Remedies

Front 1

What is the fundamental principle of remedies for damages in Tort?

Back 1

The fundamental principle of damages in Tort is to compensate the plaintiff to place him in as close a position he was in prior to the commission of the tort

Front 2

What is the fundamental principle of remedies for damages in Contract?

Back 2

The fundamental principle of damages in contract is to give the plaintiff the benefit of his bargain, of which he would have obtained but for the breach by the defendant.

Front 3

What are general damages?

Back 3

These are non economic damages that arise out of liability. They usually consist of:
1. Pain and suffering
2. Future pain and suffering

Front 4

What are special damages?

Back 4

These are economic damages that are quantifiable, matters that you can get bills for and prove.

Front 5

What is a wrongful death action?

Back 5

All jurisdictions allow you to recover funeral expenses and compensation for financial support and monetary services that the decedent would have provided to the dependents.

Front 6

What is a survival action?

Back 6

It is a wrongful death action but decedent does not die immediately, he lingers for a while. Means that decedent had pain and suffering compensable to him seperate from the loss to survivors.

Front 7

What is loss of consortium?

Back 7

Loss of love, companionship, affection, society, moral support, sex, physical assistance w/home

Front 8

who is the proper plaintiff in a loss of consortium action?

Back 8

Proper plaintiff is a spouse. Domestic partners, cohabitants, parents or children are not proper plaintiffs.

Front 9

What are special damages in regards to past medical?

Back 9

Reasonable value of reasonable and necessary medical expenses.

Front 10

What type of proof is required for past medical special damages?

Back 10

Requires proof of
1. Amount of each claimed expense
2. Each charge is reasonable
3. Actually given and reasonably necessary
4. Each was proximate result of injury by defendant.

Front 11

What evidence can be used to prove past medical special damages?

Back 11

1. Medical bills
2. doctor testimony
3. medical reports

Front 12

What defenses can be used to prove past medical special damages?

Back 12

1. Unreasonable costs
2. Not needed
3. No causal relationship
4. Unproven treatment

Front 13

What are future medicals?

Back 13

Special damages. Reasonable value of expected future medical charges that are product of original injury.

Front 14

What must be shown regarding future medicals?

Back 14

1. Reasonably certain future medical care, services, supplies
2. Causal connection to injury by defendant

Front 15

What evidence can be used to prove future medicals?

Back 15

Expert testimony

Front 16

What defenses can be used to object to future medicals?

Back 16

Too speculative

Front 17

What must we remember in regards to future medicals?

Back 17

Possibly given per diem, and must reduce to present value.

Front 18

What is past wage loss?

Back 18

Special damages. Reasonable gross value of working time on account of injury caused by defendant.

Front 19

what can be used to prove past wage loss?

Back 19

employment records

Front 20

What are future wage losses?

Back 20

Special damages. Reasonable gross amount plaintiff would have received in the future but for the injury.

Front 21

What evidence can be used in regards to proving future medical losses?

Back 21

1. Medical Evidence
2. Economist
3. Actual earnings
4. work-life expentency
5. promotions
6. raises
7. Economic trends

Front 22

What must be remembered about future wage losses?

Back 22

Possible given by per diem and must reduce to present value. Note: The only time you have to discount the present value is when you are giving the person money now that they would ordinarily receive in the future.

Front 23

What are property damages?

Back 23

Special damages. Generally based on the market value of the thing destroyed, unless market value would result in injustice or can't be ascertained w/ reasonable certainty.

Front 24

what must the plaintiff prove in regards to property damages?

Back 24

Reduction in the property's value or, reasonable cost of repairing the harm.

Front 25

What is reduction in value in regards to property damages?

Back 25

Fair market value before harm minus fair market value after the harm.

Front 26

What is loss of use in regards to property damages?

Back 26

Reasonable cost to rent similar property during time of loss.

Front 27

What are damages for unique value in regards to property damage?

Back 27

1. Personal property had market value
2. Had unique value to plaintiff
3. Defendant had notice of unique value and conduct was intentional and wrongful.

Front 28

What are lost profits in regards to property damage?

Back 28

Plaintiff must prove it is reasonably certain he would have earned profits but for defendants conduct.

Front 29

What must the plaintiff prove to get an injunction?

Back 29

1. Irreparable harm
2. Legal remedy inadequante
3. No lengthy or detailed court supervision.

Front 30

What is a TRO?

Back 30

Temporary Restraining order.
Can be obtained in an emergency or by ex parte hearing.

Front 31

What must the plaintiff prove for a preliminary injunction?

Back 31

1. Strong likelihood of success on merits.
2. Irreparable harm to plaintiff if not issued
3. Balancing of hardships favoring plaintiff
4. Advance of public interest if/is not issued.

Front 32

What are the sellers remedies in contracts?

Back 32

1. Contract price-market price + incidentals=Damages

2. Contract price-Resale=Incidentals=Damages

Front 33

What are incidentals?

Back 33

Expenses like storage, transportation, and commission charges incurred to breach.

Front 34

What are the buyer's remedies in contracts?

Back 34

1. Market price-Contract price=Incidentals=damages

2. Cover-Contract price+incidentals=damages

Front 35

What are consequental damages?

Back 35

Sufficiently forseeable at time of K or breaching party on notice and casually related

Front 36

What is expectancy?

Back 36

Puts the plaintiff in as good of a position had the K been performed (benefit of the bargain)

Front 37

What is reliance?

Back 37

Puts the plaintiff in the position they would have been had there not been a K.

Front 38

What is the remedy of lost volume seller?

Back 38

Compensates seller for profit they would have made if the buyer didn't breach (must prove would have made another sale)

Front 39

What is action for the price?

Back 39

Specific performance remedy. Where goods are specifically made for the buyer and can't be resold, or resale would be futile (K price = Incidentals)

Front 40

What is mitigation of damages?

Back 40

Plaintiffs always have a duty to mitigate damages.

Front 41

What is the collateral source rule?

Back 41

Plaintiff can't recover the damages from multiple defendants for

Front 42

What does hanif stand for?

Back 42

Medi-cal case. It is error for the plaintiff to recover medical expenses in excess of the amount paid or incurred.

Front 43

What does Nishihama stand for?

Back 43

Private insurance case- It is error for the plaintiff to recover medical expenses in excess of the amount paid or incurred.

Front 44

What does greer stand for?

Back 44

Market rate medical costs are admissible. Services as a reminder to defense counsel to ensure that verdict forms distinguish medical expenses from other economic damages so that post-verdict hanif motions are successful and so that rights to assert hanif errors on appeal are retained.

Front 45

What is fair market value?

Back 45

The standard measure of compensatory damages. Market value is what a buyer is willing to pay a seller, free of duress or coercion.

Front 46

How do we determine fair market value?

Back 46

1. expert testimony
2. plaintiff's testimony as to his opinion of the value
3. lay opinion
4. market evaluation