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18 Cards in this Set
- Front
- Back
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TORT REMEDIES |
1. Damages (general, punitive, nominal) 2. Restitution (unjust enrichment, replevin & Detinue, ejectment, Constructive Trust/Equitable lien) 3. Injunction |
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DAMAGES MUST BE... |
1. causal 2. foreseeable 3. Definite and certain 4. Unavoidable (duty to mitigate) |
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PURPOSE OF GENERAL DAMAGES |
to make the plaintiff whole and put them in the position they were in prior to the injury |
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ARE ECONOMIC DAMAGES RECOVERABLE IN TORT? |
No. There must be an injury to the person or property or to a business interest |
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PUNITIVE DAMAGES |
Purpose is to punish the wrongdoer. Due process protect against excessive awards. Issue is reprehensibility |
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5 FACTORS TO DETERMINE IF PUNITIVE DAMAGES ARE JUSTIFIED |
1. Physical harm v. Economic harm 2. Reckless disregard for health/safety v. mere indifference 3. Degree of financial vulnerability of the injured person 4. Repeated actions against plaintiff v. isolated incident 5. Intentional malice/trickery/deceit v. accident |
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IF PUNITIVE DAMAGES ARE JUSTIFIED THEN IN WHAT AMOUNT? |
Should be less than 4x the compensatory damages amount unless defendant's conduct was so extraordinarily egregious. If so, higher awards may be justified but rarely more than 9x compensatory award. Consider wealth of defendant - wealthy defendants pay more |
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NOMINAL DAMAGES |
No significant actual damages but there is a cause of action resulting in a declaration of plaintiff's rights |
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UNJUST ENRICHMENT |
(Legal Restitution) Look to the benefit wrongly conferred on the defendant rather than the plaintiff's harm. Damages are amount of benefit to defendant - not loss to plaintiff |
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REPLIVIN |
allows recovery of specific personal property acquired or held unlawfully plus damages for lost use |
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DETINUE |
Recovery of personal property acquired lawfully but now held unlawfully (bailee) |
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EJECTMENT |
To restore real property from which plaintiff was wrongfully outsted |
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CONSTRUCTIVE TRUST |
Court imposed obligation of defendant to convey property to plaintiff, to prevent unjust enrichment of the defendant. Defendant must turn over property and all gains received while in plaintiff's possession |
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DEFENSES TO RESTITTION |
1. sale to BFP - no equitable remedies can be obtained against BFP 2. Laches 3. Unclean hands |
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3 TYPES OF INJUNCTIONS |
1. TRO 2. Preliminary injunction 3. Permanent injunction |
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TEMPORARY RESTRAINING ORDER |
Ex parte Limited duration (10 days, never more than 20) No balancing hardships |
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PRELIMINARY INJUNCTION |
Provisional remedy to maintain the status quo pending final determination of litigation |
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PERMANENT INJUNCTION |
Issued after hearing on merits |
