(3) Remedies: Torts Legal Remedies

Question 1

Rule & Formula:

Compensatory Damages

Answer 1

Rule: Compensatory damages attempt to put the injured party in the same position it would have been in but for the injury.

Rule: The damages must be (1) Actual Cause; (2) Proximate Cause; (3) certain – the damages cannot be speculative; AND (4) unavoidable – the P must take reasonable steps to mitigate their loss.
*Actual Cause – but for D’s conduct
*Proximate cause – the result to P was foreseeable based on D’s conduct.

Formula: P may be compensated for past, present and future harms, pain and suffering (but P must be aware of the pain). For future earnings the court uses the following formula: (persons earning ability before injury) – (persons earning ability post injury).

Question 2

Nominal Damages

Answer 2

Nominal damages are available when a P has not suffered an actual injury but has established the elements of the cause of action. The P is awarded a trivial sum of money. Causes of actions like negligence or fraud in which damages is an element, nominal damages are not available.

Question 3

Punitive Damages

Answer 3

Punitive damages are awarded to punish the D and are available if: (1) the P was awarded actual damages but in some cases nominal damages will suffice; (2) the punitive damages are proportional to the actual damages (an award that exceeds single digit ratio between punitive and compensatory damages doesn’t comply with due process clause); AND (3) the D’s conduct was willful, malicious or egregious (must be more than negligent).

Question 4

Restitution Damages (Unjust Enrichment)

Answer 4

Restitution is awarded to prevent unjust enrichment and is available when one party confers a benefit onto another party. Damages will be awarded based on the value of the benefit conferred upon the D.

Question 5

Damages for Fraud

Answer 5

Damages for fraud or deceit are either:
a. (a) the actual losses suffered = (actual value that P gave at the time of the transaction) – (what P received); OR
b. (b) the benefit of the bargain = the fair market value of the property at the time of conversion
c. A P may also receive reasonable compensation for time spent trying to recover the property

Question 6

Damages for Conversion of Property

Answer 6

When a P has suffered a conversion, he may recover either: (a) possession of the property; OR (b) the fair market value of the property at the time of conversion.
*A P may also receive reasonable compensation for time spent trying to recover the property.

Question 7

Damages for Trespass to Chattels

Answer 7

In an action for trespass to chattels, the damages awarded are the actual damages suffered which may include the cost of repairs.

Question 8

Damages for Trespass to Land

Answer 8

in an action for trespass to land, damages are measured by either: (a) the diminution in value of the property; OR (b) the cost to repair the property.