Also known as: in kind
Written by attorneys · grounded in primary & secondary sources — see below
A Latin phrase indicating that one thing belongs to the same general class or category as another though the two are not identical in every respect.
MetroEnergy employs Carlos to read meters and service gas lines at customer properties. While on duty Carlos detours to a friend's house several blocks off his route and drops his tool bag while demonstrating the equipment for fun. The damage occurs during an activity that is different in kind from the meter-reading and service tasks Carlos was hired to perform.
Gerald and Erin inherit a farm as joint tenants. The property contains the region's only authorized irrigation well and water regulations prohibit drilling additional wells or separating water rights. Any physical split would leave one sibling with land that cannot be irrigated or farmed, so a court orders a judicial sale instead of partition in kind.
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Elle sues West Counsel for malpractice and pleads only the $200,000 lost settlement. After default she requests an additional $75,000 in emotional distress damages plus a permanent injunction. The clerk may enter judgment only for the $200,000 because the added damages and injunction differ in kind from the relief demanded in the pleadings.
Harbor Waste negligently stores chemical drums where ordinary storms could cause localized leakage into adjacent wetland soil. An unprecedented hurricane surge sweeps the intact drums miles inland into a regional drinking-water reservoir. The resulting large-scale municipal contamination is different in kind from the localized seepage risk that made the storage negligent.
A partnership holds a single non-fungible parcel of real estate. One partner demands a distribution of an undivided interest in the land rather than cash. The partnership may not distribute the asset in kind because the parcel is not fungible and the partner would not receive a percentage equal in value to the partner's share.
A dissolving corporation holds specialized manufacturing equipment that cannot be divided into equal shares among shareholders. The corporation sells the equipment for cash and distributes the proceeds rather than attempting an in-kind distribution of the indivisible assets.
Conduct falls outside the scope when it is different in kind from the work the employee was hired to perform. Socializing at a non-customer's home and casually demonstrating tools is not the same general nature as meter-reading and service duties at customer properties. Because the conduct fails the same-kind requirement the employer is not vicariously liable.
Supporting sources
A court may order sale when physical characteristics or external legal constraints prevent a fair and equitable division. A single authorized irrigation well that cannot be duplicated or separated under water regulations makes equal parcels unusable for farming. The impossibility of equitable physical division justifies a judicial sale and division of proceeds.
Supporting sources
A default judgment must not differ in kind from or exceed in amount the relief demanded in the pleadings. A request for emotional distress damages and a permanent injunction exceeds the pleaded $200,000 lost-settlement claim. The clerk may enter judgment only for the sum certain pleaded. Other relief must be sought from the court.
Supporting sources
An extraordinary natural force supersedes when it produces harm different in kind from the risk that made the conduct negligent. Ordinary storms causing localized wetland seepage were the foreseeable risk. An unprecedented hurricane surge that transports intact drums miles into a drinking-water reservoir creates qualitatively different municipal contamination and breaks the chain of proximate cause.
Supporting sources
…at 193, 519 F. 2d, at 842. Such distinctions in degree become significant only when they can be said to amount to differences in kind. Compare Kusper v. Pontikes , 414 U. S. 51 (1973), with Rosario v. Rockefeller , 410 U. S. 752 (1973). (c) Apart from these First Amendment concerns, appellants argue that the…