Tort Remedies

Question 1

What is required for a Preliminary Injunction?

Answer 1

1. IRREPARABLE Injury
   (weighed against harm to D; make sure harm to D not&raquo_space; benefit to P)
2. LIKELIHOOD of Prevailing

Issued to preserve the status quo

Question 2

What is required for a Permanent Injunction?

Answer 2

1. Legal Remedies Inadequate
2. Feasibility
3. Balancing of the Hardships
4. No Defenses
   (Laches, Unclean Hands, Freedom of Speech, Criminal Act)

LFBD

Question 3

What is the purpose of a preliminary injunction?

Answer 3

To preserve the status quo.

Question 4

What is the Tort REMEDY for Destroyed Property?

Answer 4

Compensatory Damages

Question 5

What is the Tort REMEDY for Damaged Property?

Answer 5

Compensatory Damages

Question 6

What is the Tort REMEDY for Dispossession of Personal Property?

Answer 6

Compensatory Damages
Restitutionary Damages
Replevin
Mandatory Injunction (if unique and replevin won't work) 
Constructive Trust
Equitable Lien
Self-Help (R force only)

Question 7

What are the LEGAL REMEDIES in Tort?

Answer 7

Damages: Money
Restitution: Replevin, Ejectment

Question 8

What are the EQUITABLE REMEDIES in Tort?

Answer 8

Restitution:
Constructive Trust
Equitable Lien
Injunction

Question 9

What is a CONSTRUCTIVE TRUST?

Answer 9

court-imposed OBLIGATION on the D to CONVEY specific property to the P.

Question 10

What is an EQUITABLE LIEN?

Answer 10

court-imposed SECURITY INTEREST in specific property owned by the D.

Question 11

What is an INJUNCTION?

Answer 11

Negative or mandatory order from the court.

Question 12

What Damages are available in Tort?

Answer 12

Actual Damages
    General Damages
    Special Damages
Nominal Damages
Punitive Damages

Question 13

What are the guidelines for Punitive Damages?

Answer 13

Do not compensate for actual injury suffered by P.

Must be some PROPORTIONALITY between actual/ nominal damages and punitive damages

Wealthy D’s pay more than poor D’s.

Question 14

What are RESTITUTION REMEDIES (define)?

Answer 14

Compensate for benefit unjustly retained by the D.

Question 15

For what type of remedy does there NOT NEED TO BE ANY INJURY to P?

Answer 15

Restitution.

Question 16

What are the RESTITUTION REMEDIES – Legal?

Answer 16

1 Money
2 Replevin
3 Ejectment

Question 17

What are the RESTITUTION REMEDIES – Equitable?

Answer 17

1. Constructive Trust

2. Equitable Lien

Question 18

What are the elements of a CONSTRUCTIVE TRUST?

Answer 18

1. Defendant has TITLE to the property
2. Acquisition of title due to D’s WRONGDOING
3. D’s retention of property would result in UNJUST ENRICHMENT
4. inadequate LEGAL REMEDY

TWUL
Twins Wrongfully Underestimate the Law

Question 19

What are the elements of an EQUITABLE LIEN?

Answer 19

1. Defendant has TITLE
2. Acquisition of title due to D’s WRONGDOING
3. D’s retention of property would result in UNJUST ENRICHMENT

Twins Wrongfully Underestimate

Question 20

Which can be used when D has merely IMPROVED OTHER PROPERTY WITH P’S PROPERTY – Constructive Trust or Equitable Lien?

Answer 20

Equitable Lien.

Question 21

Up to what amount can a Constructive Trust be enforced?

Answer 21

The ENHANCED VALUE of the property

Question 22

Up to what amount can an Equitable Lien be enforced?

Answer 22

Only up to the AMOUNT OF P’S CLAIM.

Not the enhanced value of the property.

Question 23

If P’s property has not been used to acquire title, which one can be used: Equitable Lien or Constructive Trust?

Answer 23

Equitable Lien.

Question 24

When will an Equitable Lien be cut off?

Answer 24

When there is a transfer to a BFP.

Question 25

When may a TRO be issued?

Answer 25

After notice and a hearing, or | Ex parte if sufficient showing of urgency

Question 26

When may a Preliminary Injunction be issued?

Answer 26

After notice and a hearing (adversary must be present).

Question 27

When is Balancing of the Hardships especially likely (wrt Injunction)?

Answer 27

1. Encroachment (yes if unintentional -- innocent or negligent -- tho court favors P seeking removal of encroachment); 2. Nuisance (always in PRIVATE Nuisance)

Question 28

What are defenses to an Injunction being issued?

Answer 28

Laches Unclean Hands Freedom of Speech (no prior restraint) Exceptions: national security, trade libel Criminal Act Exceptions: public nuisance crime that also is a tort (partial except)

Question 29

What is a Public Nuisance?

Answer 29

Use of property so as to endanger public health and welfare

Question 30

Which is appropriate when P can specifically identify and TRACE her stolen property to the D: Constructive Trust or Equitable Lien?

Answer 30

Constructive Trust

Question 31

Which is appropriate where D COMMINGLES the funds he misappropriated from P with others: Constructive Trust or Equitable Lien? How much can be recovered?

Answer 31

Equitable Lien. Lien is limited to the lowest intermediate balance where the balance sinks below P's claim.

Question 32

For which -- Rescission or Reformation -- must there have been a valid contract?

Answer 32

Reformation

Question 33

What is the Remedy for VOLUNTARY WASTE?

Answer 33

Damages, measured by: Diminution in value of land, or Cost of repair Injunction also appropriate (What "Voluntary Waste" is: DELIBERATE destructive acts)

Question 34

What is the Remedy for PERMISSIVE WASTE?

Answer 34

Damages: Cost of repair No Injunctive Relief (supervision problems) (What "Permissive Waste" is: where premises are allowed to fall into state of DISREPAIR)

Question 35

What is the Remedy for AMELIORATIVE WASTE?

Answer 35

No Damages Injunction (only if D is short-term tenant) (What "Ameliorative Waste" is: where alterations made INCREASE the land's value)

Question 36

What is the Remedy for EQUITABLE WASTE?

Answer 36

No Damages Injunction to prevent change (e.g. to prevent mortgagor from impairing security of mortgage) (What "Equitable Waste" is: those not chargeable with legal waste effect material changes to the premises.)

Question 37

What is the Remedy for NUISANCE?

Answer 37

``` Damages: Loss of use and enjoyment Costs of abatement Emotional Distress, etc (possibly permanent diminution in value -- "permanent nuisance doctrine") ``` Injunction -- damages usually inadequate; NO BALANCING OF HARDSHIPS bc nuisance is generally intentional.

Question 38

What is a "conditional decree" and when is it used?

Answer 38

Denial of injunction -- e.g., conditioned on D adopting abatement procedures. May be used for Nuisance

Question 39

When is it appropriate for a private person to bring a PUBLIC NUISANCE claim?

Answer 39

When he suffers a unique damage not suffered by the rest of the general public.