Remedies Flashcards
(38 cards)
What are the types of MONEY damages for torts?
- Compensatory
- Nominal
- Punitive
- Restitution
What are compensatory damages?
Tort remedy
Based on the damage done to P
Seeking to put the P in the position they would have been had the injury not occurred
Requirements:
(1) Causation [but for]
(2) Foreseeability
(3) Certainty [dmgs not speculative]
(4) Unavoidability [reasonable steps to mitigate]
Certainty rule applies to economic losses
Does not apply to non-economic losses
How should compensatory damages be form wise when given to P?
One single lump sum payment [no installments] that will be discounted to present value without taking inflation into account except under more modern rule
What are nominal Damages [torts]
Tort remedy
Recoverable when no injury sustained
Used to establish and vindicate the Ps rights
NOTE: that actual injury is a requirement of some claims–in that case nominal cannot be recovered
What are punitive damages [torts]
Tort remedy
Awarded to punish D for “willful, wanton, and malicious conduct”
Generally limited to intentional torts
Rules:
(1) cannot just have punitive (has to come along with one of the others)
(2) Ds fault must be greater than negligence
(3) awarded proportional to other damages
GENERALLY: punitive should not exceed 10X compensatory
What are Restitutionary Remedies [torts]
They are remedies that are used when the D has retained a benefit that amounts to unjust enrichment
Types [Torts]:
-Restitutionary damages
-replevin
-ejectment
-equitable restitutionary remedies
-constructive trusts
-equitable leins
What are restitutionary damages? [contracts]
D pays P the reasonable value of the benefit unjustly obtained
Amount is calculated based on the value of the benefit to the D
NOTE: you cannot get both restitutionary + compensatory damages
(if you could use either in a fact pattern talk about both though!)
What is Replevin?
Tort Remedy
Legal remedy that allows the P to recover prior to trial possession of specific chattel wrongly taken or detained
Test:
(1) P has to. have the right to possession
(2) there is a wrongful withholding by the D
Requirements:
-judicial hearing
-P will have to post bond when their chattel is returned
What is ejectment?
Tort Remedy
Legal remedy to restore possession of real property from which P was wrongfully ousted
Test:
(1) P has a right to possession
(2) there is a wrongful withholding by D
What is a constructive trust?
Tort Remedy
Equitable restitutionary remedy that is imposed on improperly acquired property to which the D has title
Equity creates a trust + then D serves as a trustee and must return property to the P
P must show:
(1) D has title to the property and Ds acquisition can be traced to wrongful acquisition
(2) Ds retention of property would result in unjust enrichment
(3) P has no adequate remedy at law
no remedy = Ds insolvency or uniqueness of land
HINT: use when property value goes UP
What is an equitable lien
Tort Remedy
Lien imposed on Ds property to secure payment of a debt owed to the P
Results in immediate court directed sale–money goes to P
Different from constructive trust: D has misappropriated Ds property and he has improved property he already owns using money or property wrongfully obtained
Requirements:
-P has priority over creditors (and can get a deficiency judgement if needed)
-cut off by transfer to BFP
HINT: use when property value goes DOWN
What is Injunctive Relief?
Tort [equitable] remedy
P may be able to get an injunction against tortious conduct being or about to be committed
NOTE: that injunctive relief is almost always coupled with damages for injuries in the time period prior to obtaining the injunction
What are Preliminary Injunctions?
Tort [equitable] Remedy
Used to preserve the status quo until trial
Stays in place until trial and notice MUST be given
Must show:
(1) irreparable injury
(2) Ps likelihood of succeeding on the merits
(3) balancing of the hardships re P + D
IS PUTIN BAD
Court could also impose a bond requirement on the P to reimburse the D if the injunction injures them and P does not prevail
What is a temporary restraining order?
Tort [equitable] remedy
TRO
Must show the same as a preliminary injunction
Difference: used in drastic circumstances when irreparable harm will occur before a hearing on the PI
TRO can be granted without notice if moving party can make a strong showing why notice should not be required
TRO is limited to 10 days (14 in federal)
After expiration–regular hearing for PI must be held
What is a permanent injunction
Tort [equitable] remedy
Is the relief sought
How to get:
I’M FEELING BOLD AND DETERMINED
(1) Inadequacy of legal remedy
(2) Feasibility of Enforcement
(3) Balance of hardships
(4) Defenses
i. unclean hands
ii. laches
iii. impossibility
iv. free speech
How should you balance the hardships for injunctive relief?
Balancing the hardships–is often used for nuisance + trespass to land
Must consider:
(1) There must be a gross disparity between the D detriment and the Ps benefit for the court to deny the injunction
(2) Even when there is a gross disparity, there will be no balancing of hardships if the Ds conduct was willful
(3) If you decide that the detriment to the D outweighs the benefit to the P, you should still consider awarding the P money damages
(4) Remember to consider hardship to the public
Unclean Hands
Tort Defense
Party seeking equitable relief must not be found guilty of “unfair dealing” with respect to the transaction being sued on
Laches
Tort Defense
Unreasonable delay by the P in initiating their equitable claim that results in prejudice to D
-effect of delay is key
-period of laches may be shorter but never longer than the SOLs
-time begins to run from when P has knowledge rights have been infringed
Impossibility
Torts Defense
It is impossible for D to carry out the injunction
Freedom of Speech
Torts Defense
prohibits an injunction against personal defamations
Who is bound by an injunction?
(1) the parties
(2) the parties’ employees + agents
(3) anyone acting in concert who had notice
What is an erroneous injunction?
Generally a statute that is no longer in effect
This must STILL be obeyed
P would have to go to court and get injunction modified/resolved
What types of contempt are there?
For disobeying a court ordered injunction situation
Civil Contempt: as soon as you agree to comply you can get out
Criminal Contempt: seeking to punish
Even if you agree to comply you’re in there until you were supposed to be in there
What are contracts damages?
Expectation Damages
Consequential Damages
Nominal Damages
Punitive Damages
Incidental Damages
