Tort Remedies

Front 1

Torts Damages

Back 1

Defendant is ordered to pay money to Plaintiff through compensatory, nominal and//or punitive damages

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Compensatory damages

Back 2

Based on damages to the Plaintiff. General Damages compensate for foreseeable losses. Special damages compensate lossess not necessarily foreseeable (actual losses). Special damages must be specifically plead. Theey must be causal, foreseeable, certain and unavoidable to be recoverable.

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4 requirements for compensatory damages

Back 3

Actual causation, foreseeabilty, certainty and unavoidability

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Economic damages

Back 4

Basic certainty rules, calculation must be with sufficient certainty.

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Non-economic damages

Back 5

Basic rules do not apply here. Jury may award any amont it wishes subject to proper instructions.

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Form of judgment payment

Back 6

Must be a single lump sum payment. Installment payments are not allowed.

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Calculation items

Back 7

The award must be discounted to present value and inflation is not taken into account.

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What to write for this calculation issue

Back 8

The judgment must be a single lump sum payment that will be discounted to present value without taking inflation into acocunt (except under the modern rule).

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Nominal damages

Back 9

These are awarded where Plaintiff has no actual injury. They serve to establish or to vindicate the Plaintiff's rights.

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Punitive damages

Back 10

These are awarded to punish the Defendant. 3 Rules, 1) Plaintiff must first show compensatory or nominal damages, 2) D's fault must be more than negligence 3)Punitive damages are awarded in an amount relatively proportionate to actual damages (S.C. Limit to since digit multiple).

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Restitutionary damages

Back 11

These remedies are based on the theory that D should not be unjustly enriched.

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Concept of Restitutionary damages

Back 12

These are based on the Benefit to the D, and the amount is calculated based on the value of the benefit. Cannot be awarded both compensatory and restitutionary damages

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Replevin

Back 13

Plaintiff recovers possession of specific personal property.

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Two part test for Replevin

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1) Plaintiff has right to possession 2) There is a wrongful withholding by D.

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Timing of recovery for Replevin

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Plaintiff can recover the chattel before the trial. Plaintiff will have to post a bond and D can defeat an immediate recovery by posting a redelivery bond.

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Ejectment

Back 16

Plaintiff recovers possession of specific real property

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2 part test for ejectment

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1) The plaintiff has a right to possession. 2) There is a wrongful withholding by Defendant

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Ejectment: Status of D

Back 18

Ejectment is only available against D who has possession of property. Sheriff ejects D from property.

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Constructive trusts

Back 19

Constructive Trust: Imposed on improperly acquired property to which D has title. Defendant serves as trustee and must return the property to the Plaintiff.

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Equitable Lien

Back 20

Imposed on improperly acquired property to which D has title. Property will be subject to an immediate court-directed sale. The monies received go to the plaintiff. If the proceeds of the sale are less than the fair makret vale of the property when it was taken, a deificiency judgment will issue for the difference and can be used against defendant's other assets.

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Rules regarding Constructive trusts and equitable liens

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The Rules: 1) Inadequate legal remedy (D is insolvent or for constructive trusts property is unique 2) Tracing is allowed, 3) Bona Fide Purchasers prevail over Plaintiff 4) Plaintiff will prevail over unsecured creditors.

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Choice of remedy between constructive trust and equitable lien

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If property value subsequent to taking goes up, go with a constructive trust. If it goes down go with equitable lien. When D's property cannot be traced solely to P's property, only an equitable lien is available.

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Injunctive relief

Back 23

Defendant is ordered to do or refrain from doing something. Permanent injunction: issued after full trial on merits. Temporary Injunction: Issued pending trial on merits. If in doubt go with preliminary injunction

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Temporary Injunction: two part test

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1) Establish there is irreparable injury (time frame context - injury while waiting for a full trial on the merits). Balance against hardships. 2) Establish a likelihood of success. 3) Bond requirement to reimburse D if the injunction injures him and P does not succeed.

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TRO

Back 25

Issued pending a hearing to determine whether preliminary injunction should issue. Test is identical to that for preliminary injunction. TRO can be ex-parte. Notice is not required, and an adversarial proceeding is not required .

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Permanent Injunction four part checklist

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1) inadequate legal remedy 2) Feasibility of enforcement 3) balancing of hardships 4) Defenses

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Inadequate Legal Remedy

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Legal remedy alternatives, replevin, ejectment or money damages.Replevin = Sheriff may not be able to recover it, find or identify, ejectment = sheriff may refuse to act, money damages = Too speculative, D's insolvent or irreparable injury

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Feasibility of enforcement

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Negative injunction = order D to stop. No enforcement problem Mandatory injunction = Ordering D to affirmatively do something. There MAY be an enforcement problem based on 1) difficulty of supervision, or 2) concern with effectively ensuring complaince.

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Mandatory injunction fact patterns

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Act involves great taste, skill or judgment = injunction denied. A series of acts over a period of time = injunction denied unless plaintiff case is otherwise great. Out of state act required = resident D - granted, non-resident D - denied

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Balancing of the hardships

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4 rules 1) Must be a gross disparity between D's detriment and Plaintiff's benefit. 2) Even then there will be no balancing if D's conduct was willful (intentional). 3) If you decide to balance hardships, consider awarding P money damages. 4) Hardship to Public.

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Defenses

Back 31

unclean hands = bad plaintiff. Laches = Clock runs when P learns of the injury. When the delay has been unreasonable and prejudicial it cuts off right to relief. Impossibility = impossible for D to carry out. Free Speech = if tort is defamation or a privacy publication tort ,denied on free speech

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Crimes

Back 32

Equity will not enjoin crimes

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Who is bound by an injunction?

Back 33

D, employees, agnts and others acting in concert.

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Erroneous injunction

Back 34

You have to obey an erroneous injunction and then have it modified or resolved.

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Civil Contempt

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Civil contempt (to coerce). Money (fine) or imprisonment: D holds the keys to the jailhouse

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Criminal Contempt

Back 36

To punish. Money Imprisonment: Can not get out of prison. Remains for a set amount of time.