Ls - Remedies Set Two

Front 1

Mitigation of damages

Back 1

 You have a duty to mitigate
• Must take reasonable care and diligence to lessen the consequences of Defendant’s wrong
• All a plaintiff must do is act reasonably concerning the advice which he receives.
 You can’t take unreasonable action that might make damages higher
 The reason for a breach of contract is a tort you can waive the contract and sue in tort

Front 2

Contract damages

Back 2

 Compensation to put Plaintiff in the Position as if contract had been performed
 Expectation interest, reliance interest
 Lost profits must be contemplated at the time of contract.
 Lost assets recoverable at market value

Front 3

how do you calculate market value for lost assets?

Back 3

• Market value = How much you could sell the asset on the open market
• Things of sentimental value is not recoverable unless it is a unique item such as a wedding ring
 Emotional distress damages can only be recoverable where the parties specifically provide for them in the contract or the nature of the contract clearly indicates that such damages were within the contemplation or expectation of the parties.

Front 4

Are punitive damages allowed for contract claims?

Back 4

Punitive damages are not available for breach of contract unless the cause of the breach is also a tort where punitive are allowed.

Front 5

Contractual provisions for liquidated damages

Back 5

okay if the amount bears a reasonable proportion to probable loss and the actual loss would be difficult to determine.
• Struck down as a penalty: if the amount fixed is plainly disproportionate to probable loss. (often when they specify the same damages regardless of the severity of the breach.)

Front 6

Tortious Breach of Contract

Back 6

Tort damages have been permitted in cases where a breach of duty directly causes physical injury and for breach of the covenant of good faith and fair dealing in insurance contracts.

Front 7

When may Tortious Breach of Contract be found?

Back 7

• When the breach is accompanied by a traditional common law tort such as fraud or conversion
• The means used to breach the contract are tortuous, involving deceit or undue coercion or
• One party intentionally breaches the contract intending or knowing that such a breach will cause severe inmitigatable harm in the form of mental anguish

Front 8

Conversion

Back 8

Substantial interference with someone’s control and dominion of property that they possess

Front 9

ifferent types of conversion

Back 9

o Intentionally dispossessing the lawful possessor of the chattel
o Intentionally using a chattel in his possession without authority
o Receiving a chattel pursuant to an unauthorized sale with intent to acquire a proprietary interest for himself or another
o Disposing of a chattel by unauthorized sale with intent to transfer the proprietary interest in it
o Refusal to surrender a chattel on demand to a person entitled to lawful possession

Front 10

What does intent mean for purposes of Conversion?

Back 10

intent to exercise dominion and control over that property (Not to deprive the person of his rights)

Front 11

What does substantial interference mean for purposes of conversion?

Back 11

Conversion is limited to those serious, major, important interferences with the right to control the chattel which justify requiring the defendant to pay full value

Front 12

Can you bring an action for conversion against subsequent converters?

Back 12

Yes but once an earlier conversion is paid in full title vests in that converter retroactively.

Front 13

Remedy for conversion

Back 13

Market value at the time and place of the conversion
 Must show sufficient evidence of that market value at trial

Front 14

Remedy for conversion for fluctuating valued property

Back 14

• New York Rule: The recoverable damages for commodities of fluctuating value is the highest replacement value of the converted shares within a reasonable period of time following the discovery of the conversion.
• English Rule: The highest value of the stock between the time of conversion and the time of trial

Front 15

Other remedies?

Back 15

o Can waive the tort and sue for unjust enrichment.

Front 16

Trespass to Chattel

Back 16

o May be actionable if
 He dispossess the other of the chattel; or
 The chattel is impaired as to its condition, quality or value
 Deprived of the use for a substantial time
 Bodily harm is caused to the possessor or harm is caused to a person or thing in which the possessor has a legally protected interest

Front 17

Do you need to show substantial interference ?

Back 17

No. You do not need to show a “substantial interference” with the right to possess the chattel.

Front 18

Remedy for trespass to chattel

Back 18

Liable for the loss caused, possibly injunctive relief

Front 19

Measure of damages for injury to personal property

Back 19

the difference between fair market value immediately before the injury and fair market value immediately after the injury

Front 20

Exception to damages for injury for worn wearing apparel of household goods

Back 20

Law permits recovery of the actual value to the owner of the thing lost or damage, excluding any sentimental value.

Front 21

Evidence that you can use to show damages for worn wearing apparel or household goods

Back 21

• Broad look at evidence to determine value
o Cost of a new article
o Length of time is has been in use
o Condition at the time of loss
o Expense of replacement w/ item of like kind
o Any other facts that assist in determining worth to owner

Front 22

What evidence do you need to qualify the owner to give his estimate of the loss?

Back 22

Mere fact of ownership of these particular kinds of property is usually sufficient to qualify the owner to give his estimate of what his loss has been. Jury evaluates credibility

Front 23

Items of sentimental value

Back 23

 Minority Exception: Items generally capable of generating sentimental feelings, not just emotions peculiar to the owner. (Objective standard)

Front 24

Examples of items that qualify for sentimental value exception

Back 24

• Examples: Heirlooms, family papers/photos, handicrafts, trophies.
• Certain property by it’s very nature has an element of sentiment
o Symbols of achievements, national stature, recognition

Front 25

Alternative test for damages for trespass to chattel

Back 25

 In an appropriate case
 Reasonable cost of repair or restoration
 With due allowance for dimunition of value
 Loss of use
 Some courts permit a ceiling on the recovery of repair costs at the pre-tort fair market value or the dimunition of fair market value.

Front 26

How to determine loss of use damages in the Restatement 2nd of Torts damages section 928

Back 26

• Lost profits
• Cost of rental
• Fair rental value
• Interest

Front 27

Are emotional distress damages permitted for intentional trespass?

Back 27

Yes. Emotional distress damages are permitted for intentional trespass. Mental anguish, proximately caused by the trespass

Front 28

Legal Replevin

Back 28

Action of specific relief for the return of specific goods that were wrongfully taken

Front 29

Fuentez

Back 29

To seize a defendant’s property before granting the right to a prior opportunity to be heard before chattels are taken from their possess is a deprivation of due process.

Front 30

Less Stringent procedural due process test for legal replevin

Back 30

 Complaint must contain nonconclusory allegations of ownership or possessory rights
 Request for replevin must be presented to a judge who decides whether to authorize seizure
 Plaintiff must post a bond to protect Defendant
 Defendant must be entitled to immediately seek dissolution of the seizure order during an adversary hearing where Plaintiff bears the burden of proving the existence of the facts entitling plaintiff to property
 Defendant can counter bond to retain possession pending a full trial

Front 31

Equitable Replevin

Back 31

• Operates in personum and is enforceable through contempt power. Legal is in rem and is targeted at specific property.
• Allows seizure of the property.
• Used when there is not an adequate remedy at law or when the Plaintiff’s damages cannot be definitely determined.
• When there is a sufficient legal remedy, equitable replevin is not available

Front 32

Measure of damages for interference with real property

Back 32

General measure of damages in this instance is lesser of diminution in value or cost of repair. • Double damages if non-intentional destruction
• Treble if intentional destruction

Front 33

Personal Reason Exception

Back 33

Restoration costs may be awarded in excess of the decrease in market value if there is a reason personal to the owner for restoring the original condition (Ex. Certain types of trees or shrubbery)

Front 34

Offset the Benefit Rule in Real Property

Back 34

When the defendant’s conduct causes damage but also operates to confer a benefit on Plaintiff then the Plaintiff’s damages are offset by the amount of damages received.

Front 35

Trespass vs. Nuisance

Back 35

 Trespass – Actual interference with the exclusive possession of the land
 Nuisance – Interference with the use of the land

Front 36

Liability for Trespass

Back 36

Defendant is liable for an intentional, reckless or negligent intrusion onto the plaintiff’s property, unless the defendant is engaged in an “ultra-hazardous” activity for which strict liability is imposed.

Front 37

How to show nuisance

Back 37

You must show Defendant is liable for an intentional, reckless or negligent intrusion onto the plaintiff’s property, unless the defendant is engaged in an “ultra-hazardous” activity for which strict liability is imposed.

Front 38

What are the unreasonable use factors

Back 38

 The locality
 Character of the neighborhood
 Nature of use
 Extent of injury
 Effect upon enjoyment of life
o Very fact intensive

Front 39

Damages for Trespass and Nuisance

Back 39

o If nuisance is permanent dimunition of land value i
o If temporary then the diminished rental value during the period of harm
o Cost of repair and personal discomfort/inconvenience may be recovered.
o Special and punitive damages may be available as incentives to cease pollution
o Cost of repairs cannot exceed diminished property value.

Front 40

Questions to ask to determine whether the trespass/nuisance is Temporary or Permanent

Back 40

• Is it physically permanent?
o Can it be removed without difficulty?
o Can it be removed at a reasonable cost?
• Is the source of the invasion such that an equity court would refuse to abate because the value to the community or because of relations between parties?
• Which party seeks the permanent or prospective measure of damages?

Front 41

Damages for Trespass/nuisance

Back 41

• If it is permanent then the three years runs from the date of discovery
• If it is temporary each new day begins the statute anew and you can get damages within the three year statutory period
• Either you get
o Injunctive relief
o Or damages + future damages for permanent

Front 42

California distinction in Remedies

Back 42

o Permanent = one action for all past, present and future damages within three years
o Temporary = Each repetition of the continuing nuisance is a separate wrong so it is subject to a new and separate limitation period and successive actions may be brought but recovery is limited to actual injury suffered within the three years prior to commencement.

Front 43

Injunctions

Back 43

• Easements of necessity can only be granted in very limited circumstances of reasonable or absolute necessity
• A landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land, even though encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered by the owner of the lot upon which the encroachment has taken place. No balancing hardships in Massachusettes
• Most states are more inclined to balance the hardships when the encroachment was unintentional
 Equitable principle of relative hardship is only available to innocent parties who proceed without knowledge or warning that they are acting contrary to others’ property rights?

Front 44

Violations of Restrictive Covenants

Back 44

Generally courts presume that legal remedies for restrictive covenants are inadequate
• Look at whether it was intentional breach?
• Look at the uniqueness of the asset in the restrictive covenant?
o Was that asset a crucial factor in the purchase of the property?

Front 45

Encroachments in violation of a zoning ordinance

Back 45

• Split
o When a public agency is authorized to seek an injunction the municipality is not required to show irreparable harm or the inavailability of an adequate remedy at law
o Some states say it is also inappropriate to allow the court to balance equities (based on statute and legislative intent)
o Others still require balance of equities
 Whether the violation is substantial
 Whether the land owners violation was intentional or innocent
 Once a violation is establish a circuit court should grant the injunction except in rare cases when it concludes after examining the totality of circumstances, there are compelling equitable reasons why the court should deny the request.

Front 46

Public vs. Private Nuisance and injunctions

Back 46

o Public nuisance – Anyone effected can bring an action to abate the nuisance
 Don’t have the same freedom to balance economic hardship
o Private Nuisance – Only the effected party can bring the action.
o Prospective nuisance – One that is threatened or anticipated
 A court of equity may enjoin a prospective nuisance where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which is sought to be enjoined.

Front 47

Battery

Back 47

Harmful or offensive contact without the other’s consent

Front 48

Damages for Battery

Back 48

• Harm to the dignity interest is sufficient by itself to justify an award of damages
• A substantial damage award would not be inappropriate
• A jury gets some leeway in assessing the harm to the Plaintiff
• Can get emotional distress damages

Front 49

Defamation

Back 49

A false statement that is published to a third party that causes damage to a plaintiff (some states require fault).

Front 50

Defamation per Se

Back 50

Chastity of a woman, Loathsome disease, Incompetent in Business, Commission of a criminal offense of moral turpitude
o Thought to be so obviously and materially harmful to the Plaintiff that injury to its reputation may be presumed.
o Even a statement that falls into one of the limited per se categories will not be found defamatory per se if it is reasonably calculated of an innocent construction.
o Can only look to the statement itself to determine defamation