Also known as: differ in kind · difference in kind · differs in kind
Written by attorneys · grounded in primary & secondary sources — see below
A qualitative distinction between two things as opposed to a mere difference in degree or extent. The distinction determines whether conduct falls outside authorized bounds, whether relief exceeds pleadings limits, or whether harm qualifies as special for standing or superseding-cause purposes.
Miguel returned to the jobsite at midnight to help his cousin move personal debris using the company skid-steer loader. He backed the machine into a neighbor's parked car. Because the nighttime personal errand was different in kind from daytime concrete supervision, the contractor avoided vicarious liability.
Elle sued for the lost settlement amount only. After default she requested an additional emotional distress award and an injunction. The clerk could enter judgment solely for the pleaded sum because the new remedies differed in kind from the complaint demand.
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Birch Media's barrier negligence created a foreseeable risk of stage-area trampling. An unforecast downburst instead caused a balcony-to-ground bottle drop. The resulting balcony injury was different in kind from the trampling harm threatened by the barrier omission, satisfying the superseding-cause test.
Federal narcotics agents conducted a warrantless search of Bivens's apartment. Bivens sought damages directly under the Fourth Amendment. The Court recognized a federal damages remedy because the official invasion produced injuries different in kind from ordinary private trespass harms.
The Tahoe Regional Planning Agency imposed a multi-year moratorium on development. Landowners argued the temporary restriction constituted a taking. The Court held that temporary and permanent deprivations of all use are not different in kind for purposes of the Just Compensation Clause.
Los Angeles County enacted an ordinance barring reconstruction of a church destroyed by flood. The church sued claiming a taking. The Court treated the temporary regulatory restriction as not different in kind from a permanent taking requiring just compensation.
Conduct falls outside the scope when it is different in kind from the tasks the employee was hired to perform. A nighttime personal errand using company equipment, for example, is different in kind from daytime supervisory duties and therefore takes the act outside respondeat superior.
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A default judgment may not award relief different in kind from the demand in the pleadings. Emotional distress damages or injunctive relief requested only after default therefore cannot be entered by the clerk and must be sought from the court after amendment.
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A private plaintiff may recover damages for public nuisance only upon showing injury different in kind from that suffered by the general public. Economic loss to a business uniquely dependent on access to the affected public resource satisfies the requirement.
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An intervening force is a superseding cause when it produces harm different in kind from the harm the defendant's negligence threatened. A storm that converts a foreseeable stage-area trampling risk into a balcony-to-ground injury meets this test.
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…sentiment' "). School voucher programs differ, however, in both kind and degree from aid programs upheld in the past. They differ in kind because they direct financing to a core function of the church: the teaching of religious truths to young children. For that reason the constitutional demand for "separation" is of…