Damages and Remedies Flashcards
(102 cards)
1
Q
What is the goal for tort damages?
A
Make the P whole
Compensation
2
Q
Three types of COMPENSATORY damages
A
- general damages
- special damages
- nominal damages
3
Q
What are general damages?
A
Flow from the commission of the tort itself
Noneconomic
- physical pain and suffering
- mental pain and suffering
4
Q
What is the measure of general damages?
A
The enlightened conscience of a fair and impartial jury
5
Q
How can P prove pain and suffering?
A
subjective: P’s own testimony
objective: expert testifies
6
Q
Negligent infliction of emotional distress: what must P prove?
A
Some physical manifestation
7
Q
Special damages
A
Loss of money or something money can buy
- lost salary, property damage, medical bills
8
Q
To get special damages, what must P do?
A
Plead with particularity
9
Q
If P’s animal is killed, what are the damages?
What if the conduct was intentional and directed at P?
A
Chattel value only
P may be able to recover mental pain and suffering damages (if intentional and directed at P)
10
Q
What happens in GA if you get in a car accident? Must you bring everything in one lawsuit?
A
Can bring 2 suits: (1) property damage and (2) personal injuries.
*Exception to claim preclusion
11
Q
What is the evidentiary standard for punitive damages?
A
Clear and convincing evidence that D acted with such willful misconduct, malice, fraud, or wantonness or entire want of care as to raise a presumption of CONSCIOUS INDIFFERENCE to the consequences.
12
Q
What if P wants punitive damages?
A
P must plead, ask for punitive damages.
13
Q
In GA, what is the maximum P can get for punitive damages?
A
Capped at $250,000 per claim
subject to exceptions
14
Q
In GA, what are the exceptions to the punitive damages cap?
A
- products liability cases
2. specific intent
15
Q
What does it mean when there are no caps for punitive damages with specific intent?
A
It means that any case where D was voluntarily intoxicated, there will be NO cap on punitive damages.
16
Q
If there is a punitive damages award in a products liability case, who gets the proceeds?
A
GA gets 75% of the award. Only first P can recover punitive damages against D.
17
Q
When can D’s assets be considered when determining damages?
A
ONLY punitive damages
18
Q
Are punitive damages available against the sovereign?
A
NO
19
Q
What if you are suing for IIED? (or whole injury is mental): can you get punitive damages?
A
No recovery for punitive damages
20
Q
Restrictions on damages: special rules
A
- must mitigate damages
2. collateral source rule
21
Q
Duty to mitigate: what types of cases?
A
Tort AND contract
22
Q
Does failure to wear a seatbelt constitute a failure to mitigate?
A
NO. Failure to wear a seatbelt is not admissible to lessen recovery.
23
Q
When are lost profits recoverable?
A
When they are:
- reasonably certain
- proximately caused
24
Q
Collateral source rule: what is it? Does GA follow it?
A
Rule of evidence that EXCLUDES evidence of payment to P from third parties (insurance proceeds, help from friends and family)
25
What are you claiming when you claim loss of consortium?
Services
Society
Companionship
Affection
26
When you claim loss of consortium?
Only when both people are STILL living
27
Can a child recover for parental consortium?
Not in GA
28
Conversion remedies: what choices does P have?
P can ELECT:
1. return of the chattel
2. market price
3. rent for each day it was gone + return of chattel
29
What is the measure of the chattel for conversion in GA?
Highest proved value b/w time of conversion and time of trial
MBE: value determined when chattel was converted
30
What damages may be available for fraud?
1. benefit of the bargain (whatever D profited we take away)
2. punitive damages
3. attorney's fees
4. other consequential damages
31
What are damages limited to in contract cases?
- damages arising DIRECTLY from the breach of contract AND
| - these damages were within the contemplation of the parties
32
What is quantum meruit?
Use when there is an implied contract
Person who performed services gets the value of the goods or services to the recipient
33
In GA, does a landlord have a duty to re-rent?
No. But if someone wants to rent, you must rent it if reasonable.
34
Are consequential damages recoverable in GA?
Not recoverable unless they can be traced solely to the breach.
35
When are punitive damages allowed in contract cases?
Never except a breach of a promise to marry
*can get punitive damages for fraud if P elects to sue under a tort theory
36
When can you get equitable remedies? (Steps)
1. legal remedy must be inadequate
| 2. the equitable relief must be feasible
37
Equitable defenses: types
1. unclean hands
2. time barred (laches)
3. impossibility or hardship
4. freedom of speech or other constitutional issues
38
When will a legal remedy be inadequate? Possibilities are:
1. subject matter is unique
2. money damages would be speculative or uncertain
3. P would have to bring multiple or successive lawsuits
4. D is insolvent
5. harm is irreparable
39
What makes an equitable remedy feasible?
1. D is present in the forum state OR
2. property subject to the litigation is present in the forum state
AND
ability for equity court to determine or supervise compliance by D
40
How does equity normally enforce its decrees?
By holding the non-complying party in contempt
41
When might equity decline injunctive relief?
1. dispute involves subjective application of taste
2. remedy would require constant or continual supervision
3. equity will not compel the rendition of personal services
4. equity will not compel performance in different jurisdictions
42
What court has jurisdiction to award equitable relief in GA?
Superior court
43
Can you get a jury trial when you are claiming equitable relief?
No UNLESS
1. statute authorizes jury
2. common facts involving a claim for money and equity
3. single claim involving both legal and equitable issues
44
What is an example of when P should file in equity so that P can avoid having to file consecutive lawsuits?
When D is trying to obtain adverse possession or a prescriptive easement. (money damages inadequate and irreparable harm would result to P)
45
What if D breaches a personal services contract and tries to go perform somewhere else?
Equity can prohibit rendition of personal services, but can't compel.
Ex: Lady refuses to perform for City Opera and then tries to go perform for City Opera's competitor.
46
2 types of injunctions
1. preventive
| 2. corrective
47
When are injunctions normally available: what types of torts?
Property and privacy invasions (trespass, conversion, intrusion on seclusion, misappropriation of P's likeness)
48
When are injunctions sometimes available?
Nuisance (if ongoing)
To prevent waste (destructive or permissive)
Tortious business interference
49
When are injunctions normally not available?
Threatened defamation
False light
Public disclosure of private facts
***** triggers first amendment and prior restraint issues
50
Restrictive covenant not to compete (what does an employee promise not to do?)
1. won't solicit customers
| 2. won't compete
51
What is a presumptively reasonable time period for a non-compete? What about with the sale of a business?
2 years
Sale of business: 5 years
52
Restrictive covenants must be reasonable in? (2 things)
time AND
| geographic scope
53
What if you need an injunction before a case can be decided on the merits?
1. temporary restraining order
| 2. interlocutory injunction
54
Why get an interlocutory/preliminary injunction?
Preserves the status quo until the court can determine the controversy presented in litigation.
55
What do you have to show to get a TRO? How is it different from other preliminary injunctions?
A TRO can be obtained without hearing both sides BUT the max length of time it is effective is 30 days
Must show:
1. immediacy of injury that will justify proceeding without a hearing
56
Permanent Injunction
Elements
1. injunction would PREVENT tortious conduct
2. legal remedy is inadequate
3. a property right OR protectable right is involved
4. enforcement would be feasibly, practicable, and effective to vindicate P's rights
5. hardship to the D or public does not greatly outweigh the benefit to the P
6. no defenses available
57
Interlocutory injunction: when will it be granted and how long does it remain in effect?
Only granted after hearing both sides
Injunction bond required
Will remain in effect until the decision on the merits
58
Interlocutory injunction (also called preliminary injunction) elements
1. irreparable injury if prelim injunction not granted
| 2. P must show that it is probable that she will succeed on the merits of her claim
59
Who does an injunction bind?
- parties
- parties' agents and servants who receive actual notice
- third parties acting in concert with the parties after receiving notice
60
What is a TRO?
Emergency orders imposed until a regular adversary type hearing may be held (file in superior court)
61
When can a TRO be granted ex parte?
No notice must be given to party to be restrained IF the moving party makes a strong showing why notice should not be required.
62
What must a party seeking a TRO or interlocutory injunction post?
Bond sufficient to reimburse the enjoined party if the injunction is later found to be improperly ordered
63
Specific performance: what happens when ordered?
Party to the contract is ordered to perform according to the contract's terms
64
Specific performance elements
1. existence of a contract
2. P has fulfilled all conditions precedent (P has done everything he's supposed to do)
3. mutuality of remedy
65
Specific performance: how does the party show a contract exists?
1. certainty of terms (identity of parties, time and manner of payment, subject matter of contract)
2. existence of consideration
66
When will a time is of the essence clause NOT be enforced?
1. loss to the other party is small
2. undue hardship
3. waiver
4. tardiness is de minimis
67
When will a court award specific performance even though the seller cannot convey marketable title?
1. deficiency is minor: court can grant specific performance and a reasonable reduction in purchase price
2. deficiency is severable and a reasonable reduction in purchase price
68
What does mutuality of remedy mean?
It means that one party is NOT entitled to specific performance unless the other party would be entitled to have the contract specifically enforced
*could come up if one party is a minor
69
Equitable conversion
Buyer is considered the owner of the property upon executing the contract for sale
70
How can you enforce specific performance of land?
1. contempt
| 2. means of decree: court can transfer title
71
Equitable remedies (3 main types)
1. injunction
2. specific performance
3. rescission and reformation
72
What is rescission?
treats parties as though the contract had never been made (terminates the contract)
73
What is reformation?
Treats the contract as valid and changes it
74
When will equity rescind a contract?
1. mutual mistake as to an essential matter
2. unilateral mistake ONLY if known to the other party
3. duress, undue influence, lack of capacity, fraud
75
When will equity reform a contract?
1. mutual mistake as a collateral matter
2. unilateral mistake b/c of fraud if both parties should have been aware of it
3. negligent misrepresentation
76
Declaratory judgment: when is it used?
When there is an actual controversy involving unsettled rights, obligations, or relationships.
77
What must petitioner of a declaratory judgment show?
Possibility of future harm (BUT no need to show present monetary harm)
78
What if a jury trial decides a declaratory judgment: how do they render their decision?
In the form of interrogatory answers
79
When is a constructive trust an appropriate remedy?
Title to P's property has been taken fraudulently.
80
When is an equitable lien an appropriate remedy?
When P's property has been appropriated (but title hasn't passed)
81
Elements to get a constructive trust
1. title in the D
2. to allow d to keep property would result in unjust enrichment at P's expense
3. legal remedy is inadequate
82
What is D's defense to a constructive trust?
D transferred property to a bona fide purchaser for value without notice
83
What is subrogation?
When a third party is substituted as plaintiff in place of the victim because:
1. third party paid the loss to the victim
OR
2. third party paid obligation
3. plaintiff discharged a lien
84
When is subrogation available?
Only for property claims (NOT personal injury)
Ex: When insurance pays for repair for damage to victim's truck, insurance can go after the tortfeasor
85
What is a writ of ne exeat?
Type of civil arrest warrant that restrains a person or property from leaving a jurisdiction
86
Quia timet action
Quiet title action
Two types:
conventional: dispute b/w 2 parties
against the world
87
What is the purpose of a quia timet action?
To gain marketable title
88
Interpleader: what is it?
Action brought by the holder of a debt or property who is exposed to multiple liability may file to determine who is entitled
89
Defenses to interpleader: when will the court not allowed interpleader?
1. collusion by the person bringing the action and some claimants
2. funds weren't paid into court
3. adequate remedy at law
90
Who are extraordinary writs available against?
Government officials
91
What is a mandamus action?
Used to compel performance by an official to DO HIS MINISTERIAL DUTY
- used to require official to do what the law requires him
- not used for judicial acts
- use when there is no adequate remedy at law
92
When is a gov't official's defense to mandamus?
1. adequate remedy at law
OR
2. official's act is discretionary
93
What is a writ of prohibition?
(opposite of mandamus)
Used to restrain illegal exercise of jurisdiction by government officials (usually to restrain a lower court from exercising power)
94
What is a writ of quo warranto?
Used to challenge a person's right to hold a public office (can't challenge governor)
95
What does an equitable defense do if successful?
Prevents a P from obtaining equitable remedy when the remedy is otherwise available.
96
Unclean hands
When P is guilty of improper conduct related to the same transaction for which P seeks equitable relief
97
Impossibility or hardship defense
Court won't order an equitable remedy if it is not w/in the capacity of D to do it
98
Freedom of speech defense
Equity won't intervene if constitutional rights are threatened
99
Laches
P has delayed in bringing suit and the delay is:
1. unreasonable based on when P obtained knowledge of the wrong OR
2. prejudicial
100
wrongful death: what factors to consider when determining value of a life
- age when the person died
- health
- life expectancy
- income at the time of death
101
Where does recovery from a survival action go?
- it goes to the decedent's estate to be distributed under the residuary clause of the will
IF the testator died intestate or without a valid residuary clause: use intestate succession
102
Where does recovery in a wrongful death action go?
Recovery is split equally among the surviving spouse and the children
IF there are more than 2 children: spouse gets at least 1/3 under intestacy statute
