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32 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Remedies for torts
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Compensatory
Nominal Punitive Injunctive |
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Compensatory
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Reliance
Restitution |
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Reliance
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To restore P to the position it would have been in if it had never made such a contract
To restore P to the position he rightfully would have come to but for D's wrong. |
Typically recovering out of pocket losses
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Measure of damages:
The lesser of two rule |
The difference in value of the property before and after the damage (diminution in value)
Courts should not award repair or restoration costs that are disproportionate to the loss in value |
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The Lesser of two rule-exception
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Special purpose property (e.g., property of nonprofit, charitable, or religious organization)
Lack of active market for the damaged property Unique USE of the property by P (not whether the property is unique) |
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When to make the valuation?
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The standard rule is to value property at the time and place of the loss in torts, or at the time and place for delivery in contract
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Wrongful Death at common law
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No action for wrongful death
A personal injury action dies with the person |
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Wrongful Death Statute
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Majority:
Loss to survivors-the wrongful death beneficiaries |
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Wrongful Death
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Economic losses
Noneconomic losses |
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Wrongful Death-Economic losses
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Loss of support
Loss of service Funeral expenses |
Remarriage irrelevant
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Wrongful Death-Noneconomic losses
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Loss of society, comfort, protection, parental guidance, and nurture
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Exclude: Grief and value of life
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Consequential damages in torts-requirements
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If the unlawful acts of D
Proximate cause-were the proximate cause of the loss (profit) Certainty (Not arbitrary or spectuative)-were proved to a reasonable degree of certainty |
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Pain and Suffering
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Such injuries or damages are personal and individual
Damages for mental pain and suffering, where there has been no physical injury, are allowed only in exteme cases. |
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Fraud
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Requires a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, was was relied upon, and which cause injury.
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Potentially independent torts
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Bad-faith breach
Fraud Conversion Tortious interference with contract or business relations |
D entered into the K consciously intending not to perform (fraud)
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Fraud
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Fraudulent inducement
Misrepresentation |
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Economic loss v. noneconomic loss
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The injured party is entitled to recover all economic losses proximately caused by the injury
For noneconomic damages, the court in some states must limit recovery to the statutory limits. |
For noneconomic loss, there is lack of adequate market valuation
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Economic loss
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Lost income
Medical expenses Any other expenditures incurred Not including attorneys' fee |
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Noneconomic loss
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Nonpecuniary harm, including
pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss |
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Torts reform-constitutional challenges
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Right to a trial by jury
Open courts and right to remedy Due process Equal protection Separation of power |
Focus primarily on capping noneconomic loss
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Noneconomic loss-Determination
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Per diem argument (allowed by some courts)
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Remittitur
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A device a judge can use to lower the amount of damages awarded by a jury, which gives P the option of either taking the lower amount chosen by the judge or having a new trial on the issue of damages
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Additur
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A device allowed in some courts, which gives the defendant the option of taking higher amount of damages chosen by the judge or a new trial ion the issue of damages.
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Unavailable in federal courts because it violates the right to a jury trial.
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Physical impact requirement for emotional distress recovery
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P is in the "zone of physical danger"
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e.g., P was nearly hit by a car
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Fear of disease
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To recovery for emotional distress, P must show his alleged fear is genuine and serious.
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Dignitary harm
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The Supreme Court held that the proof of a constitutional violation entitled P to nominal damages, but P could not recover additional damages (e.g., emotional distress) unless P could prove them
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Constitutional violation: due process violation-right to notice or hearing
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Tax on damage awards
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Tax-free
Personal injuries Taxable Income losses Punitive damages Emotional distress |
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Interests
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Prejudgment interests
Postjudgment interests |
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Prejudgment interests-Exceptions
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The delays due to P
Not penalty for D's bad faith |
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Prejudgment interests-Barriers in state courts
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Liquidated amount requirement in some states
Statutory interest |
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Present value
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Two ways to calculate:
Nominal wages discounted back by actual interest Real wage discounted back by real interest rate |
Real interest rate = Nominal interest rate - inflation
(1 + R) = (1 + r)(1 + i) R: The norminal interest rate r: The real interest rate i The inflation rate |
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Economic loss rule
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A negligence P who suffers no injury to her perosn and no physical damage to her property cannot recover for pure economic losses
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