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25 Cards in this Set
- Front
- Back
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The Tort Remedies
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1. Legal Remedies
Damages: (1) Compensatory; (2) Nominal; and (3) Punitive 2. Restitutionary Remedies A. Legal Restitutionary Remedies Restitutionary Damages Replevin Ejectment B. Equittable Restitutionary Remedies Constructive Trusts Equitable Liens 3. Equitable Remedies Injunctive Relief |
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Compensatory Damages (Tort)
4 Requirements |
1. Causation- "but for"
2. Foreseeability-proximate 3. Certainty- damages cannot be too speculative 4. Unavoidability-P must take reasonable steps to mitigate |
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Personal Injury Torts
The certainty rules |
Economic Losses-calculation must be with sufficient certainty
non-economic losses-(pain & suffering) The jury may award the amount it wishes subject to proper instructions |
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Personal Injury Torts
Form of judgment payment |
"The judgment must be a single lump sum payment that will be discounted to present value without taking inflation into account (except under the modern trend).
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Nominal Damages (Tort)
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These are awarded where P has suffered no actual injury. They serve to establish or to vindicate P's rights.
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Punitive Damages (Tort)
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Basic Concept: to punish the D
rule 1: P must first be awarded compensatory or nominal damages (or restitutionary) rule 2: D's type fault must be greater than mere ordinary negligence (intentional, fraud, etc.) rule 3: awarded in an amount relatively proportionate to actual damages. SC limits to single digit multiple of actual damages unless conduct facts are extreme. |
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Restitutionary Remedies
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These remedies are based on the theory that the D should not be UNJUSTLY ENRICHED
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Restitutionary Damages
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These are based on the BENEFIT to the D. The amount is calculated based on the value of the benefit.
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Replevin
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P recovers possession of specific personal property.
The P must establish that: (1) the P has a right to possession; and (2) there is a wrongful withholding by D |
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Ejectment
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P recovers possession of specific Real Property
P must establish that: (1) P has a right to possession; and (2) there is a wrongful withholding by the D |
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Constructive Trust
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Imposed on IMPROPERLY ACQUIRED PROPERTY to which D has title. D serves as "trustee" and must return the property to the P
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Equitable Lien:
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Imposed on improperly acquired property to which the D has title. Property will be subject to an immediate court-directed sale. The monies received go to the P. If the proceeds are less than the FMV of the property when it was taken, a deficiency judgment will issue for the difference and can be used against D's other assets.
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The rules of constructive trusts and equitable liens
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rule 1: inadequate legal remedy: the D is insolvent or the property is unique
rule 2: tracing is allowed rule 3: BFP's prevail over the P rule 4: P will prevail over unsecured creditors |
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Choice of Remedy: Constructive Trust or Equitable Lien?
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(i) if the property value subsequent to taking goes up-->constructive trust
(ii) if the property value subsequent to taking goes down-->go with an equitable lien (iii) when D's property cannot be traced solely to P's property, only an equitable lien is available. |
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The Equitabel Remedy: Injunctive Relief
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D is ordered (enjoined) to do or refrain from doing something
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Temporary/Preliminary Injunction
Model Bar Answer |
Temporary Injunction: In issue is whether P can obtain temporary injunctive relief. To do so, P must meet a 2-part test.
(i) Irreparable Injury: (discuss facts in time frame context) (ii) Likelihood of Success: (Discuss the "probability." Impose bond requirement |
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Temporary Restraining Order (TRO)
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Issue pending a hearing to determine whether preliminary injunction should issue.
TRO proceeding can be ex parte (notice not required) same test as Temporary injunction limited to 10 days |
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Permanent Injunctive Relief
5-part checklist "I'll put five bucks down" |
1st: inadequate legal remedy- (replevin, ejectment, money damages)
2nd-Property right/protectable interest requirement 3rd- Feasibility of Enforcement 4th- Balancing of Hardships (i) gross disparity (ii) D's conduct was willful (iii) award P damages (iv) hardship to the public 5th- Defenses a. unclean hands b. laches c. free speech |
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Compensatory Damages Model Answer
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P is entitled to compensatory damages to put her in the position she would have been in had this wrong and resulting injury not occurred.
On these facts... |
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Personal Property Torts
Available Remedies |
1) Destroyed Property
Compensatory 2) Damaged Property Compensatory 3) Dispossession (wrongful taking or withholding) Compensatory Restitutionary Replevin Mandatory Injunction Constructive Trusts/Equitable liens Self Help (reasonable force to recapture) |
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Real Property Torts
Available Remedies |
1) Trespass-nominal, restitutionary, injunction
2) Destruction/Damage- compensatory, injunction 3) Disposession-compensatory, restitutionary, ejectment, constructive trust/equitable lien 4) encroachment- compensatory, injunction 5) nuisance- compensatory, injunction |
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The Equitable Remedies (Contract)
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Specific Performance
Recission Reformation |
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Liquidated Damages Clause
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2 part test for validity: (1) damages very difficult to ascertain at time of formation; (2) this was a reasonable forecast of what they would be
Results: if valid: Only liquidated amount if invalid: only actual damages |
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Consequential Damages
B chatty |
Available for related damages foreseeable at the time of formation
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Breached Contracts
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breaching P: (modern view) recovery allowed but cannot be greater than the contract rate and reduced by any damages suffered by D.
non-breaching party: restitutionary damages for the value of the benefit (may be greater than contract rate) can get property back if it is unique or D is insolvent. |
