Tort Remedies

Question 1

Balancing of Hardships

Answer 1

1. Courts will consider all facts related to the matter and their impact, positive or negative.
2. Must be gross disparity between defendant’s detriment and plaintiff’s benefit:
   Example: Tear down whole house because one inch of it was on plaintiff’s property
3. Even then no balancing of the hardships if the defendant’s conduct was willful.
4. If it’s just negligence and we decide to balance the hardships in whole or in part consider awarding money damages. If we deny injunction to defendant we need to at least give plaintiff money damages.
5. Hardship to the public is also taken into account.

Hardships must balance in favor of party granting the preliminary injunction. Irreparable harm requires showing that the harm will occur while waiting for a full trail and therefore plaintiff needs relief now.

Question 2

Erroneous injunction

Answer 2

Parties subject to an erroneous injunction must obey it until it is modified or ends.

Question 3

Contempt

Answer 3

Disobeying a court order comes with penalties.

Civil: Used to coerce defendant into obeying the order. This may include fines, and/or imprisonment for lack of payment. If the defendant is imprisoned then they remain incarcerated until they pay the fines.

Criminal: Used to punish defendants. This may include fines, and/or imprisonment. The Constitution protects against overly long sentences.

Question 4

Injunction Defenses (Tort)

Answer 4

Unclean Hands
Relative Hardship
Contrary to Public Interest
Repetition Unlikely
Impossibility
Interference with Free speech
Erroneous injunction
Laches
Injunctions Against Criminal Prosecution
Criminal Acts (Except Public Nuisance)

Question 5

Relative Hardship

Answer 5

Despite a proper showing in other respects of right to injunctive aid, if a plaintiff is merely seeking to protect a technical and unsubstantial right, and the issuance of the injunction will bring no actual advantage, it may be refused if it will result in hardship.

Question 6

Contrary to Public Interest or Statute

Answer 6

Injunctive relief may be denied if the act complained of is found to be in the public interest. As a rule, unless a statute is unconstitutional, injunctive relief will not issue to prevent the execution of a public statute or enforcement of a public statute by law enforcement officers.

Question 7

Unclean Hands

Answer 7

The plaintiff’s inequitable or improper conduct related to the lawsuit will cut of its right to equitable relief against a defendant.

Question 8

Impossibility - Injunctive Relief Defense

Answer 8

Carrying out the terms of the injunction is impossible

Question 9

Erroneous Injunction

Answer 9

Injunction would no longer be granted because law or facts changed.

Question 10

Laches

Answer 10

An unreasonable delay by the plaintiff in initiating his or her equitable claim that results in prejudice to the defendant. Time starts when plaintiff knows of the injury.

If applicable still consider money damages.

Laches is never greater than the statue of limitations

Question 11

Repetition Unlikely

Answer 11

An injunction will not issue when, because of a change in circumstance, a repetition of the act complained of is unlikely. Thus, unless evidence shows that the wrongful conduct will probably recur, injunctive relief will be denied if the defendant has voluntarily discontinued the activity.

Question 12

All Legal Remedies (list)

Answer 12

Money Damages
- Compensatory damages
- General Damages
- Special Damages
- Nominal Damages
- Punitive Damages
*Duty to Mitigate

Question 13

Compensatory Damages

Answer 13

An award of money damages based on the loss or injury to the plaintiff and are intended to put the plaintiff in the position she/he would have been in if the injury had not occurred. Requires:

1) Causation: Tortious activity caused the injury
2) Foreseeability: Injury must have been foreseeable at the time of the tortious act
3) Unavoidable: Plaintiff could not have avoided the injury. Must take REASONABLE steps to avoid or minimize the damages
4) Certainty: Damages cannot be too speculative.

Question 14

“Certainty” - Compensatory damages

Answer 14

Damages cannot be too speculative.

• Plaintiff must establish past losses with more certainty than future losses
• Plaintiff must show future losses are more likely to happen than not.
• A historical record helps to provide certainty.

Question 15

All or nothing rule - Compensatory damages

Answer 15

If future losses are more likely to happen than not then they are awarded, otherwise they cannot be recovered.

Question 16

General Damages

Answer 16

Non-economic losses to compensate for injuries or losses that a reasonable person would foresee could result from the wrongful conduct.

Basic certainty required - need not be specifically pleaded. Jury can award any amount subject to proper instructions

Question 17

Special Damages

Answer 17

These are economic loses. Basic certainty rules do not apply and must be specifically pleaded. Calculation for special damages must be made with sufficient certainty.

Question 18

Nominal Damages

Answer 18

Are awarded even though plaintiff has no actual injury to establish or to vindicate the plaintiff’s rights.

Question 19

Punitive Damages

Answer 19

Awarded to punish the defendant for willful, wanton or malicious conduct. Must first be awarded other money damages.

Requires:
1) Defendant’s conduct must be reprehensible.
2) Must be a disparity between the actual or potential harm suffered by the plaintiff and the punitive award
3) Defendant’s fault must exceed negligence
4) Damages must be awarded in an amount relatively proportionate to actual damages. Punitive damages that are excessively high to be a violation under the Due Process Clause and has limited Punitive Damages to ten times the amount of compensatory damages (unless conduct facts are extreme).

Outline:
Reprehensible Conduct
Disparity between actual or potential harm and the punitive award
Fault exceeds negligence
Damages Relatively proportional

Question 20

Difference between the elements of a TRO and a Preliminary Injunction

Answer 20

PI does not require a showing of immediate harm; only a showing that the harm is likely to occur if an injunction is not granted during the pendency of the action.

Question 21

Injunction

Answer 21

When the defendant is ordered to do something (mandatory injunction) or refrain from doing something (a prohibitory injunction). It is almost always coupled with damages.

There are three types: Permanent, Preliminary, and Temporary restraining order

Question 22

Permanent Injunction

Answer 22

The defendant is ordered to do something (mandatory) or is ordered to refrain from doing something (prohibitory). It is almost always coupled with damages incurred in time period prior to obtaining injunction.

1) Legal Remedy Alternatives are inadequate
2) Existence of a property right
3) feasibility of enforcing the injunction
4) balancing hardships.

** If conduct is willful then no balancing required

Question 23

Restitution Damages

Answer 23

Defendant should not be unjustly enriched and should not have wrongfully obtained a benefit.

Damages are based on the benefit to the defendant, as judged by the value to the defendant.

Tip: damages is based on harm but restitution is based on benefit

Question 24

Waiver of Tort and Suit in Assumpsit

Answer 24

An action whereby a tortfeasor has benefited by their wrong and the plaintiff brings an action for restitution, waiving the tort, because the plaintiff cannot get both compensatory and restitutionary damages.

Plaintiff can get punitive damages IF the underlying cause is a tort.

Discuss compensatory damages and Resitutionary damages and suggest P pick the one with the most return in value.

Question 25

Replevin

Answer 25

Plaintiff recovers possession of specific personal property wrongfully or unlawfully taken and get compensation for resulting loss.

Property can be recovered at start of the action. Bring up damages for lost use (compensatory) or benefit to defendant (restitution) during the time of detention.

1. P has right to possess and
2. Wrongful withholding.

Question 26

Constructive Trusts

Answer 26

An equitable remedy which arises out of operation of law, to prevent wrongfully acquired property (misrepresentation) traced to the plaintiff’s property to which the defendant has title, and the defendant is unjustly enriched when there is an inadequate legal remedy.

A BFP prevails so can’t get a trust when suing a defendant who already sold property to a BFP

1) Wrongfully acquired property which D now has title
2) traced to P
3) D is unjustly enriched
4) Inadequate legal remedy

Question 27

Equitable Lien

Answer 27

Imposed on wrongfully acquired property to which the defendant has acquired title and there has been an unjust enrichment. Once imposed there is an immediate court ordered sale of the property and the monies go to the plaintiff.

Usually in place when the defendant gets the property and its character changes, i.e. - Builds a farm on it, or trades the computer for a guitar.

Lien acts as collateral until it is sold and proceeds are distributed.

Question 28

Purchase Money Resulting Trust (PMRT)

Answer 28

A remedy imposed when a beneficiary funds the property purchase, but the beneficiary puts the title in the name of another.

Upon imposition, the property is to be held for the benefit for the party providing the consideration by the party named in the title, and that party must either convey the property to the paying party or otherwise care for the property as a typical trust arrangement.

Question 29

Permanent Injunction (Rule Statement)

Answer 29

An injunction is a decree ordering a party to perform or refrain from performing a certain act. A permanent injunction is an injunction mandating performance after a judgment on the merits has been issued.

P must show:
1) Legal remedy inadequate
2) Property right
3) Feasibility of Enforcement
4) Balance of hardship in favor of enforcement

Question 30

Inadequacy of Legal Remedy

Answer 30

Money damages are inadequate when:
1) They are too speculative,
2) They would result in multiplicity of suits,
3) The harm is not yet ripe, or
4) There is unique property involved.

Question 31

Permanent Injunction Headings

Answer 31

Permanent Injunction
Inadequacy of Legal Remedy
Property Right
Feasibility
Balancing og Hardships
Defenses

Question 32

Preliminary Injunction (Rule Statement)

Answer 32

A preliminary injunction is issued before a final judgment on the merits.
Courts consider:
1) How to maintain status quo prior to trial
2) Balance of hardship in favor of granting prelim
3) The likelihood of success on the merits of underlying claim

Question 33

Preliminary Injunction Headings

Answer 33

Preliminary Injunction
Maintaining Status Quo
Balance of Hardships
Likelihood of Success on Merits
Defenses

Question 34

Temporary Restraining Order (“TRO”) (Rule Statement)

Answer 34

Short term decree issued to maintain the status quo pending the issuance of a preliminary injunction. A TRO is often issued in an emergency situation in hearings involving one party. TRO is limited to 10-15 days unless renewed or continued at prelim hearing.
P must show irreparable harm if forced to wait for hearing on preliminary injunction.

Question 35

TRO Headings

Answer 35

Temporary Restraining Order
Irreparable Harm
Defenses

Question 36

Legal Restitutionary Remedies

Answer 36

Restitutionary Damages (benefit to the Defendant)
Replevin
Ejectment

Question 37

Equitable Restitutionary Remedies

Answer 37

Constructive Trust
Equitable Lien
Quasi Contract
Purchase Money Resulting Trust

Question 38

Compensatory Award Discount

Answer 38

The Judgment must be a single lump sum payment that will be discounted to present value without taking inflation into account except under the more modern rule.