Tort Remedies: Intro and Monetary Damages

Question 1

What are the general categories of tort remedies?

Answer 1

1. Money Damages
   - compensatory
   - nominal
   - punitive
   - Interest and attorney fees
2. Restitutionary Remedies
   - restitutionary damages
   - replevin (claim and delivery)
   - ejectment
   - constructive trust
   - purchase money resulting trust
   - equitable lien
   - injunction
3. Injunctive relief

Question 2

What are the types of money damages that are available in tort?

Answer 2

1. compensatory
   - General
   - Special
2. nominal
3. punitive
4. interest and attorney fees

Question 3

What are “compensatory” damages?

What are the two types?

Answer 3

“compensatory damages” = an award of MONEY to compensate P for loss or injury

1. General Damages - compensate foreseeable losses (ie..pain and suffering)
2. Special Damages - compensate losses not necessarily foreseeable (ie.. wage losses)

NOTE –> special damages must be specifically pleaded

Question 4

With regards to “compensatory damages”, what is required to recover?

Answer 4

Must be:

• Causal
• Foreseeable (proximate cause)
• Certain
• Unavoidable

Question 5

What are “nominal damages”?

Answer 5

“Nominal damages” = often recoverable when NO actual injury is sustained

BUTE NOTE –> many torts have injury as an element. In this case, nominal damages are NOT available.
EXAMPLE –> fraud

Question 6

What are “punitive damages” ?

When are they available?

What issues arise w/ regards to punitive damages?

Answer 6

“punitive damages” - may be awarded to punish D for WILLFUL, WANTON, or MALICIOUS conduct

Availability –> generally limited to INTENTIONAL torts, but may be recoverable for RECKLESS misconduct

ISSUE: Due process (5th/14th amendment) guarantee against “grossly excessive” fines

Question 7

What is the due process analysis for punitive damages?

What is a good rule of thumb to remember?

Answer 7

Key issue –> did D have FAIR NOTICE of the possible magnitude of the punitive damages, considering:

1. REPREHENSIBILITY of conduct
2. DISPARITY between actual/potential harm suffered and PUNITIVE award
3. DIFFERENCE btwn punitive damages award and criminal or civil penalties authorized for comparable conduct

Rule of thumb –> if punitive is more than 10X compensatory, it might be excessive

NOTE –> injury to non-parties MAY be used as evidence of “reprehensibility” - but may NOT be used to determine AMOUNT of punitive damages as doing so would violate DP

Question 8

What is the rule w regards to awards of interest?

Answer 8

Awards of pre-judgment interest are generally statutory.

Question 9

What is the rule w regards to awards of attorney’s fees?

Answer 9

Usually NOT recoverable absent an applicable statute or contract.

EXCEPTION –> prevailing P in SH derivative suit