial court held for defendant; plaintiff appealed.
Decision: Affirmed. DiPietro is an invitee on business property, which must be kept in safe
Questions: 1. Suppose the surface was found not to comply with an industry standard or federal
regulation. Could that have made a difference?
It is not controlling, but the court noted it can make a difference, If a firm is in violation of an
2. Can a business evade responsibility by saying it never knew of a problem?
No doubt this happens, but businesses cannot turn a blind eye to a problem. Evidence from
Add. Case: Campisi v. Acme Markets (Super. Ct., Pa., 2006)—Campisi was shopping at Acme
when she walked around a corner and tripped over a cane carried by a blind employee at the
store. She suffered an injury and sued for premises liability based on negligence, contending the
store should have warned shoppers about the employee. The jury awarded her $115,000; the
trial judge threw out the verdict. She appealed.
Decision: Affirmed. Campisi was a business invitee to the store. She was owed the highest duty
of care to be protected against known dangers and those that would be discovered with
Add. Case: Gallagher v. Union Square Condo (Ct. App., Ill., 2010)—Union Square was
responsible for the maintenance of the common areas of the condos in which Gallagher owed a
unit. Union hired Landscapes for snow removal for the condos, including the driveway. After a
snowfall, Landscapes plowed a single path up Gallagher’s driveway, blocking the garage door.
When Gallagher drove home, because he could not get into the garage, he parked on the street.
When walking up his driveway, he slipped on the ice, fell, and broke his leg in several places. He
sued Union and Landscapes for negligence for not putting salt or snow on the ice and for
creating a dangerous situation. The trial court dismissed the complaint. Gallagher appealed.
Decision: Reversed. An Illinois statute states that whoever owns or is in charge of property and
removes snow or ice from sidewalks “shall not be liable for any personal injuries allegedly
Add. Case: Schmid v. Fairmont Hotel (App. Ct., Ill., 2003)–Schmid was staying at the
Fairmont Hotel. When he flicked on a light switch, he received a shock that caused him to fall
and suffer injuries. He sued Fairmont. The jury found Fairmont liable; it appealed.
Decision: Reversed. Premises liability considers 1) the reasonable foreseeability of an injury, 2)
the likelihood of the injury, 3) magnitude of the burden on defendant guarding against the injury,
Add. Case: Thompson v. Kaczinski (Sup.Ct., Iowa, 2009)– Kaczinski, who lives in rural Iowa,
took apart a trampoline and left it in his yard. Weeks later, a severe storm blew parts of the
trampoline out on the road during the night. Thompson, driving down the road, swerved when he
saw the parts in the road, lost control, and rolled his car. He and his wife were injured and sued
Kaczinski for negligence. Kaczinski contended he owed no duty of care because the
circumstances that led to the trampoline being blown onto the road were not foreseeable. The
district court granted Kaczinski’s motion for summary judgment. The Court of Appeals affirmed;
Thompson appealed.
Decision: Remanded. Property owners have a common-law duty to exercise reasonable care to
avoid allowing their property to obstruct a road. The Restatement (Third) of Torts is adopted by
Iowa. It removes consideration of foreseeability from the determination of duty in negligence
Issue Spotter: Duties to Elderly Customers
In the case in question, Gibson v. Metropolitan Opera (841 NE2d 747) the NY Court of Appeals
held that the opera house had no duty to stop a frail patron from trying to take his seat without an
escort. The patron could have requested an escort, and one would have been provided, but there
was no duty for the Met to have escorts insisting to escort every frail looking or disabled looking
person to their seats. The court noted that in such negligence matters, one balances the
reasonable expectations of the parties and society in general, the risks involved, the number of
incidents, etc. As the number of aged increase, this will become a more common issue and will
have to be dealt with by businesses—think of people getting on an off airlines and the time and
staff required to help the disabled and elderly—that will rise significantly in coming years. As a
problem becomes more common, the law tends to move in favor of taking more steps to provide
added safety.
CASE: Erichsen v. No-Frills Supermarkets of Omaha (Sup.Ct., Neb., 1994)—When Erichsen
returned to her car after shopping at No-Frills, she was attacked in the parking lot and suffered
serious injuries. She sued for negligence for failing to protect her from criminal activity on store
property. The trial court held for the store, ruling it violated no duty of care. She appealed.
Decision: Reversed and remanded. If the owner of business property knows from past experience
of possible criminal conduct, then reasonable precautions must be taken. The property owner
Questions: 1. The Nebraska high court held it was for the jury to determine if the store violated
its duty to take more precautions to protect patrons against criminal attack. Why should this store
do any more than any other store?
One has a duty to protect invitees. Stores want customers to come on their property, so must take
reasonable precautions to protect them against possible injuries, whether from criminal attacks or
2. Can a store afford to have full-time security guards? Is that required in cases such as this one?
If the store cannot afford guards, it will likely have to close. Given that there were a number of
attacks, the store will be held liable for failing to take reasonable measures. Warnings at a
Add. Case: Ann M. v. Pacific Plaza Shopping Center (Sup. Ct., Cal., 1993)–Ann M. was raped
when working alone at a photo-processing store at a strip shopping center in San Diego. She
received workers compensation benefits from her employer and sued the shopping center for
negligence for failing to provide adequate security. The lower courts granted the shopping
center summary judgment; Ann M. appealed.
Decision: Affirmed. Landowners have a duty to keep their land in reasonably safe condition, in
this case both for the tenants of the shopping center and their customers. They must take
reasonable steps to reduce foreseeable criminal acts. Hiring security guards, which would have
Add. Case: Pamela W. v. Millsom (Ct. App., Cal., 1994)–Pamela rented a condo from Millsom
in San Diego. The condo had little crime. Six months after she moved in, an assailant came
through a window and raped her, calling her by name and telling her he had watched her. She
sued her landlord, claiming negligence. Defendants argued that they owed no duty to Pamela to
protect her from such harm, because it was not foreseeable in the absence of prior incidents.
Summary judgment for defendants.
Decision: Affirmed. The condo did not have particular crime problems and is not in a high
crime area. Given that Pamela was being stalked, unknown to anyone, short of an armed guard
Add. Case: Jefferson v. Qwik Korner Market (Ct. App., Cal., 1994)–Julius Jefferson stood
outside of a convenience store after he bought something in it. An 84-year-old man drove up to
the store and instead of stepping on the brake pedal, accidentally stepped on the accelerator. His
car jumped the 6″ high concrete blocks at the end of the parking spaces in front of the store.
Jefferson was injured; he sued the store for not having better barriers to protect patrons from
such incidents. Trial court granted the store summary judgment. Jefferson appealed.
Decision: Affirmed. The store has a duty to use ordinary care to prevent injury to its patrons and
is only liable for wrongful acts by third parties when “such conduct can be reasonably
Issue Spotter: Protecting Customers’ Kids
The cases are all over the place in this area. But since litigation is common, and since injuries do
happen, the owners of stores have an obligation to reduce the possible severity of injuries, such
as by having rounded corners and other construction features that reduce the limit of damage
suffered. Such attention to detail will not only reduce the number of incidents, but also show
good faith by the store to take steps to protect customers.
Discussion Question
Unlike rural tenancies of old, which often lasted for many years, most modern tenancies are brief
and the law has changed to reflect that fact. Historically, tenants were responsible for all repairs,
including things such as a new roof. When tenancies were for life, that made sense, but when
brief urban tenancies occurred, the general rule changed to put the responsibility for major
repairs on the landlord.
Case Questions
1. Peterson does not get the parking lot by adverse possession but has an implied easement to
use the parking lot. Even though there was no recorded easement, the courts may find one by
implication. “An easement may be created by implication even where there is no express
2. The Gleasons have a right to make a claim. Taub had no right to enter their property. The
public drainage easement is for the benefit of the public, but the fee remained with the owner of
3. (answer on Internet for students) Damage to the value of plaintiffs’ property by road
construction does not support an action for inverse condemnation. There was no taking subject to
4. The judge issued an injunction ordering the website to cease operations. The city contended
5. (answer on Internet for students) To state a cause of action for breach of an implied warranty
of habitability, a tenant must show: 1) entry into a lease for residential property; 2) the
6. Bailment is the delivery of personal property by one person to another for a specific purpose,
with an express or implied contract that the trust will be faithfully executed and the property
7. (answer on Internet for students) The salesman did commit the tort of conversion by denying
Rouse the use of his vehicle as he had the right to. To hide something and then return it is
conversion. The car was converted, the keys were just a part of the car. Worse than the
8. The Texas appeals court held that evidence was sufficient to support conclusions that at the
time of the customer’s fall, store employees knew or should have known that water was present
and continuing to accumulate on the floor, and the store negligently failed to remove the water.
9. (answer on Internet for students) The Oregon Supreme Court upheld a jury damage award of
$7,818 in compensatory damages for lost revenues from the suspension of operations and
$50,000 in punitive damages. The cause of action was trespass to personal property (trespass to
10. The store owner, as lessee of site on which store and its parking lot were located, did not
have, or assume, a duty to warn store patrons of, or to remove, the black ice on which a patron
Ethics Question
This is an increasingly common issue given the growth of the aging population. Some do not
wish to live in a neighborhood that will have active kids around. As long as there are choices of
Essay Question from Case:
The Pardues had a large piece of land with a commercial horse breeding operation on it. Some
neighbors in the area raise turkeys on contract for Perdue Farms. After about 10 years, one of the
farms was cited for improper handling of turkey manure, as it was allowed to contaminate a
creek. The manure is normally collected and sold for fertilizer. The Pardues began to have a large
number of foal deaths, so they fenced off the creek that had been contaminated and gave the
horses other water. The foal losses continued for another five years and the Pardues sued Perdue
Farms for nuisance for improper management of its turkey growers, holding it responsible for the
high death rate of foals. Do they have a case? [Pardue v. Perdue Farms, 925 N.E. 482, Ct. App.,
Ind. (2010)]
Answer: No suit for nuisance. A nuisance is whatever is: 1) injurious to health; 2) indecent; 3)
offensive to the senses; or 4) an obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property. The Pardues did not provide expert testimony linking
Internet Assignment
You will find interesting matter about current property issues at these websites:
PropertyProf Blog is a popular blog among law professors who teach property law and has
interesting comments on current property law developments:
http://lawprofessors.typepad.com/property/
Castle Coalition is devoted to “Citizens Fighting Eminent Domain Abuse:”
www.castlecoalition.org
The Property and Environment Research Center (PERC) is a Montana-based group that focuses
on research at the intersection of private property and environmental issues: www.perc.org