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From Flashcardlet > Remedies I > Flashcards

Remedies I Flashcards

1
Q

Damages

A

Must be:

  1. Foreseeable - proximate cause (foreseeable at the time of the injury)
  2. Unavoidable - P must take reasonable steps to mitigate
  3. Causal - but for test. Wrongful conduct caused the injury
  4. Certain - damages can’t be speculative. If past loss, look at historical records. If future loss, P must show future damages are more likely than not to happen.
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2
Q

Types of Tort Remedies

A
  1. Damages

2. Restitution

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3
Q

Purpose of Damages

A
  1. Compensate for Loss (compensatory)

2. Deter behavior (non-compensatory)

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4
Q

Special Damages (Economic Losses)

A

P can recover all economic losses proximately caused (past/future medical expenses, loss of earnings)
Calculation must be with sufficient certainty

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5
Q

General Damages (Non-Economic Losses)

A

Ex. - pain and suffering, distress, etc.

P can recover past + future non-economic losses (P + S, emotional distress, loss of enjoyment of life, permanent disfigurement)
DO NOT need to be certain; jury can award any amount it wishes subject to proper restrictions

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6
Q

Nominal Damages

A

Awarded where P has no actual injury: establishes or vindicates P’s rights
Ex. D walks across P’s land to get to road. P has no quantifiable compensatory damages (no injury); P can get nominal damages (also discuss injunctive relief)
No nominal damages: Some claims required actual injury (ex. fraud), so no nominal damages for those cases

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7
Q

Punitive Damages

A

Awarded to punish D for willful, wanton, or malicious conduct; generally limited to intentional torts or reckless misconduct – “bad guy” conduct (more than negligence)

Look at:
degree of reprehensibility
ratio - recent law favors single-digit ratio, typically 2 to 3 times the compensatory award

**Mention - Constitutional limitation on punitive damages in that they cannot be excessive to the extent that they operate like criminal penalties without the protections of the criminal law.

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8
Q

Interest and Attorney’s Fees

A

Can obtain:
Per Statute
Per Private Attorney General Doctrine
Per Class Action

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9
Q

Types of Restitution

A 
Legal Restitution (also known as Assumpsit or Quasi-Contract)
Equitable Restitution
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10
Q

Theory of Restitution

A

Alternative to compensatory damages based on the theory that D should not be unjustly enriched; restore D’s unjust gain to P. Even if both compensatory damages and restitution can be found, Plaintiff must choose only one. Select the one that recovers the most for the Plaintiff.

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11
Q

Legal Restitution - Common Counts

A
  1. Money Had and Received - you had my money, now give it back
  2. Quantum Meruit - Services
  3. Quantum Valebant - Goods
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12
Q

Restitutionary Causes of Action

A
  1. Ejectment - land (specific plot of land; unlawful detainer)
  2. Replevin - chattel (to get back a specific painting, etc.)
  3. Quantum Meruit or Quasi Contract - Contract implied in law for services
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13
Q

Defenses to Legal Restitution

A

Statute of Limitations

Volunteer/Donor

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14
Q

Preclusion Doctrine

A

provides that legal claims should be tried first, before a jury, before equitable claims. Issues fully litigated in the legal portion of the trial will be prevented from being relitigated in the equitable portion of the trial.

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15
Q

TRO

A
  1. must bring a motion to the court requesting a TRO
  2. Request must comply with FRCP 65 if in federal court
  3. must attempt to serve other party with notice of TRO by personal service
    a. May be brought Ex-Parte with a declaration of the attempts to serve D with notice of TRO by personal service.
  4. P must show by sworn affidavit or verified complaint that immediate and irreparable injury, loss or damage will result if TRO not imposed.
  5. A noticed hearing giving D opportunity to appear and oppose is req’d. If unable to serve, a hearing must be expedited and heard before all other matters.
  6. TRO expires in 14 days if not renewed or made perm. P has to request renewal of TRO or conversion of it to a Prelim. Injunction after 14 days.
  7. D enjoined by a TRO w/out notice can make a motion to dissolve on 2 days’ notice.
  8. Rule 65 requires P post a bond for the protection of D in the event they are wrongfully enjoined.
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16
Q

Ebay test for imposition of a permanent injunction

A
  1. P has suffered an irreparable injury
  2. Remedies available at law such as monetary damages are inadequate to compensate P for the injury
  3. Considering the hardships as between P&D, the remedy in equity is warranted;
  4. that the public interest would not be disserved by a permanent injunction.
17
Q

Factors other than ebay for perm injunction

A
  1. A substantive violation against D has been proven at trial
  2. No bond required
  3. Hardship to D is not disproportionate to the benefit to P if granted
  4. Must be clear on the face of the doc what action is restrained and why
18
Q

Equitable Remedies

A

Equitable remedies are based upon historical in Personam and Specific Decrees which assert power over the person of the Defendant.

19
Q

Top 3 equitable remedies

A

injunction, specific performance, constructive trust

20
Q

Defenses to Equitable Remedies

A

Laches

Unclean Hands

21
Q

Laches

A

Affirmative Defense

  1. P delayed in bringing the action
  2. delay was unreasonable and inexcusable
  3. delay caused prejudice to D
22
Q

Unclean Hands

A

one who comes to equity must come with clean hands
-a level of knowing, intentional misconduct on the part of plaintiff - party must have acted willfully: fraudulent, unconscionable or illegally

23
Q

Causal Apportionment

A

Each party held liable for the injury that was directly and proximately caused

24
Q

Constructive Trust

A

The fraud rectifying remedy. By operation of law, the law transforms the wrongdoer into a trustee.

  1. wrongful act
  2. specific property acquired by wrongdoer that can be traced to the wrongful act
  3. an equitable reason why the owner of the property should not be allowed to keep the property
25
Q

Equitable Lien

A

to prevent unjust enrichment to another party
Elements
1. a debt, duty, or obligation owed by one person to another
2. An identifiable res to which that obligation fastens
**Equitable lien unavailable if res transferred to a BFP

26
Q

Quantum Meruit (Quasi-Contract)

A

may be present when no contract exists and not tort or contract action exists but an obligation is created by operation of law to avoid unjust enrichment.

27
Q

Unjust Enrichment

A
  1. P acted in good faith
  2. Unintentional error or innocent mistake by P
  3. Causes P to confer an unintentional benefit upon D
  4. D is unjustly enriched by the benefit, through no right or entitlement
28
Q

Remedial goal of unjust enrichment

A

The remedial Goal: To return the unjust enrichment mistakenly incurred and return the parties to their rightful positions

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