Elements of a Wrongful Death Lawsuit

In order to bring a successful wrongful death cause of action, the following elements must be present:
The death of a human being;
Caused by another's negligence, or with intent to cause harm;
The survival of family members who are suffering monetary injury as a result of the death, and;
The appointment of a personal representative for the decedent's estate.
A wrongful death claim may arise out of a number of circumstances, such as in the following situations:
Medical malpractice that results in decedent's death;
Automobile or airplane accident;
Occupational exposure to hazardous conditions or substances;
Criminal behavior;
Death during a supervised activity.
Damages in a Wrongful Death Lawsuit
Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted "pecuniary injuries" as
including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages
awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries that resulted from the decedent's death. If the
distributees paid or are responsible for the decedent's funeral or medical care, they may also recover those expenses. Finally, a damage award
will include interest from the date of the decedent's death.
Determining Pecuniary Loss
When determining pecuniary loss, it is relevant to consider the age, character and condition of the decedent, his/her earning capacity, life
expectancy, health and intelligence, as well as the circumstances of the distributees. This determination may seem straightforward, but it often
becomes a complicated inquiry, keeping in mind that the measure of damages is actual pecuniary loss. Usually, the main consideration in
awarding damages is the decedent's circumstances at the time of death. For example, when an adult wage earner with dependants dies, the
major parts of the recovery are: 1) loss of income, and 2) loss of parental guidance. The jury may consider the decedent's earnings at the time
of death, the last known earnings if unemployed, and potential future earnings.
Adjustments in the Jury's Award
In a wrongful death action, the jury determines the size of the damages award after hearing the evidence. The jury's determination is not the
final word, however, and the size of the award may be adjusted upward or downward by the court for a variety of reasons. For example, if the
decedent routinely squandered his income, this might reduce the family's recovery. Similarly, the courts will reduce a jury's award if the
decedent had poor earnings, even though he was young, had great potential, and supported several children. At the same time, a jury may
award lost earnings despite the decedent's having been unemployed, if he had worked in the past and if the plaintiff presented evidence of the
decedent's average earnings while employed. If the plaintiff fails to present such evidence of the decedent's average earnings, the court may
set aside the jury's damage award and order a new trial.
Using Expert Testimony to Determine Pecuniary Loss
Plaintiffs are able to present expert testimony of economists to establish the value of the decedent to his family. Until recently, this testimony
was not admissible when a housewife died, but that rule has changed. When the decedent is a housewife who was not employed outside the
home, the financial impact on the survivors will not involve a loss of income, but increased expenditures to continue the services she was
providing or would have provided if she had lived. Because jurors may not be knowledgeable regarding the monetary value of a housewife's
services, experts may aid the jury in this evaluation.
Punitive Damages
Punitive damages are awarded in cases of serious or malicious wrongdoing to punish the wrongdoer, or deter others from behaving similarly. In
most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that have specific
statutes that permit the recovery of punitive damages. In states that do not explicitly allow or disallow punitive damages in wrongful death
actions, courts have held punitive damages permissible. An attorney will be able to advise you as to whether your state allows punitive
damages.
Survival Actions for Personal Injury
In addition to damages for wrongful death, the distributees may be able to recover damages for personal injury to the decedent. These are
called "survival actions," since the personal injury action survives the person who suffered the injury. The decedent's personal representative
can bring such an action together with the wrongful death action, for the benefit of the decedent's estate.
In a survival action for a decedent's conscious pain and suffering, the jury may make several inquiries to determine the amount of damages,
including: 1) the degree of consciousness; 2) severity of pain; and, 3) apprehension of impending death, along with the duration of such
suffering.
Getting Help
If a loved one has dies after an accident or injury caused by the negligence or misconduct of another individual, company or entity, you may be
entitled to bring a legal action for wrongful death against those responsible. Especially in light of time deadlines for filing such a lawsuit, you
should contact an experienced personal injury attorney as soon as possible, to discuss your legal rights and your potential case.
Fraud is the intentional deception of another in order to induce that person to act in such a way that the deceived person is damaged in some
way. The specific legal definition varies from state to state, but under Illinois law, the plaintiff must prove the following:
(1) a false statement of material fact was made;
(2) the defendant knew that the statement was false;
(3) the defendant intended to use the false statement to induce the plaintiff to act;
(4) the plaintiff's relied upon the truth of the statement; and
(5) the plaintiff suffered damages as a result of his or her reliance on the statement.
Not only is fraud a criminal offense, but it is also an intentional tort which may entitle the plaintiff to monetary compensation to recover for
their damages caused by the fraudulent activity. The skilled Chicago fraud attorneys at Ankin Law Offices are well-versed inintentional tort law
and can help you recover for any losses you may have suffered as a result of fraud.
Fraud can be committed in a wide variety of settings and situations, including:
Mortgage fraud
Consumer fraud
Insurance fraud
False advertising
Embezzlement, or the taking of money entrusted to another
Forgery of documents and/or signatures
Health fraud, such as the sale of fake medication
Identity theft
Securities fraud
Tax fraud
Investment fraud, such as Ponzi schemes or pyramid schemes
Because a civil action for fraud requires the proof of certain specific elements, it is important to consult with a knowledgeable and skilled
intentional tort litigator like the attorneys at the Chicago area law firm of Ankin Law Offices. Our experienced intentional tort lawyers have
years of experience upon which we can draw in order to best advise you regarding your potential claims of fraud. We have years of courtroom
experience as well, so we can aggressively advocate on your behalf in order to receive a maximum recovery for your losses. Contact one of
our Chicago fraud lawyers for a free consultation to discuss whether you have a cause of action.
Intentional torts are an area of the law not often examined in detail. However, intentional torts, such as false arrest and malicious prosecution,
offer a fascinating look at how criminal and civil litigation overlap and eventually come to terms with each other.
A case based on false arrest and malicious prosecution begins in criminal court. A classic example is the shoplifter who is arrested and
prosecuted by a merchandise establishment. Normally (although by no means always) the criminal complaint for retail theft is signed by the
individual who witnessed the alleged theft. If the criminal complaint is dismissed or if the case goes to trial and the individual is found not
guilty, a cause of action may exist against the merchandise establishment and/or the individual who signed the criminal complaint.
If a civil complaint is filed based on false arrest and malicious prosecution, Illinois law offers several solid defenses, not the least of which is the
Illinois Retail Theft Act. The Illinois Retail Theft Act, discussed below, offers an affirmative defense to merchants accused of false arrest,
although it is not an absolute bar to such a cause of action. Other defenses work in conjunction with the Illinois Retail Theft Act, weaving a web
a legal defenses when criminal charges are made based on solid facts.
Malicious Prosecution is a separate cause of action, and initial criteria necessary to file such and action has fairly recently been modified by the
Illinois courts. This article will review the torts of false imprisonment/false arrest and malicious prosecution, the primary defenses available to
each of these torts and the evolving nature of malicious prosecution claims.
FALSE IMPRISONMENT/FALSE ARREST
To sustain an action for false arrest or false imprisonment, plaintiff has the burden of proving:
restraint or arrest, against plaintiff's will,
caused or procured by defendants
without having reasonable grounds or probable cause to believe that the offense was committed by plaintiff.



Meerbrey v. Marshall Field & Co., Inc., 139 Ill.2d 455, 464, 564 N.E.2d 1222, 1231, 151 Ill.Dec. 560, 569 (Ill. 1990); Davis v. Temple, 284
Ill.App.3d 983, 988, 673 N.E.2d 737, 472, 220 Ill.Dec. 593, 598 (5th Dist. 1996); Hanna v. Marshall Field & Co., 279 Ill.App.3d 784, 790, 665
N.E.2d 343, 349, 216 Ill.Dec. 283, 289 (1st Dist. 1996). reh'g denied, May 21, 1996.
DEFENSES
A. Voluntarily Consent To Confinement.
The alleged confinement must be against plaintiff's will. Lopez v. Winchell's Donut House, 126 Ill.App.3d 46, 49, 466 N.E.2d 1309, 1312, 81
Ill.Dec. 507, 510 (1st Dist. 1984). Voluntary consent to confinement often nullifies false imprisonment. Hanna v. Marshall Field & Co., 279
Ill.App.3d at 790, 665 N.E.2d at 349, 216 Ill.Dec. at 289.
In Lopez, the plaintiff (an employee of the defendant) was suspected of selling donuts to patrons and pocketing the money she received.
Without explaining his suspicions, plaintiff's manager called plaintiff at home and asked her to come to Winchell's. Plaintiff voluntarily came to
the store and accompanied two managers to a back room. One of the managers put a "latch" on the door and confronted plaintiff with his
suspicions. The court affirmed summary judgment for employer defendant Winchell's stating:
It is essential ... that the confinement be against plaintiff's will and if a person voluntarily consents to the confinement, there can be no false
imprisonment. Moral pressure, as where the plaintiff remains with the defendant to clear himself of suspicion of theft ... is not enough ...


Lopez, 126 Ill.App.3d at 49, 446 N.E.2d at 1312, 81 Ill.Dec. at 510 citing Fort v. Smith, 85 Ill.App.3d 479, 481, 407 N.E.2d 117, 119, 40 Ill.Dec. 886,
888 (5th Dist. 1980)



Voluntary confinement is not as strong a defense when the plaintiff is not an employee. In such situations, courts have found that to hold the
customer/plaintiff could have "unilaterally ended the confrontation ignores the reality of the situation". Robinson v. Weibolts Stores, Inc., 104
Ill.App.3d 1021 (1st Dist 1982).
B. Probable Cause to Effectuate the Arrest.
Existence of probable cause is an absolute bar to claims for false arrest or false imprisonment. Nielsen v. Village of Lake in the Hills, 948 F.Supp.
786 (N.D.Ill. 1996); Kincaid v. Ames Dept. Stores, Inc., 283 Ill.App.3d 555, 561, 670 N.E.2d 1103, 1109, 219 Ill.Dec. 215, 221 (1st Dist. 1996),
reh'd denied, appeal denied, 169 Ill.2d 569, 675 N.E.2d 634, 221 Ill.Dec. 439 (Ill. 1996). Some courts have held that whether the circumstances
amount to probable cause is a question of law to be decided by the court (and not the jury). Serpico v. Menard, Inc., 927 F.Supp. 276 (N.D.Ill.
1996); Ely v. National Super Markets, Inc., 149 Ill.App.3d 752, 756, 500 N.E.2d 120, 124, 102 Ill.Dec. 498, 502 (4th Dist. 1986), appeal denied,
114 Ill.2d 544, 508 N.E.2d 727, 108 Ill.Dec. 416 (Ill. 1987).
Probable cause is defined as "a state of facts ... as would lead a man of ordinary caution and prudence to believe or entertain an honest and
strong suspicion that the person accused is guilty of the offense charged." Carbaugh v. Peat, 40 Ill.App.2d 37, 47, 189 N.E.2d 14, 24 (2d. Dist.
1963). It is not necessary to verify the correctness of each item of information obtained; it is sufficient to act with reasonable prudence and
caution in so proceeding. Turner v. City of Chicago, 91 Ill.App.3d 931, 935, 415 N.E.2d 481, 485, 47 Ill.Dec. 476, 480 (1st Dist. 1980). "It is the
state of mind of the one commencing the [arrest or imprisonment], and not the actual facts of the case or the guilt or innocence of the accused
which is at issue". Serpico v. Menard, Inc., 927 F.Supp. 276, 279 (N.D.Ill. 1996) citing Burghardt v. Remiyac, 207 Ill.App.3d 402, 565 N.E.2d 1049,
152 Ill.Dec. 367, (2d Dist. 1991). Probable cause is determined at the time of subscribing a criminal complaint and it is immaterial that the
accused thereafter may be found not guilty. Ely v. National Super Markets, Inc., 149 Ill.App.3d at 754, 500 N.E.2d at 124, 102 Ill.Dec. at 502.
In Burghardt v. Remiyac, 207 Ill.App.3d. 402, 565 N.E.2d 1049, 152 Ill.Dec. 367, the court affirmed summary judgment in favor of the employer
(office manager of Swanson True Value Hardware Store) who accused plaintiff employee of falsifying refund slips to steal money from the store.
In reviewing whether probable cause existed, the court stated that the "theft complaint against the plaintiff was based upon facts that would
lead a man of ordinary caution and prudence to believe or to entertain an honest and strong suspicion that the plaintiff had committed the
offense of theft." Burghardt, 565 N.E.2d at 1053, 152 Ill.Dec. at 371. Accordingly, the defendant was entitled to summary judgment. In
Burghardt, Defendants systematically reviewed refund receipts which showed that each time plaintiff worked the suspicious receipts were
made. Defendant followed up by questioning one of plaintiff's customers. This revealed the customer never returned any merchandise.
In addition, the Illinois Supreme Court has been very clear to point out that "public policy favors the exposure of crime, and the cooperation of
citizens possessing knowledge thereof is essential to effective implementation of that policy. Persons acting in good faith who have probable
cause to believe crimes have been committed should not be deterred from reporting them by the fear of unfounded suits by those accused.
Joiner v. Benton Community Bank, 82 Ill.2d 40, 42, 411 N.E.2d 229, 231, 44 Ill.Dec. 260, 262 (Ill. 1980).
C. The Illinois Retail Theft Act Provides an Affirmative Defense to Merchants Accused of False Arrest/Imprisonment
The Illinois Retail Theft Act 720 ILCS 5/16(a)-1 et seq. states:
Any merchant who has reasonable grounds to believe that a person has committed retail theft may detain such person, on or off the premises
of a retail mercantile establishment, in a reasonable manner and for a reasonable length of time for all or any of the following purposes:
1. In request identification;
2. To verify such identification;
3. To make reasonable inquiry as to whether such person has in his possession unpurchased merchandise and, to make reasonable
investigation of the ownership of such merchandise;
4. To inform a peace officer of the detention of the person and surrender that person to the custody of a peace officer; ...
720 ILCS 5/16A-5.



Any detention as permitted under the Illinois Retail Theft Act "does not constitute an arrest or an unlawful restraint," and it shall not "render
the merchant liable to the person so detained." 720 ILCS 5/16A-6.
MALICIOUS PROSECUTION
To sustain an action for malicious prosecution, plaintiff has the burden of proving:
1. commencement or continuance of an original criminal or civil judicial proceeding by defendant;
2. termination of proceeding in favor of plaintiff;
3. absence of probable cause for such proceeding;
4. presence of malice;
5. and damages resulting to plaintiff.
Gonzalez v. Chicago Steel Rule Die & Fabricators Co., 106 Ill.App.3d 848, 849, 436 N.E.2d 603, 604, 62 Ill.Dec. 577, 578 (1st Dist. 1982).
DEFENSES
A. Termination Of The Proceedings
Recent Illinois case law has broadened the use of malicious prosecution actions by broadening the definition of "favorable termination." What
constitutes a "favorable termination" is evolving in the Illinois courts. Illinois was formerly in the minority, holding that a favorable termination
required a factual determination of the underlying case, traditionally by trial or by motion for summary judgment. Siegel v. City of Chicago, 127
Ill.App.2d 84, 261 N.E.2d 802 (1970). Accordingly, if a case was voluntarily dismissed, there was no factual ruling and the plaintiff could not
subsequently plead malicious prosecution.
The Illinois Supreme Court has recently reviewed this requirement in two separate cases, one dealing with an underlying criminal case, the
other dealing with an underlying civil case. The Illinois Supreme Court relied heavily on the Restatement (Second) of Torts. In essence, this
element no longer requires an adjudication on the merits. The courts now look at the underlying reason for the termination, irregardless of
whether the termination was based on the merits of the case.
The Illinois Supreme Court also recently reviewed a malicious prosecution case where the underlying case was a criminal charge. Zwick v.
Liautaud, 662 N.E.2d 1238, 215 Ill.Dec. 98 (1996). In Zwick, the underlying criminal charges were nolle prosequi (a nolle prosequi is not a final
disposition of a case but ... is a procedure which reverts the matter to the same condition which existed before the commencement of the
prosecution. People v. Woolsey, 139 Ill.2d 157, 151 Ill.Dec. 309 (1990)). Once again following the Restatement (Second) of Torts, the supreme
court held that "in a civil malicious prosecution context, the majority rule is that a criminal proceeding has been terminated in favor of the
accused when a prosecutor formally abandons the proceeding via a nolle prosequi, unless the abandonment is for reasons not indicative of the
innocence of the accused." Zwick is a case of first impression, and it holds that the "favorable termination" element of a malicious prosecution
case has been broadened beyond an adjudication of the merits. It is important to note that the Supreme Court held the burden of proof of a
favorable termination remained with the plaintiff. Accordingly, just because a matter is nolle prosequi does not mean plaintiff automatically has
proven favorable termination.
The Appellate Courts have had a limited opportunity to explore the parameters of the newly broadened "favorable termination". In one
Appellate Court case which came down only a few months after Zwick v. Liautaud, the First District Appellate Court (Cook County) made a
distinction for criminal cases which were stricken on leave to reinstate (sol). (Traditionally, a criminal case which is sol'd can be reinstated by
the State's Attorney upon proper motion. A case which is Nolle prosequi can not be reinstated.) Relying on case law which pre-dated Zwick v.
Liautaud, the First District held that "a plaintiff whose case is stricken on leave must obtain a final determination in his favor by bringing a
motion for discharge on speedy trial grounds. Failing to do so, the plaintiff failed to meet his burden of proving a favorable final determination."
Vincent v. Williams, 664 N.E.2d 650, 216 Ill.Dec. 13 (1st Dist. 1996). The Fist District court, however, found support from the Supreme Court's
decision of Zwick v. Liautaud, stating that a nolle prosequi charge did not establish that the criminal proceedings were terminated in a manner
consistent with plaintiff's innocence. The Appellate Court did not examine the Illinois Supreme Court's ruling that evidence had to be presented
which established whether or not the discharge of the case was consistent with the plaintiff's innocence.
In a more recent case, Adams v. Sussman and Hertzberg, Ltd., 684 N.E.2d 935, 225 Ill.Dec. 944 (1st Dist 1997), the complaining witness testified
in the malicious prosecution proceedings that his superiors had instructed him not to testify in the criminal action. Because the witness did not
testify, the State's Attorney dismissed the criminal charges. The court in Adams held that "a dismissal on that basis is a termination in favor of
the accused indicative of the accused's innocence." Adams v. Sussman and Hertzberg, Ltd., 225 Ill.Dec. 944, 952. The court in Adams, however,
did affirm the defendant's judgment notwithstanding the verdict on the malicious prosecution claim because the defendant had probable cause
to proceed with the criminal charges.
B. Probable Cause
The existence of probable cause acts as a defense to an action for malicious prosecution. Ely v. National Super Markets, Inc., 149 Ill.App.3d at
754, 500 N.E.2d at 124, 102 Ill.Dec. at 502. The issues involved in asserting probable cause are discussed under false arrest/false imprisonment.
C. Lack of Malice.
In addition, plaintiff must offer at least some evidence of malice, which is an essential element of the claim of malicious prosecution. Ritchey v.
Maksin, 71 Ill.2d 470, 472, 376 N.E.2d 991, 993, 17 Ill.Dec. 662, 664 (Ill. 1978); Robinson v. Econ-O-Corporation, Inc., 62 Ill.App.3d 958, 960, 379
N.E.2d 923, 925, 20 Ill.Dec. 90, 92 (4th Dist. 1978). Malice is defined as initiation of prosecution for any reason other than to bring the party to
justice. Ritchey v. Maksin, 71 Ill.2d 470, 472, 376 N.E.2d 991, 993, 17 Ill.Dec. 662, 664; Salmen v. Kamberos, 206 Ill.App.3d 686, 690, 565 N.E.2d
6, 10, 151 Ill.Dec. 735. 739 (1st Dist. 1990). Malice is not a legal presumption which can be inferred merely from lack of probable cause. Hughes
v. New York Cent. System, 20 Ill.App.2d 224, 227, 155 N.E.2d 809, 812 (1st Dist. 1959). Malice is also not established merely by the fact that
plaintiff was acquitted of the criminal charge. Carbaugh v. Peat, 40 Ill.App.2d 37, 42, 189 N.E.2d 14, 19.
D. Advice of Counsel
Advice of legal counsel is another defense to a claim for malicious prosecution. Karow v. Student Inns, Inc, 43 Ill.App.3d 878, 347 N.E.2d 282, 2
Ill.Dec. 515 (4th Dist. 1976); Accord Wright v. Young, 128 Ill.App.2d 100, 262 N.E.2d 769 (1st Dist. 1970); Galarza v. Sprague, 284 Ill.App. 254; 1
N.E.2d 275 (1st Dist. 1936). In Karow, plaintiff was arrested for criminal trespass even though he was present on the property with the
permission of a lawful tenant. The court held that plaintiff could not have been found guilty of criminal trespass as a matter of law. However,
the court affirmed judgment on behalf of the defendants in part based on the affirmative defense of legal advice. In Karow, the defendant had
made a full disclosure of the plaintiff's activities to the State's Attorney and accordingly, could not have been found liable. In general, this
affirmative defense is viable if the defendant can show it relied on an attorney's advice after making a full, truthful and correct disclosure.
CONCLUSION
Not every criminal charge will lead to a finding of guilty. Some will be dismissed when a primary witness can not be located or when evidence is
lost. Some will be defeated at trial because the necessary elements are not established. (For example - when it is not shown that the
perpetrator passed the last possible place to pay for the merchandise).
But, as evidenced by the defenses outlined above, the best response to a claim of false arrest and/or malicious prosecution is a solidly
supported criminal charge. Documentation of the observations, written down immediately after the occurrence, and videotape of the arrest,
when possible, are critical to establishing probable cause. All witnesses to the occurrence, or even the events leading up to the theft, are
important to defend the civil litigation.
With the facts in place and the defenses offered by Illinois law, a motion for summary judgment is often a viable, and successful, strategy.
Invasion of privacy is a relatively new tort in American law, having appeared on the scene in the late 1800s. According to the Restatement
(Second) of Torts, an individual's right to privacy, and a corresponding right to personal injury compensation for the invasion of that right, has
now come to be recognized in virtually all U.S. jurisdictions.
What one considers the tort of invasion of privacy is actually four separate and distinct causes of action. Each of the invasion of privacy torts
involves the intrusion into a person's private activities in such a manner as to embarrass, humiliate or outrage a person of ordinary sensibilities.
Intentional Intrusion Invasion of Privacy
Intrusion is a form of invasion of privacy that involves the intentional and unauthorized intrusion, physically or otherwise, into someone's
solitude or private activities. In order to be actionable, the intrusion must be of a type that would be highly offensive to the ordinary reasonable
person. Examples of intrusion may include such things as eavesdropping, reading someone's e-mail, wire tapping someone's telephone, or
searching through someone's private possessions.
Appropriating Someone's Publicity Rights to Their Name or Likeness
The tort of appropriation is a form of invasion of privacy that invades someone's right of publicity. Appropriation consists of the unauthorized
use of someone's name, personality or photograph for the defendant's benefit. In other words, this tort involves appropriating some element
of the plaintiff's personality for commercial use without the plaintiff's permission. An example would be the unauthorized use of a famous
basketball player's photograph on an advertisement for sporting goods.
Public Disclosure of Private Facts
The public disclosure of private facts is an actionable invasion of privacy if it would be highly offensive to the ordinary person to have those
facts publicized, and if the facts are not legitimately matters of public concern. This tort amounts to unreasonable publicity about the plaintiff,
but it must involve facts that are not already part of the public record. It is not a defense that the facts about the plaintiff are true, so long as
the other criteria are met.
Publicity Placing Someone in a False Light
False light invasion of privacy involves publicizing something about the plaintiff that places the plaintiff in a false and objectionable position in
the public eye. The law does not require that the publicized information be private, but it does require that it be false or be given a false
connotation. This tort may involve attributing to the plaintiff characteristics, conduct or beliefs that are false. Similar to defamation, false light
invasion of privacy exposes the plaintiff to ridicule, hatred or contempt.
Not all U.S. jurisdictions recognize all the invasion of privacy torts. Those that do recognize these torts may have differing approaches to each
tort. Moreover, most states impose time limits on bringing tort lawsuits. A person who believes he or she is entitled to personal injury
compensation for invasion of privacy should contact a local attorney for advice and counsel.
Sources: Restatement (Second) of Torts, 652 (1965); S.B. v. St. James School, 959 So. 2d 72 (Ala. 2006).
Additional Resource: How to Hire an Attorney
Disclaimer: This article is in no way intended as legal advice. For help with specific legal issues, one should contact a licensed attorney in one's
own jurisdiction.
A conversion is the unauthorized assumption of the right of ownership over the personal property of another to the exclusion of the owners
rights[i].
The tort of conversion is an intentional exercise of dominion and control over a chattel which so seriously interferes with the right of another to
control it that the actor may justly be required to pay the other the full value of the chattel[ii].
Thus, conversion is the deprivation of anothers right of property in or use or possession of a chattel or other interference therewith without
the owners consent and without lawful justification[iii].
The elements of conversion are[iv]:
the plaintiffs ownership or right to possession of the property;
the defendants conversion by wrongful act inconsistent with the property rights of the plaintiff; and
damages.
A conversion may be committed by unreasonably withholding possession from one who has the right to it.
A person not in lawful possession of a chattel may commit conversion by [v]:
intentionally dispossessing the lawful possessor of the chattel,
intentionally using a chattel in his possession without authority so to use it,
receiving a chattel pursuant to an unauthorized sale with intent to acquire for himself or for another a proprietary interest in it,
disposing of a chattel by an unauthorized sale with intent to transfer a proprietary interest in it, or
refusing to surrender a chattel on demand to a person entitled to lawful possession.
A conversion may be proved in one of three ways:
by tortious taking;
by any use or appropriation to the use of the person in possession, indicating a claim of right in opposition to rights of the owner; or
refusal to give up possession to the owner on demand[vi].
A conversion is an intentional tort[vii]. The element of intent that must be proven is the intent to exercise dominion and control over the
plaintiffs property in a manner inconsistent with the plaintiffs rights[viii]. The intent required is not necessarily a matter of conscious
wrongdoing.
However, the intent or purpose to do a wrong is not a necessary element to establish conversion[ix]. In Chem-Age Indus. v. Glover, 2002 SD
122 (S.D. 2002), the court held that the foundation for the action of conversion rests neither in the knowledge nor the intent of the defendant.
It rests upon the unwarranted interference by a defendant with the dominion over the property of the plaintiff from which injury to the latter
results.
Since the act must be knowingly done, neither negligence active or passive nor a breach of contract even though it result in injury to or loss of
specific property, constitutes a conversion[x]. It follows therefore that mistake, good faith, and due care are ordinarily immaterial and cannot
be set up as defenses in an action for conversion.
A person is not relieved of liability to another for trespass to a chattel or for conversion by his/her belief because of a mistake of law or fact not
induced by the other that s/he:
has possession of the chattel or is entitled to its immediate possession;
has the consent of the other or of one with power to consent for him or her; or
is otherwise privileged to act.
The essence of a conversion is not the acquisition of property, but the wrongful deprivation of that property from its true owner[xi]. One who
is lawfully in possession of property may nevertheless be liable for a conversion for exceeding the scope of authority for that lawful possession
when the use seriously violates the true owners right of control.
To establish a conversion claim, a plaintiff must prove that:
it had a possessory interest in the property,
the defendants intentionally interfered with the plaintiffs possession, and
the defendants acts are the legal cause of the plaintiffs loss of property.
At common law, even unwitting acts by the trespasser are sufficient to sustain a cause of action for conversion. A creditors improper
treatment of collateral can amount to a conversion[xii]. A creditor who converts collateral is entitled to a credit against the debtors recovery
for the debt secured by the collateral. The tort of conversion generally may extend to the type of intangible property rights that are merged or
incorporated into a transferable document.
A possessory interest in personal property is sufficient to maintain an action for conversion against one who sells that property without
notifying the lawful possessor. Even though the lawful possessors do not have legal title, if s/he exercises control of it by taking possession of it
and maintaining it for a period of time, his or her rights in the chattel are sufficient.
The gravamen of an action for conversion lies in the defendants taking the plaintiffs personalty without consent and exercising dominion over
it inconsistent with the plaintiffs right to possession[xiii]. The focus of inquiry is whether a defendant has appropriated to his/her own use the
chattel of another without the latters permission and without legal right.
In order to sustain an action for conversion of personal chattels, a plaintiff must demonstrate an ownership or possessory interest in the
property at the time of the conversion[xiv].
A plaintiff must also identify the allegedly converted property with reasonable certainty, in order to render it capable of identification, for the
purpose of determining whether the property in fact belonged to the plaintiff at the time of its conversion.
One jurisdiction states that a conversion is a continuing tort, lasting as long as the person entitled to the use and possession of property is
deprived of it. It does not necessarily end when the original wrongdoer transfers physical possession to another.
However, another jurisdiction states that conversion is not a continuing tort and damages for a conversion are based upon the propertys fair
market value at the time and place of the conversion, plus interest on it.
Further, another jurisdiction has held that a wrongful conversion cause of action must be filed before the statute of limitations runs out and the
continuing tort theory does not apply.
A plaintiff who proved conversion in a common law action is entitled to damages equal to the full value of the chattel at the time and place of
conversion[xv]. The measure of damages in conversion is the fair market value of the property at the time and place of the conversion[xvi].
When the defendant satisfies the judgment in the action for conversion, title to the chattel passes to him so that he is in effect required to buy
it at a forced judicial sale.
The modern tort of conversion subjects the wrongdoer to liability to the possessor for the entire value of the chattel in addition to any special
damages resulting from the conversion and this liability does not depend on the existence of the possessors responsibility to the owner for the
loss of the chattel[xvii].
Although the normal measure of damages for conversion is the value of the property at the time of the conversion and a fair compensation for
the time and money properly expended in pursuit of the property, emotional distress damages are also allowed[xviii].
[i] Litzinger v. Estate of Litzinger (In re Litzinger), 340 B.R. 897 (B.A.P. 8th Cir. 2006)
[ii] Carver v. Quality Inspection & Testing, 946 P.2d 450 (Alaska 1997)
[iii] Stevenson v. Economy Bank of Ambridge, 413 Pa. 442 (Pa. 1964)
[iv] Kasdan, Simonds, McIntyre, Epstein & Martin v. World Sav. & Loan Assn (In re Emery), 317 F.3d 1064 (9th Cir. Cal. 2003)
[v] Baram v. Farugia, 606 F.2d 42 (3d Cir. Pa. 1979)
[vi] Litzinger v. Estate of Litzinger (In re Litzinger), 340 B.R. 897 (B.A.P. 8th Cir. 2006)
[vii] Vaughn v. Vaughn, 146 Md. App. 264 (Md. Ct. Spec. App. 2002)
[viii] Id
[ix] Chem-Age Indus. v. Glover, 2002 SD 122 (S.D. 2002)
[x] Taylor v. Forte Hotels Intl, 235 Cal. App. 3d 1119 (Cal. App. 4th Dist. 1991)
[xi] Yaeger v. Magna Corp. (In re Magna Corp.), 2005 Bankr. LEXIS 1114 (Bankr. M.D.N.C. Mar. 14, 2005)
[xii] Chemical Sales Co. v. Diamond Chemical Co., 766 F.2d 364 (8th Cir. Mo. 1985)
[xiii] DeChristofaro v. Machala, 685 A.2d 258 (R.I. 1996)
[xiv] Id
[xv] Baram v. Farugia, 606 F.2d 42 (3d Cir. Pa. 1979)
[xvi] Vaughn v. Vaughn, 146 Md. App. 264 (Md. Ct. Spec. App. 2002)
[xvii] Wallander v. Barnes, 341 Md. 553 (Md. 1996)
[xviii] Spates v. Dameron Hospital Assn., 114 Cal. App. 4th 208 (Cal. App. 3d Dist. 2003)

Elements of Conversion
Conversion is a tort that exposes you to liability for damages in a civil lawsuit. It applies when someone intentionally interferes with personal
property belonging to another person. To make out a conversion claim, a plaintiff must establish four elements:
First, that the plaintiff owns or has the right to possess the personal property in question at the time of the interference;
Second, that the defendant intentionally interfered with the plaintiff's personal property (sometimes also described as exercising
"dominion and control" over it);
Third, that the interference deprived the plaintiff of possession or use of the personal property in question; and
Fourth, that the interference caused damages to the plaintiff.
The most direct and obvious way to commit conversion is by taking personal property that belongs to someone else without permission. For
example, if you take a framed photograph from the wall of a local restaurant or a document from someone's desk, you may be held liable for
conversion, assuming you retain the property for a substantial period of time and thereby interfere with the rightful owner's use and
possession of it. It does not matter whether you intend to publish the information, photos, or other content.
However, if you remove paperwork or photographs from someone's office or home temporarily in order to copy the information -- intending to
return the documents to the owner -- you might not be liable for conversion because this temporary interference does not necessarily deprive
the rightful owner of the possession or use of the property. See Harper & Row Pubs. v. Nation Enters., 723 F.2d 195, 201 (2nd Cir. 1983)
("Conversion requires not merely temporary interference with property rights, but the exercise of unauthorized dominion and control to the
complete exclusion of the rightful possessor."). You should be aware that taking property from someone can also expose you to criminal liability
under state laws.
You can also commit conversion by receiving and retaining property from someone who does not have the right to give the property away. This
issue could come up when you receive documents from sources. For example, if a bank employee gives you checking account records for bank
customers, you may both be liable for conversion because the employee likely does not have permission from his or her employer to turn over
a customer's records. But the legal analysis is not that simple, and whether or not you could be held liable for conversion under these
circumstances depends on whether the records you receive are originals or copies.
As a rule of thumb, you can generally receive and retain copies of documents that belong to someone else, but you may not receive and retain
the originals of such documents. The reason is that "the possession of copies of documents -- as opposed to the documents themselves -- does
not amount to an interference with the owner's property sufficient to constitute conversion."FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d
300, 303 (7th Cir. 1990). However, you may be held liable for conversion for receiving and retaining copies if the rightful owner no longer has
either originals or copies of the documents in question. Even if you are held liable for conversion and must return the documents in question,
you generally are entitled under the First Amendment to retain copies of the documents for yourself and to disseminate any information
contained in them. See id. at 304-05.
California has long recognized the right to recover damages for the intentional and unreasonable infliction of mental or emotional
distress which results in foreseeable physical injury to plaintiff. California courts have also acknowledged the right to recover damages for
emotional distress alone, without consequent physical injuries, in cases involving extreme and outrageous intentional invasions of one's mental
and emotional tranquility. (State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 336-337)
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The elements of a prima facie case for the tort of intentional infliction of emotional distress are:
(1) outrageous conduct by the defendant;
(2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress;
(3) the plaintiff's suffering severe or extreme emotional distress; and
(4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Alcorn v. Anbro Engineering, Inc (1970) 2
Cal.3d 493, 497-498
EMOTIONAL DISTRESS-DEFINED
The term "emotional distress" means mental distress, mental suffering or mental anguish. It includes all highly unpleasant mental reactions,
such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.
SEVERE-DEFINED
The word "severe," in the phrase "severe emotional distress," means substantial or enduring as distinguished from trivial or transitory. Severe
emotional distress is emotional distress of such substantial quantity or enduring quality that no reasonable person in a civilized society should
be expected to endure it. In determining the severity of emotional distress consideration is given to its intensity and duration.
The Restatement view is that liability "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,"
but only to conduct so extreme and outrageous "as to go beyond all possible bonds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community." (Rest. 2d Torts, 46, com. d; see Prosser, Law of Torts, supra, at pp. 46-47.) "The emotional distress must
in fact exist, and it must be severe." (Prosser, Law of Torts, supra, p. 51; Rest.2d Torts, supra, 46, Com. j.)
EXTREME AND OUTRAGEOUS CONDUCT-DEFINED
Extreme and outrageous conduct is conduct which goes beyond all possible bounds of decency so as to be regarded as atrocious and utterly
intolerable in a civilized community.
Extreme and outrageous conduct is not mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. All persons must
necessarily be expected and required to be hardened to a certain amount of rough language and to occasional acts that are definitely
inconsiderate and unkind.
Extreme and outrageous conduct, however, is conduct which would cause an average member of the community to immediately react in
outrage.
EFFECT OF RELATIONSHIP OF PARTIES
The extreme and outrageous character of the conduct of a defendant may arise from an abuse of a position, or relationship to a plaintiff, which
gives such a defendant actual or apparent authority over a plaintiff, or power to affect a plaintiff's interests.
SUSCEPTIBILITY OF PLAINTIFF
The extreme and outrageous character of a defendant's conduct may arise from defendant's knowledge that a plaintiff is peculiarly susceptible
to emotional distress by reason of some physical or mental condition or peculiarity. Conduct may become extreme and outrageous when a
defendant proceeds in the face of such knowledge, where it would not be so if defendant did not know.
INTENTIONAL AND RECKLESS -- DEFINED
A defendant intended to inflict emotional distress if it is established that he or she desired to cause such distress or knew that such distress was
substantially certain to result from his or her conduct.
A defendant's conduct is in reckless disregard of the probability of causing emotional distress if he or she has knowledge of a high degree of
probability that emotional distress will result and acts with deliberate disregard of that probability or with a conscious disregard of the probable
results.
PRIVILEGE
Conduct, which under other conditions would be extreme and outrageous, may be privileged and a defendant is not liable:
When a defendant has done no more than to insist upon his or her legal rights in a permissible way, even though he or she is well aware that
such insistence is certain to cause emotional distress. If you find that defendant in good faith believed that he or she was acting under a legal
right, he or she shall be considered as having been acting under such right even though, in fact, he or she had no such right.
When a defendant makes statements in the course of an official proceeding.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The elements of a claim of negligent infliction of emotional distress are:
1. The defendant engaged in negligent conduct or a willful violation of a statutory standard;
2. The plaintiff suffered serious emotional distress;
3. The defendant's negligent conduct or willful violation of statutory standards was a cause of the serious emotional distress.
Serious emotional distress is an emotional reaction which is not an abnormal response to the circumstances. It is found where a reasonable
person would be unable to cope with the mental distress caused by the circumstances.
CAUSES OF NERVOUS SHOCK
A shock to the nervous system may be caused either by some physical impact or by fright caused by exposure to imminent peril.
BYSTANDER RECOVERY OF EMOTIONAL DISTRESS
Bystanders may recover for emotional distress damage only under very limited circumstances. The emotional disturbance suffered must be
"serious and verifiable," and must be tied as a matter of proximate causation to the observation of the serious injury or death of an immediate
family member. Finally, the plaintiff himself must have been in the "zone of danger" i.e, must have been exposed to a risk of bodily harm by the
conduct of the defendant.
The essential elements of a claim of wrongful infliction of emotional distress upon a bystander are:
1. The defendant was negligent; or the defendant manufactured or supplied a defective product;
2. Defendant's negligence or defective product was a cause of injury or death to the victim;
3. Plaintiff was the spouse, parent, or child, of the victim;
4. Plaintiff was present at the scene of the injury-producing event or accident at the time it occurred;
5. Plaintiff was then aware that such event or accident caused the injury to the victim;
6. As a result, plaintiff suffered serious emotional distress.
Serious emotional distress is an emotional reaction beyond that which would be anticipated in a witness not related to the injured person and
which is not an abnormal response to the circumstances. It is found when a reasonable person would be unable to cope with the mental
distress caused by the circumstances of the accident and injury to the near relative.