Damages and Remedies

Question 0

Difference between tort and K damages

Answer 0

In K cases, consequential damages are generally not recoverable unless allowed by statute or K itself

Question 1

Measure of Tort Damages

Answer 1

amount necessary to make P whole

Policy = compensation

Question 2

Types of Damages

Answer 2

1. Compensatory
2. General
3. Liquidated
4. Punitive
5. Special
6. Unliquidated

Question 3

Types of compensatory damages

Answer 3

1. General
2. Special
3. Nominal

Question 4

For compensatory damages, what is the relationship between the damage and the wrongful act?

Answer 4

1. Direct damage

2. Consequential damages

Question 5

General Damages: what is it?

Answer 5

type of compensatory damages–tort cases

Presumed to flow from the commission of a tort act.
Noneconomic and Non-pecuniary in nature

Question 6

How do you measure general damages?

Answer 6

measured by enlightened conscious of an impartial jury

Question 7

Where does general damages come from?

Answer 7

1. Pain and Suffering: inferred from physical injuries
   - -shown subjectively (party’s own testimony) or objectively (through expert testimony or testimony of TP’s observation testimony)
2. Mental Pain and Suffering: accompanies pain and suffering. Must be conscious to recover.
   - -If entire injury = mental –> intentional/willful/wanton misconduct by D must be proved, negligent conduct must involve an impact resulting in physical injury or aggregation of prior diagnosed mental illness.

Question 8

Special Damages

Answer 8

Type of compensatory damages– tort cases

Loss of money or something that money can buy.

Paper damage- usually can produce documentation to prove it

Must be plead with particularity in the complaint

Mere sentimental value is NOT proper

Future special damages must be reduced to present cash value (calculated by discount rate)

Question 9

Ga law: damages from motor vehicle accident

Answer 9

Ga provides separate causes of action for PI and property damage arising from motor vehicle accidents.

Question 10

Punitive Damages

Answer 10

Type of compensatory damages–tort cases

Evidentiary standard: clear and convincing
Policy: deterrence/punishment
Pleading: must ask for it complaint/amendment to complaint
Trial procedure: Bifurcated: 2 verdicts/1 jury
Recovery Caps:
- $250,000 per case
- Unlimited in products liability and cases where D acted with specific intent, but the award must be in a ration to the compensatory damages, likely less than 10:1 ratio.

Not available against the sovereign

When injury is mental only–only 1 compensatory recovery, no punitive damages allowed

Question 11

Products Liability Punitive Damages Restrictions

Answer 11

Ga extracts bulk of unlimited award (75% extracted)

Only one recovery per a particular product defect (race to recovery first)

Ga supreme ct has rejected constitutional challenges on the cap and extraction provisions

Question 12

Restriction on Damages

Answer 12

1) Duty to Mitigate
2) Speculative Damages = NOT recoverable
3) Collateral Source Rule
4) Economic Loss Rule

Question 13

Duty to Mitigate

Answer 13

Restriction on damages

Applies in tort/K cases

P has duty to lessen damages by exercising ordinary care.
Duty = subject to reasonableness

Does not apply to intentional torts or fraud or failure to wear as seatbelt

Question 14

Are speculative damages recoverable?

Answer 14

No, this is a limitation on damages

Question 15

Are lost future profits recoverable?

Answer 15

Yes, they are recoverable in tort cases when 1) proximately causes and 2) reasonably certain.

Intentional wrongs remove the element of remoteness.

Question 16

Collateral Source Rule

Answer 16

Restriction on damages

Excludes payment from collateral sources to the P.

Collateral sources examples: insurance, sick pay from work, gifts

Collateral Status in Ga = valid

Is not applied if the P opens the door or in K cases generally

Question 17

Economic Loss Rule

Answer 17

Restriction on damages

When a defective product injures only itself, or a system that it is a component of, the P is limited to K remedies (including applicable warranties)

Precludes recovery in cases of consequential damages, such as loss profits.

Question 18

Damages for Loss of Consortium

Answer 18

Damages include loss to an uninjured spouse. Uninjured spouse can recover from tortfeasor for the affects of injuring the spouse. (such as how the martial relationship was altered)

Measure: enlightened conscious of impartial juror

Loss of Child’s consortium: limited to value of services (have to show that the child was bringing in value, i.e. paycheck)

Loss of Parental consortium: not available in Ga

Question 19

Conversion Damages

Answer 19

3 Possible remedies:

1) Make D give it back intact

2) If its damaged, D must pay market price
- -Market price = highest proved value between time of conversion and time of trial

3) Can get rent for each day and get your stuff back

Question 20

Damages for Fraud

Answer 20

Give Benefit of the bargain

Policy: deterrence

Other damages available = punitive, consequential, general and atty. fees

Question 21

Damages for interference with economic opportunities

Answer 21

P may recover against a D who interferes with present or perspective business or K relations.

Measure = loss of profits

P must show interference was malicious, intentional

Punitive damages may also be recover

P may not recover if D’s conduct = privileged or if D was not a stranger to the K

P’s recovery may be limited to single satisfaction rule, which bars P from recovering K expectations from both the D AND the party who breach

Question 22

K damages: purpose

Answer 22

Put wronged party in the same position as if bargain had been fulfilled according to its terms

Question 23

General Measure of K damages

Answer 23

K damages limited to

1) those arising directly from the breach of K
2) what was contemplated by the parties @ the time K was made

Question 24

Implied K

Answer 24

Restitutionary remedy =Quantum Merit -- When goods or materials have been furnished by one to another or services have been rendered, the law implies a promise to pay the reasonable value thereof. Measure = value of goods to the receiptant

Question 25

Remote or Consequential Damages in K

Answer 25

Absent a statutory or K provision, not recoverable unless traceable solely to the breach and capable of exact computation

Question 26

Fraudulent Ks

Answer 26

When a K = fraudulent, injured party, upon discovering the fraud, may 1) affirm the K and sue for breach OR 2) rescind the K and sue for fraud ***Ks with merger or entire agreement clauses: A party affirming a K containing these clauses may be estopped from claiming reliance on external fraudulent representations.

Question 27

K Punitive Damages

Answer 27

Not recoverable in breach of K except for breach of promise to marry

Question 28

Equity and Non-Equity Remedies Steps

Answer 28

Step 1: General requirements for equitable relief satisfied? (Legal remedy must be inadequate, equitable relief must be reasonable) Step 2: Specific requirements for particular equitable remedy sought satisfied? Step 3: Any equitable defenses available to prevent relief?

Question 29

What are the general requirements for an equitable remedy?

Answer 29

1) Legal remedy must be inadequate | 2) Equitable remedy must be feasible

Question 30

Examples of when Legal Remedies are inadequate

Answer 30

1) Subject matter is unique 2) damages = speculative/uncertain 3) multiple lawsuits are required 4) D = insolvent 5) Harm = irrevocable

Question 31

When is an equitable remedy feasible?

Answer 31

1) Presence in the forum state: - -D is in the jurisdiction (in personam D) - -prop is subject to the litigation 2) Capacity of equity court to determine/supervise compliance

Question 32

Equity might decline relief in cases involving what?

Answer 32

1) subjective application of taste (D doesn't like the painting P has done) 2) requires constant or continuous supervision 3) would compel a rendition of personal service 4) would compel service in another jurisdiction

Question 33

Jurisdiction to Award Non-Monetary Remedies

Answer 33

Federal Court: District Courts Ga Court: Superior Court --Lower courts have the authority to transfer cases to the Superior Court when equitable relief becomes necessary)

Question 34

Equitable Relief: Jury Trials?

Answer 34

Generally no right to jury trials A jury may determine equitable issues if 1) statute authorizes it 2) common facts involving separate claims for monetary damages 3) single claims of legal and equitable issues

Question 35

Preventative Injunction

Answer 35

Equity can prevent a threatened wrong/injury with a preventative injunction

Question 36

Corrective Injunction

Answer 36

Equity can redress an injury that has been inflicted

Question 37

Obtaining injunctive relief

Answer 37

1) Must satisfy all requirements for equitable relief 2) no equitable defense can be available 3) determine if particular tort is one for which equitable relief is available All equitable relief = discretionary

Question 38

Injunctions are normally available for ??

Answer 38

1) Trespass 2) Conversion 3) Intrusion on Seclusion (Invasion of privacy) 4) Appropriation of Likeness (Invasion of Privacy)

Question 39

Injunctions are sometimes available for ??

Answer 39

1) to eliminate a nuisance provided it is continuing/ongoing and not a completed nuisance 2) to prevent waste: provided that is destructive (causing permanent harm) or permissive (failing to upkeep property) but not for ameliorative (changing prop but in a way that increases its value ) 3) tortious interference unless D's conduct = privileged

Question 40

Injunctions are normally NOT available for ??

Answer 40

1) Defamation 2) False Light 3) Public Disclosure of Embarrassing Facts --These torts produce constitutional concerns about prior restraint on First Amend rights.

Question 41

Will equity enjoin criminal proceedings?

Answer 41

No. Equity will also not enjoin threatened criminal proceedings absent extraordinary circumstances The right to appeal is considered an adequate legal remedy in criminal proceedings.

Question 42

Restrictive Covenants

Answer 42

Ga allows them; Covenant Not to Compete in employment & commercial Ks An employee may agree to refrain, for a stated period of time after employment ends, from 1) soliciting business away from employer's customers and 2) engaging inn competition against employer. 2 year limit = normally reasonable Unlimited = reasonable in confidentiality agreements 5 years = reasonable in sale of business restrictive covenants Restrictions on geographic territory must be reasonable --limited to the areas in which employer does business during employment relationship. Violations can be prevented by injunctions Does NOT apply to attorneys

Question 43

Blue Pencil Rule

Answer 43

allows cts to limit the over broad provision to something the court considers reasonable

Question 44

Interlocutory Injunctive Relief

Answer 44

Necessary to preserve the status quo for the time period needed to determine issues in litigation . Types: 1) TRO: obtained w/out a hearing, effective for a very short period of time (30 days in GA) Must show immediacy of injury that will justify proceeding w/out hearing 2) Interlocutory Injunction: only granted after hearing both sides, injunction bond is normally required

Question 45

Obtaining Interlocutory Injunctive Relief

Answer 45

To obtain relief, Petitioner must show: 1) irrevocable injury 2) likelihood of success on the merits

Question 46

Specific Performance

Answer 46

Equitable remedy: party to K is ordered to perform according to its terms How to obtain it? 1) Meet general requirements for equitable relief 2) No equitable defenses available 3) specific performance requirements = met

Question 47

Requirements for Specific Performance

Answer 47

1) Satisfy general requirements for equitable remedies 2) show existence of K 3) all condition precedents = met 4) mutuality of remedy

Question 48

How to establish a valid K for specific performance?

Answer 48

Petitioner must show: 1) certainty of terms (identity of parties, consideration, time/manner payment, subject matter) Must be greater certainty than normally required Consideration: adequacy of consideration itself = not relevant except when K = unconsciousnable or K = adhesion K

Question 49

For specific performance, how do you tell if all the conditions have been fulfilled?

Answer 49

1) make sure there is no time of the essence clause. This clause insists full performance by a certain date, failure to comply can prevent specific performance unless equity ct ignores strict compliance. 2) Sufficiency of title: if seller cannot convey marketable title, equity will not grant specific performance unless - deficiency = minor, specific performance = granted w/ reasonable deduction of the price - deficiency = severable = specific performance = granted w/ reasonable deduction of the price

Question 50

Equity court will ignore strict compliance with a time of the essence clause when: ??

Answer 50

1) Loss to other party = small 2) undue hardship would occur with compliance 3) time of essence = waived 4) tardiness was de minims

Question 51

For specific performance, how to you tell if mutuality exists?

Answer 51

Remedies are mutual if 1) both parties can perform 2) P's counter performance can be secured

Question 52

What does mutuality of remedies mean?

Answer 52

One party to a K is not entitled to specific performance unless the other party would also be entitled to have the K strictly enforced.

Question 53

Specific Performance on Land K

Answer 53

If a K to sell land is enforceable by specific performance than the doctrine of equitable conversion takes effect. Buyer is considered the owner of prop upon executing the K, seller retains only a security title until purchase price = paid

Question 54

Equitable Conversion

Answer 54

Majority Rule: (Includes GA): Buyer has risk of loss if the building = damaged/destroyed before closing. Seller = entitled to specific performance w/out reduction in price, but buyer may have right to equity in insurance proceeds collected by seller Minority Rule: seller has risk of loss until possession is delivered.

Question 55

Means to enforce specific performance in land K

Answer 55

1) Contempt: ordering seller to convey; buyer to pay) | 2) Decree (transferring title by court order upon payment)

Question 56

What specific performance will be ordered when only the buyer and property are present?

Answer 56

Specific Performance by decree

Question 57

What specific performance will be rendered when only the buyer and seller are present (prop is not)

Answer 57

Contempt

Question 58

What specific performance will be rendered when seller and property are present but buyer isnt?

Answer 58

Specific performance = unlikely

Question 59

What is Rescission?

Answer 59

Remedy where voidable K is put to an end and the parties are treated as though it had never been made.

Question 60

What is reformation?

Answer 60

Remedy that treats a K as valid and changes a writing setting forth or implementing the agreement to conform to the originally intended agreement

Question 61

How to obtain rescission?

Answer 61

Equity will rescind if, at the time the K was entered into, there was 1) mutual mistake on substantive matter 2) unilateral mistake = wont suffice unless it is known to other party/would create hardship to mistaken party 3) duress 4) undue influence 5) lack of capacity 5) failure of consideration Negligence = NOT a ground for rescission.

Question 62

If an agreement is rescinded what relief is available?

Answer 62

Restitutionary relief is available to recover any value exchanged prior to rescission.

Question 63

How do you obtain reformation?

Answer 63

Requires a valid K. Writings will be reformed if there was: 1) mutual mistake on collateral material 2) unilateral mistake if both parties should have been aware of it 3) negligent misrepresentation on one who has privity w/ K.

Question 64

Declaratory Judgement

Answer 64

Basis for Jurisdiction: must be actual controversy between parties involving unsettled rights/obligations/relationships. Superior Cts must have power to declare 1) rights/obligations of the parties 2) nature of legal relationship No requirement for petitioner to show present monetary harm There is a right to jury trial (verdict is in the form of interrogatory answers)

Question 65

Constructive Trusts and Equitable Liens: when available and differences between the two?

Answer 65

Available when property of the P has been misappropriated by D. Constructive trust: title to P's property has been taken Equitable Lien: requires title to be marketable

Question 66

Constructive Trust Requirements

Answer 66

1) Title/ownership in D wrongly 2) unjust enrichment of D at P's expense 3) inadequate legal remedy shown by D being insolvent

Question 67

Defense to Constructive Trusts

Answer 67

1) transfer to BFP without notice

Question 68

Subrogation

Answer 68

Involves substituting of a TP as P in place of actual victim Circumstances when subrogation arises: 1) P paid vic's loss 2) P paid an obligation of vic 3) P paid discharge of lien of vic's Only available to prop rights Not available to volunteers

Question 69

What tort claims are generally not assignable for subrogation?

Answer 69

1) PI claims 2) Fraud 3) legal malpractice

Question 70

Ne Exeat

Answer 70

Writ of ne exeat is a type of civil arrest warrant issued to restrain person or prop from leaving the state. May have to post bond in order to effectuate the warrant. Issued to: 1) joint obligators 2) person with underlying disabilities 3) remainderman 4) mortgagees 5) irrevocably harmed D may discharge the restraint by posting bond

Question 71

Quia Timet

Answer 71

Purpose: quiet title to land Objective: obtain marketable title Types: 1) conventional (against a known individual) 2) against the world (no known individual)

Question 72

Interpleader

Answer 72

Types: 1) statutory, brought in any ct of record 2) equitable, brought in ct of equity The holder of a debt/prop who is exposed to multiple liability may file a petition to determine the identity and interest of all persons in connection of the liability.

Question 73

Defenses to Interpleader

Answer 73

1) adequate legal remedy/defense 2) collusion between parties 3) funds not paid in court

Question 74

Bill of Peace

Answer 74

Grounds: 1) confirm previously established right 2) avoid multiplicity of actions Purpose: end litigation Enforced by an injunction

Question 75

Mandamus

Answer 75

only applies to governmental officials Purpose: compel performance of official duty Standing to bring a Mandamus: 1) ppl who claim special interest in performance of official duty 2) ppl who claim monetary loss from failure to perform official duty

Question 76

Defenses to Mandamus

Answer 76

1) adequate legal remedy exists | 2) act is discretionary (cant compel a discretionary act)

Question 77

Prohibition

Answer 77

Purpose: restrain illegal exercise of jurisdiction Generally used against lower/inferior courts and judiciaries Can be used against executive/military officer when acting in judicial capacity Will NOT be used against governor

Question 78

Quo Warranto

Answer 78

Addresses the right of a person to hold public office Standing: 1) anyone who claims the office 2) any citizen/taxpayer who is affected by this official's jurisdiction Applies to all civil/military officers Does NOT apply to the Governor Disputed issues of fact may be tried by a jury

Question 79

What is an equitable defense?

Answer 79

It prevents a P form obtaining an equitable remedy that would otherwise be available

Question 80

Equitable Defenses

Answer 80

1) Unclean Hands 2) Impossibility and Hardship 3) Freedom of Speech 4) Time Bar: Laches

Question 81

Unclean Hands

Answer 81

An equitable defense Available if the P is guilty of improper conduct proximately related to the same transaction for which P seeks equitable relief

Question 82

Impossibility and Hardship

Answer 82

Equitable Defense Equity will not order relief that is not feasible. Equity will not order something that is not within the capacity of the person ordered to do. Equity will not order relief when the burden on the D is disproportionate to the gain of the P.

Question 83

Freedom of Speech

Answer 83

Equitable defense Based on the constitutional guarantee of free speech and may be used to prevent injunctive relief in defamation and invasion of privacy cases.

Question 84

Time Bar: Laches

Answer 84

Equitable defense Law employs a fixed and arbitrary time bar in the SoL. Equity uses a flexible time bar called laches. Available when P's delay in bringing suit is 1) unreasonable based on when P obtained knowledge of the wrong 2) prejudicial to D