Also known as: distinctness in kind · different in kind
Written by attorneys — see sources below.
A qualitative distinction as opposed to a mere difference in degree or extent. The distinction determines whether an act falls outside authorized conduct, whether an injury supports private recovery for public nuisance, whether an intervening force supersedes original negligence, or whether requested relief exceeds the scope of a default judgment.
Francis, a real-estate agent employed by Field Properties, was authorized to host an open house at Christian's residence. While buyers toured the home, Francis secretly recorded sarcastic commentary about outdated appliances and posted the edited video to her personal account to promote her own brand. The brokerage argued that the self-promotional ridicule differed in kind from the positive marketing duties assigned to Francis.
Birch Media negligently allowed glass bottles in an upper balcony where intoxicated patrons jostled one another. An unforecast downburst storm then caused an intoxicated patron to drop a bottle from the balcony onto Norman below. The resulting balcony-to-ground injury differed in kind from the trampling harm the inadequate stage barriers had threatened.
Federal agents conducted a warrantless search of Bivens's apartment. Bivens sought damages for the invasion of privacy interests protected by the Fourth Amendment. The harm from official misconduct differed in kind from ordinary private trespass or false-imprisonment injuries.
On the morning of November 26, 1965, agents of the Federal Bureau of Narcotics entered Webster Bivens's apartment in the Bronx. The agents broke open the door, handcuffed Bivens in front of his wife and young children, and thoroughly searched the apartment. They then transported Bivens to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search. Several days later Bivens was released on his own recognizance, and he was never indicted or prosecuted for any offense. Bivens filed suit in the United States District Court for the Eastern District of New York against the six agents in their individual capacities. His complaint sought fifteen thousand dollars in damages from each agent and alleged that the arrest and search were effected without a warrant, that unreasonable force was employed, and that the arrest was made without probable cause. Bivens claimed to have suffered great humiliation, embarrassment, and mental suffering as a result of the agents' conduct. The District Court dismissed the complaint on the ground that it failed to state a cause of action. The United States Court of Appeals for the Second Circuit affirmed the dismissal. The Supreme Court of the United States granted certiorari to review the judgment.
View caseSedima alleged that Imrex engaged in a pattern of mail and wire fraud that injured its business. The claimed injury arose from the overall pattern rather than from any single predicate act. The resulting commercial loss differed in kind from the harm caused by an isolated fraudulent transaction.
In 1979, petitioner Sedima, a Belgian corporation, entered into a joint venture with respondent Imrex Co. to provide electronic components to a Belgian firm. The buyer was to order parts through Sedima. Imrex was to obtain the parts in this country and ship them to Europe. The agreement called for Sedima and Imrex to split the net proceeds. Imrex filled roughly $8 million in orders placed with it through Sedima. Sedima became convinced that Imrex was presenting inflated bills, cheating Sedima out of a portion of its proceeds by collecting for nonexistent expenses. In 1982, Sedima filed this action in the Federal District Court for the Eastern District of New York. The complaint set out common-law claims of unjust enrichment, conversion, and breach of contract, fiduciary duty, and a constructive trust. In addition, it asserted RICO claims under § 1964(c) against Imrex and two of its officers. Two counts alleged violations of § 1962(c), based on predicate acts of mail and wire fraud. A third count alleged a conspiracy to violate § 1962(c). Claiming injury of at least $175,000, the amount of the alleged overbilling, Sedima sought treble damages and attorney's fees. The District Court held that for an injury to be "by reason of a violation of section 1962," as required by § 1964(c), it must be somehow different in kind from the direct injury resulting from the predicate acts of racketeering activity. It found no allegation here of any injury apart from that which would result directly from the alleged predicate acts of mail fraud and wire fraud. Accordingly, it dismissed the RICO counts for failure to state a claim. A divided panel of the Court of Appeals for the Second Circuit affirmed. After a lengthy review of the legislative history, the Court of Appeals held that Sedima's complaint was defective in two ways. It failed to allege an injury "by reason of a violation of section 1962." It also failed to allege that the defendants had already been criminally convicted of the predicate acts of mail and wire fraud, or of a RICO violation. In light of the variety of approaches taken by the lower courts and the importance of the issues, the Supreme Court granted certiorari.
View caseA police department circulated a flyer listing Davis as an active shoplifter. Davis claimed the publication deprived him of liberty without due process. The reputational injury differed in kind from the types of harm that trigger constitutional protection for life, liberty, or property.
In June 1971 Edward Charles Davis was arrested in Louisville, Kentucky, on a shoplifting charge while employed as a photographer at a retail store. The charge was arraigned in September 1971. Davis pleaded not guilty. The charge was filed away with leave to reinstate. It was ultimately dismissed in December 1972 after the events at issue. In late 1972 Louisville Police Chief Paul and Jefferson County Police Chief McDaniel combined their departments' efforts. They distributed a five-page flyer containing mug shots and names to approximately 800 merchants in the Louisville metropolitan area. The flyer was headed "NOVEMBER 1972 CITY OF LOUISVILLE JEFFERSON COUNTY POLICE DEPARTMENTS ACTIVE SHOPLIFTERS" and listed Davis among the individuals shown. The persons depicted had been arrested during 1971 and 1972. Davis's photograph and name appeared on page two. The flyer stated it was distributed so merchants could inform security personnel to watch for the subjects. At the time the flyer circulated, Davis was employed as a photographer by the Louisville Courier-Journal and Times. The flyer came to the attention of Davis's supervisor. The supervisor called him in to discuss the matter. The supervisor informed Davis he would not be fired but warned him not to find himself in a similar situation again. Davis then filed this action under 42 U.S.C. § 1983 in the United States District Court for the Western District of Kentucky. He alleged that the police chiefs' distribution of the flyer deprived him of liberty without due process of law and violated his right to privacy. The District Court granted petitioners' motion to dismiss the complaint for failure to state a claim. The Court of Appeals for the Sixth Circuit reversed. It held that the distribution implicated a liberty interest and required prior notice and an opportunity to be heard. The Supreme Court granted certiorari to review the constitutional questions presented.
View caseA plaintiff must show harm qualitatively different from that suffered by the general public. Economic loss to a business that depends on public access to a recreation area satisfies the requirement when the public at large suffers only recreational inconvenience.
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The force supersedes when the resulting injury falls outside the scope of risk created by the original negligence. A storm that turns a balcony jostling risk into a falling-object injury from above meets the test because the harm type differs from the trampling risk threatened by inadequate stage barriers.
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A default judgment cannot award relief that differs in kind from the demand stated in the complaint. Adding punitive damages or a forward-looking declaratory judgment when only compensatory contract damages were pleaded violates the rule because the new categories are qualitatively different.
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Conduct falls outside the scope when it is qualitatively different from the tasks the servant was hired to perform. Secretly filming and posting sarcastic commentary about a listed home to promote the agent's personal brand differs in kind from the positive marketing duties authorized by the brokerage.
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…acting under color of law, while no less compensable in damages than those inflicted by private parties, are substantially different in kind, as the Court's opinion today discusses in detail. See Monroe v. Pape , 365 U. S. 167, 195 (1961) (HARLAN, J., concurring). It seems to me entirely proper that these injuries be…