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21 Cards in this Set
- Front
- Back
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damages are normally available in contract actions?
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Actual and consequential damages. Punitive damages are not typically available.
The consequential damages which a plaintiff will be able to recover are limited to damages foreseeable at the inception of the contract. Attorneys' fees are only available if the parties provide for them in the contract. |
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damages How does a court determine the value of a destroyed crop
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The court looks to when the injury occurred. If the injury occurred earlier in the season, the proper measure for recovery will likely be the costs associated with starting the crop and the fair rental value of the land. If the injury occurred later in the season, the proper measure may be the fair market value of the crop minus the harvesting expenses that were saved.
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collateral source rule
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In Tennessee, the collateral-source rule prevents a reduction in the defendant's liability for amounts received by a plaintiff from other sources.
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Who may bring a claim for wrongful death
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right of action in surviving spouse, then children, then next of kin
-passive beneficiaries may be required to pay reasonable attorney's fees to the party bringing the action |
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Will damages against an insolvent tortfeasor be recoverable when there are several tortfeasors and only one is insolvent?
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It depends on whether the tortfeasors are jointly and severally liable for tort. When a jury allocates damages, a percentage of fault must be assigned to all tortfeasors regardless of their ability to pay. If the
tortfeasors are not jointly and severally liable, the percentage of fault attributable to the insolvent tortfeasor will not be recovered. |
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How does modified comparative fault work in Tennessee?
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A plaintiff may recover damages only if he is 49% or less at fault. Each defendant will attempt to show that their portion of the fault, if any, does not amount to 51%. However, the fault ofseveral defendants may be combined to reach the 51% necessary for recovery.
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Maya seller limit remedies available to buyers by contract?
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Yes, so long as the provision is not unconscionable.
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damages What may be recovered by a plaintiffwiten a sale of an automobile is revoked pursuant to Tennessee's "lemon law?"
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The Tennessee "lemon law" is applicable to the purchase of new vehicles.
Limited remedy is presumed to fail of its essential purpose after 3 attempts to repair. Buyer gets REFUND or a NEW CAR. |
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TRO-factors
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1. irreparable injury
2. Likelihood of success on the merits 3. No adequate remedy at law (i.e money damages alone will not compensate the party seeking the injunction) 4. Public policy would support the TRO |
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Constructive Trust
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contrsructive trust is an equitable remedy used to prevent unjust enrichment when a wrongdoer has gained title to property through misappropriation(e.g. by mistake, fraud, undue influence, breach of fiduciary duty or the like)
∆ holds property in trust for plaintiff who can compel conveyance of property itself, including increase in value. ------ -breach of fiduciary duty or confidential relationship -promise -transfer -unjust enrichment 1. constructive trust arises entirely by operation of law without reference to any actual or supposed intention of creating a trust. 2. As a general rule, a constructive trust can arise whenever a party has obtained money which does not equitably belong to him or her and which has been acquired through breach of trust or violation of fiduciary duty. 3. As a further general rule "fraud" wrt const. trust is not always misrepresentation of facts, but is merely generally "reprehensible conduct." arises by operation of law without reference to actual or presumed intention of the parties. -equitable device for prevention of unjust enrichment When a person has obtained title or possession of property which in equity and good conscience belongs to another, equity will impress the property with a constructive trust in favor of the other. -merely one label that often attaches to a restitution claim in equity that deals with property. |
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damages usurious contract
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principal plus interest
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punitive damages
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FIRM
available when π plaintiff can show that ∆ acted intentionally fraudulently recklessly or maliciously by clear and convincing evidence. tril for punitive damages may be bifrucated at ∆'s request. |
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damages personal injury
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Medical expenses, loss of earning capacity, pain and suffering, emotional distress, loss of consortium*
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loss of consortium
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derivative i.e. less than or 49% rule
-reduced by the same percentage of π's comparative fault if married to π spouse can recover for: -medical expenses not sued for by injured spouse -expenses reasonably incurred attended spouse in hospital -reasonable value of services π has lost and present cash value of services π is reasonably certain to lose in future -reasonable value of loss of love, affection and companionship lost in past, present cash value of such acts π is reasonably certain to lose in the future. |
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wrongful pregnancy
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medical expenses, lost wages, pain and suffering, emotional distress, possible loss of consortium, abortion cost (if chosen)
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wrongful birth--parents sue
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wrongful damages for expenses necessary to treat defect, cost of raising the child
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wrongful life--child sues
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same damages
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wrongful death--damages prior to death
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mental and physical suffering actually endured prior to death
medical expenses before death loss of earning capacity from injury to death funeral expenses |
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wrongful death--pecuniary value of life of the deceased
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1. age, condition of health, life expectancy, strength and capacity for work and earning money
personal habits re sobriety and industry -deduction for epenses pursuant to deceased's standard of living |
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wrongful death--consortium
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spousal and parental(age of child does not preclude consideration of parental consortium damages.
main factors are: 1. closeness of the relationship 2. any dependents |
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Subrogation
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subrogee who succeeds to rights of another recovers from defendant to prevent unjust enrichment
based on equitable principles but typically established by contract. no subrogation if π acted as a volunteer or if insured was not MADE WHOLE by tort recovery |
