Tort Remedies-Definitions

Question 1

Difference between Legal and Equitable Remedies

Answer 1

Legal is monetary and equitable is against the person.

Question 2

Methods of getting into Equity (Lively Cats Find Mice Darn Nice)

Answer 2

• Land is unique
• Chattel is unique
• Fiduciary Relationship (breach)
• Multiplicity of suits (continuing tort)
• Damages are too speculative
• Remedy not available at law

Question 3

General Damages

Answer 3

Damages that reasonably or naturally flow from the tort. Need not be specifically pleaded.

Question 4

Special Damages

Answer 4

Damages that are unique to P. Must be specially pleaded.

Question 5

Three requirements to recover Special Damages

Answer 5

1. Reasonable certainty of money amount.
2. Proximate cause
3. Not too remote in time

Question 6

Punitive Damages

Answer 6

Available where D guilty of malicious and willful misconduct.

Question 7

Nominal Damages

Answer 7

Declaration of P’s rights.

Question 8

Avoidable Consequence Rule

Answer 8

P must take reasonable steps to mitigate losses.

Question 9

Damage calculation for Destruction of personal property.

Answer 9

Market value at time and place of destruction, less salvage, plus interest computed from time of valuation.

Question 10

Damage calculation for Damage of personal property.

Answer 10

• Diminished value or

- Actual cost of repair

Question 11

Damage calculation for Conversion

Answer 11

Market value at time and place of taking plus interest from that date.

Question 12

Severance of minerals/Timber (Good Faith and Bad Faith)

Answer 12

Good Faith-Where landowner unable to extract himself, recovery is limited to royalties.

Bad Faith-Landowner awarded value after it is mined.

Question 13

Replevin

Answer 13

Personal property which D acquired illegally and refuses to return.

Question 14

Ejectment

Answer 14

A legal restitutionary remedy to remove a trespasser from P’s land.

Question 15

Restitution-Purpose of

Answer 15

To restore the status quo by compelling D to return unjust benefits. To prevent unjust enrichment. Plaintiff need not suffer injury.

Question 16

Detinue

Answer 16

Personal property which D has acquired lawfully but refuses to return.

Question 17

Suit in assumpsit

Answer 17

Same as quasi contract or implied contract. P has the option of not pursuing damages (P’s losses) but rather getting a money judgment for D’s gains.

P can waive the tort and sue in assumpsit under the proper common count to get a money judgment for the unjust enrichment of D.

Question 18

Constructive Trust

Answer 18

If D used plaintiff’s property to get title to another item of property, plaintiff can have a constructive trust on the newly acquired property. Any appreciation of the property belongs to P.

Question 19

Two requirements for Constructive Trust

Answer 19

1. Identify res (or portion of ) as belonging to P

2. Trace the res (from P to D and possibly into what D bought with the res).

Question 20

Equitable lien

Answer 20

Available for real or personal property. If D uses property of P to improve owned by D, P may have an equitable lien on D’s property. Any appreciation in the property belongs to D.

Question 21

Three requirements for Equitable Lien

Answer 21

1. Debt owed to P
2. Identify Res
3. Trace Res

Question 22

Subrogation

Answer 22

Where one person discharges an obligation for which another is primarily liable and which the latter ought to pay.

Question 23

Four types of Restitution

Answer 23

1. Recovery back of specific property.
2. Restitution of money in D’s possession.
3. Constructive Trust
4. Equitable Lien

Question 24

Three Defenses to Restitution

Answer 24

1. Changed position.
2. BFP without notice and for value
3. Volunteer

Question 25

Injunction-Jurisdiction

Answer 25

There must be personal jurisdiction to be enforced.

Question 26

Outline for Injunction (Thomas A. Edison Is Pouring Himself The Drink.

Answer 26

1. Tort-IRAC
2. Adequacy of legal remedy? Why in equity?
3. Enforceability-Can courts enforce? (jurisdiction/supervise-feasibility)
4. Irreparable Harm
5. Personal/Property Rights of P
6. Hardships (Balance)
7. Type of Injunction
8. Defenses

Question 27

Three Defenses to Injunction

Answer 27

1. Laches
2. Unclean Hands
3. BFP

Question 28

Laches

Answer 28

Passage of unreasonable period of time resulting in prejudicial impact on D.

Question 29

Two requirements the D must prove for Laches

Answer 29

1. Plaintiff has delayed unreasonably.
2. Defendant was prejudiced by delay.

Note: Laches can still be a defense prior to a statute running if 2 requirements are met. But if the delay equates to the statute, Prejudice need not be shown.

Question 30

Three types of Injunctions

Answer 30

1. Temporary Restraining Order (TRO)
2. Preliminary Injunction
3. Permanent Injunction

Question 31

Preliminary Injunction-When will it be issued?

Answer 31

Only after notice and hearing. Purpose is to retain status quo.

Question 32

Three elements of Preliminary Injunction

Answer 32

1. Both parties must be present
2. Bond (unless TRO granted, then no bond required)
3. Irreparable harm. If no TRO, then need to establish

Question 33

Five elements of TRO

Answer 33

Temporary Restraining Order.

1. Emergency-Threat of irreparable harm if delayed
2. Irreparable harm.
3. P must post bond. TRO can be issued ex parte on affidavits of the complainant without affording D notice and opportunity to be heard. If TRO wrongfully issued, D can sue for damages (bond).
4. 14 day time limitation. Otherwise, preliminary injunction can be issued.
5. Ex parte hearing

Question 34

Five factors (not elements) courts will consider regarding issuance.

Answer 34

1. Irreparable harm
2. Balance of hardships favor P
3. Likelihood of P’s succeeding on the merits
4. Public interest
5. Need to maintain the status quo.