Torts Remedies

Question 1

Tort Damages

Answer 1

Tort damages include general damages foreseeable from the injury, consequential damages, and special damages that could not have been foreseen from the mere occurrence of the wrong. These special damages must be specially pleaded in the Complaint.

Question 2

Punitive Damages

Answer 2

In addition, punitive damages may be awarded for willful and wanton conduct amounting to fraud, oppression, or malice.

Defendants must have fair notice of possible magnitude of the punitive damages. The factors in assessing notice include:

(1) the reprehensibility of the defendant’s conduct
(2) the disparity between the actual or potential harm suffered and the punitive award and
(3) the difference between the punitive ward and the criminal or civil penalties authorized for comparable misconduct.

Question 3

Permanent Injunctions

Answer 3

To obtain a permanent injunction—which is granted after trial on the merits, plaintiff must show: (1) an inadequate legal remedy, (2) feasibility of enforcing the injunction, and (3) a balancing of the hardships in plaintiff’s favor.

Question 4

TRO or Preliminary Injunction

Answer 4

Plaintiff must show a reasonable likelihood of success on the merits, irreparable harm if the injunction is not granted, and a balancing of the hardships in plaintiff’s favor.

For TROs, a showing of immediate and irreparable harm is required.

Question 5

Inadequate Legal Remedy

Answer 5

The major reasons why the legal remedy may be inadequate are: money damages are inadequate, damages are too speculative, the potential of a multiplicity of suits, irreparable injury, and threat of prospective tort.

Question 6

Feasibility of Enforcing the Decree

Answer 6

Generally, it is more feasible to enforce a negative or prohibitory injunction than a mandatory injunction. This is because courts need to be able to supervise their decrees, and supervising a mandatory decree requires a court to sometimes continue to fashion remedies, or have continual involvement, unless the act was easy to supervise—an order to execute a deed, for example.

Question 7

Balancing the Hardships

Answer 7

Hardships are always balanced at the TRO and preliminary injunctions stage. Hardships are balanced at the permanent injunction stage only in encroachment and nuisance cases.

The defendant’s conduct should be inadvertent, and not intentional.

Question 8

Reasonable Likelihood of Success on the Merits

Answer 8

This requires you to show your knowledge of the elements of the cause of action, and a brief discussion of whether the plaintiff appears to have met the elements.

Question 9

Irreparable Harm

Answer 9

Look to the uniqueness of the harm or the object involved.