Liability on the Part of Term Paper

  • Length: 3 pages
  • Sources: 8
  • Subject: Business - Law
  • Type: Term Paper
  • Paper: #44168302

Excerpt from Term Paper :

Atomic Mushroom should prevail.

6. The plaintiff would have available three possible causes of action related to the same set of facts: the taking of the keys. The first cause of action would be based in conversion. The problem in this approach would be the fact that the defendant's possession of the keys was only momentary and did not result in the plaintiff's suffering complete exclusion from her keys. The second course of action would be to proceed on the basis of intentional infliction of mental distress. Here the problem will be the plaintiff's ability to demonstrate that the defendant's behavior was "extreme and dangerous." As foolish and childish as the defendant's behavior may be whether such behavior raises to the level necessary for recovery for this tort under the law of most jurisdictions is questionable.

The third cause of action would be trespass to a chattel; the chattel being the plaintiff's keys. Here the plaintiff would only have to demonstrate that she was denied use of ther keys for a substantial time in order to prevail. Whether the half hour was a substantial time would be a jury question.

The damages portion of the plaintiff's claim is also highly questionable. Damages are an element of all tort claims and in many jurisdictions the awarding of punitive damages with the demonstration of actual damages is not permissible. There is nothing presented in the instant case to indicate how the plaintiff was injured other than her mere outrage. This may be enough in some jurisdictions as to the conversion and the intentional infliction torts but as to trespass action it would surely be enough as actual damages are not necessary.

The trespass action represents the best available cause of action for the plaintiff. As the question as to whether the trespass was for a substantial time is a question fact and therefore within the province of the jury the Court of Appeals is not likely to overturn the awarding of damages. Courts of Appeal are reluctant to overturn such determination absent compelling evidence to do so. If the Court of Appeals finds that the underlying basis for the tort has been demonstrated the punitive damages award is likely to stand.

7. The plaintiff's entire action will be dependent upon what the developer and real estate agent knew. An action in fraud is based upon a false or misleading allegation or the concealment of what should have been disclosed. Obviously if the plaintiffs can demonstrate that either the developer or real estate agent knew that the plaintiffs did not have access to Waterfall Road and knew that the plaintiffs were relying upon such access in making a decision to purchase the property then both would have had an obligation to advise the plaintiffs of this fact. The fact that neither the developer nor agent advised the plaintiffs of the lack of a Waterfall Road access would certainly constitute fraud if either or both were aware that the plaintiffs considered this to be a material fact in their decision.

The plaintiffs' failure to read the survey may release the defendants from any liability. Issues such as the one presented in the instant case are the reason why surveys are ordered and why title insurance is purchased. The plaintiffs had every opportunity to correct the problem and have the option to walk away from the deal. Unfortunately, their own negligence may obviate the defendants' duty to disclose.

8. The Falcons' ownership of the disputed 103 acre parcel is likely safe. Although it will ultimately depend upon the specific laws of the State of Virginia, under most adverse possession laws, both common law and statutory, the Falcons are probably the rightful owners of the property. Obviously, the Falcons will have to fulfill the elements of adverse possession in order to prevail in their claim and, because no time frame has been mentioned, it cannot be stated categorically that the Falcons have possessed the property for the requisite time, begin paying taxes on the property if they plan to retain their ownership. The fact that the Falcons have not paid taxes on the property has no bearing on their claim of ownership. Such failure does not…

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