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Question 1

What are the three major limitations on compensatory damages, and what does that mean?

Answer 1

– damages must be foreseeable to the defendants
– they must be measured with sufficient certainty
– they must be unavoidable

These are different concepts that could limit or adjust the award. These apply to compensatory damage awards that are connected to either contract or tort

Question 2

What does it mean that damages have to be foreseeable to the defendant in tort?

Answer 2

You have to show that the defendant’s tortious conduct was the actual and proximate cause of the injury. Foreseeability affects the nature of the duty that the law imposes, and once the duty is established, the defendant is responsible for all ensuing harm that is caused by the breach.

Question 3

When is foreseeability assessed with regard to damages for torts?

Answer 3

At the time of the breach of duty, not the time that the duty attaches.

Question 4

What is involved in the requirement of foreseeability for damages for contracts?

Answer 4

The test is whether the damage claimed by the plaintiff was a reasonably foreseeable consequence of the breach at the time of formation. If the defendant was made aware at formation that the plaintiff would sustain extraordinary loss if the contract was breached, this is satisfied and subjects the defendant to added liability.

Question 5

What is the time foreseeability applies with regard to compensatory damages for contracts?

Answer 5

At the time of formation

Question 6

What does it mean that damages must be measured with sufficient certainty?

Answer 6

The plaintiff must establish a reasonable basis for damages to be calculated without speculation or conjecture. If the court decides there’s no rational basis for a reasonable jury to base a damages award on, then that lack of certainty prevents anything more than nominal damages being given. This doesn’t require exactitude.

Question 7

Why is there a higher level of certainty that is required for contracts then for torts when it comes to giving compensatory damages?

Answer 7

Because contracts has formulas to figure out the exact amount of damages, but tort has things like pain and suffering which are hard to put a dollar figure on.

Question 8

If a guy borrowed his friend’s van to taxi people at the airport for the weekend [unlicensed], and a competing taxi company brought suit for the loss of economic expectancy, how do they prove damages with reasonable certainty?

Answer 8

Establish specific customers that they lost because of the guy. They cannot just say that they made less profit than usual

Question 9

What does it mean that damages must be unavoidable?

Answer 9

Mitigation. There’s a duty on the plaintiff to make reasonable efforts to avoid or lessen damages that may arise from the defendant’s wrong. This duty arises post injury.

Question 10

If the plaintiff is riding his bike and the defendant hit him, and they called an ambulance but the plaintiff left the scene before the ambulance came, then suffered worse injuries than he would have if the paramedics had treated him, what is the issue here?

Answer 10

It is a mitigation issue if it was unreasonable for the plaintiff not to wait for the ambulance and then he suffered additional damages. So the additional damages would not be recoverable because the plaintiff failed to mitigate

Question 11

What is the rationale behind requiring that damages be unavoidable/that plaintiffs mitigate?

Answer 11

The plaintive has to act fairly toward the defendant and in a socially responsible manner, and he shouldn’t be seen to cause his own losses

Question 12

What is the key to mitigation?

Answer 12

Reasonableness. Always debate whether the party acted reasonably. This debate is more important than the conclusion

Question 13

Who has the burden to establish that the damages were unavoidable?

Answer 13

The defendant must show by a preponderance of the evidence that the plaintiff failed to mitigate damages and that the mitigation could have reduce the damages the plaintiff suffered

Question 14

What are the affirmative and negative components of the duty to mitigate?

Answer 14

• affirmative: any expenses that were reasonably incurred in mitigation are recoverable, even if the medication was unsuccessful
• negative: the plaintiff cannot recover any damages that could have been avoided by his own reasonable efforts

Question 15

If a defendant hit a cyclist, and the cyclist goes to the doctor, what is the affirmative component of mitigation that would apply here?

Answer 15

The cost of that visit is recoverable because it was done to lessen the damages suffered

Question 16

If a cyclist got hit by the defendant and he could’ve gone to the doctor who would’ve said he needed bedrest, but he didn’t go to the doctor and it caused an infection which meant he had to miss a month of work, how does the negative component of mediation apply?

Answer 16

The cyclist would not recover for the lost wages beyond the bedrest days because those could’ve been avoided by reasonable efforts

Question 17

If a city contracted for a bridge to be built, but halfway through they cancelled the contract, but the construction company continue to build anyway, what happens?

Answer 17

The court says that the construction company couldn’t continue to perform, so they wouldn’t recover any damages for the continued performance

Question 18

What is the reasonable efforts rule with regard to mitigation?

Answer 18

Must show by a preponderance of the evidence that the plaintiff failed to act reasonably after the defendant’s wrongful conduct and that it caused the damages to be higher than anticipated. The plaintiff doesn’t have to take extraordinary measures or suffer undue hardship, he just has to make a reasonable attempt to avoid additional losses

Question 19

What are the factors to determine whether a plaintiff used reasonable measures in mitigation?

Answer 19

– the gravity of the original injury
– the intrusiveness of the proposed medical treatment
– the risk of complications
– the feasibility of alternatives
– expense of treatment
– increased likelihood of recovery if treatment is given

Question 20

What should you watch out for with regard to mitigation?

Answer 20

Sometimes it looks like the party did nothing, but he actually did something, just not what you might expect. I.e.: instead of fixing the fence, he just told his kids not to go outside. You have to ask if the action was reasonable under the circumstances. On an essay, debate the reasonableness of what was done and even nominal actions are debatable as reasonable

Question 21

What is the duty to mitigate with regard to employment contracts where the employer breached?

Answer 21

The employee has an affirmative duty to mitigate by seeking out and accepting similar work in the same general area. He doesn’t have to relocate, go into another line of work, or accept a demotion

Question 22

If a plaintiff was hired by a store to be its manager, but then he ended up being told he had to be a sales clerk but would still get management salary, and he refused, what is the deal with mitigation here?

Answer 22

The court says he didn’t have an obligation to accept the other position because it’s not similar work and it is not management

Question 23

If an actress was hired to do a musical in California, but the company cancelled the contract and instead offered her a western in Australia, does she have a duty to accept that as mitigation?

Answer 23

No, because it was not the same location and not the same job, so she didn’t have to accept.

Question 24

When a tenant breaches a lease, what is the landlord’s duty to mitigate?

Answer 24

• CL: the landlord has no duty to mitigate. He can just leave the property vacant and collect the rest of the rent from the tenant
• Modernly: there’s an affirmative duty on the landlord to try to re-rent the premises to someone else and the breaching tenant is liable for the difference in rent

Question 25

If a tenant was paying $1000 a month and the landlord used reasonable efforts but could only re-rent the property for $800 a month after the tenant wrongfully vacated, what would be the tenant’s liability?

Answer 25

Modernly he would be liable for the $200 a month difference for the rest of the lease