Date: Mon, 10 Mar 2008 16:03

From: Caprice Roberts

Subject: Remedies for Conversion and Trespass to Goods

A U.S. federal appellate court denied recovery for a new security system -- new locks and an alarm -- in a trespass case with unlawful removal of silver. The court reasoned:

The installation of locks and a burglar alarm was not a repair of physical damage, and the cost was not recoverable as compensation for injury to property. Mrs. Gavcus' theory is that the trespass had caused an impairment of her sense of security and that the installation became reasonably necessary on account of that impairment.

We reject the theory, however, for two reasons. Impairment of her sense of security would amount, if anything, to a type of emotional distress. ...

Second, assuming that she could have proved that the trespass caused increased nervousness, uneasiness, and worry, she cites no authority, nor was any authority found, which shows that the cost of an improvement to property intended to alleviate distress of that type would be properly allowable as damages.

Mrs. Gavcus argues, however, that Wisconsin has expanded the scope of damages for which a plaintiff may receive compensation in a trespass action, citing Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768 (Ct.App.1980). She argues that Prahl expands the scope of damages to include damages for nonphysical injury, and then contends that she experienced such injury because her ability to enjoy her property had been impaired. Disregarding the fact that Prahl is the decision of an intermediate court and the issue has not yet reached the Supreme Court of Wisconsin, we do not think that Prahl applies to the case at bar.

Gavcus v. Potts, 808 F.2d 596 (7th Cir. 1986).

Caprice

Prof. Caprice L. Roberts
West Virginia University
College of Law
304.293.7690

>>> Barry Allan 03/10/08 12:37 AM >>>

Hello all

I've been thrown a slight curve ball as a consequence of my involvement in the local student run law centre. We have a student who has been sued for trespass to goods and conversion as the result of taking an air-freshener from a convenience store. It’s a fair cop in terms of the value of the goods involved, but the plaintiff added a nasty consequential damages claim. They've invested in a security system, which involves a monitoring cost, and have claimed a part recovery of those costs as a form of consequential damages.

My application of first principles arrives at the conclusion that such a head of damage could not be recovered, as (a) the security system was in place prior to the activities of this individual student and (b) monitoring costs do not flow from his act of conversion (in much the same way as keeping the lights on, while helpful in detection) do not flow from his activities.

The Judge's handling of causation is simply that "but for the defendant and others wrongfully taking the goods, the plaintiff would not have to incur such expenditure" and that the "ongoing expenditure in the detection and prevention of theft from its store is either a foreseeable consequence of the theft or arises directly from such acts".

The whole notion seems more than a little backward, but I'm having trouble putting my finger on cogent authority. Any thoughts?

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