class 1 Flashcards
remedy
a remedy is the benefit the P obtains through a lawsuit- the way to make the P whole. for every legal wrong, there is a corresponding remedy
substitutional remedy
one that is intended to replace what a P has lost (money)
specific remedy
one that gives the P exactly what the P would have had, or would have obtained, if the legal wrong had not been committed (specific performance or injunction)
declaratory remedy
one that declares the rights of the parties or defining the legal relationship of the parties without awarding damages or ordering any specific action
historical perspective; legal v. equitable
separate courts, procedures and remedies. merged into one civil action federally and in most state ji’s with some substantive distinctions that are still in place.
some jx’s keep them mostly separate (Delaware, Mississippi, Tennessee, New Jersey, Arkansas and South Carolina
legal remedies
the award of damages/money. the goal is to place the P in the position the P would have been in but for the legal wrong. money is used to erase the consequences of the legal wrong to the P. categories include nominal, compensatory, and punitive. most legal relief is substitutionary.
equitable remedies
the award of non-monetary solution. the goal is to place the P in the fairest position under the circumstances. this is a court-ordered relief for the P that is used when ordinary legal remedies-such as damages (money)- are considered inadequate. Most equitable relief is specific. typically, specific performance, injunction, restitution, etc.
adequate legal remedy
money can be given to replace the item sought because the item is sought is readily available on the open market.
legal remedies: generally
D ordered to pay money, principle of making whole, proof and jury trials, court judgment and enforced by lien
equitable remedies: generally
D ordered to do or not do something, principle of fairness, discretion and judge determined, court order, requiring someone to do something, enforced by contempt of court
writ of execution
legal remedy: D fails to pay a money judgement, the P must file a separate action to execute on the judgement. the sheriff seizes and sells D property
motion for contempt
equitable remedies: if the D fails to comply with a court order, the P files a motion for contempt- for money payment for failure to comply or jail.
purposes of tort damages
place the P in as favorable of a position as they were before the tort occurred. promote justice by providing compensation. place the cost on the wrongdoer, not the V and not society, deterrence for others; motivate others to act reasonably.
how torts damages are limited
proximate cause and defenses
3 torts damages categories
physical injury, real property, personal property
nominal damages
symbolic, just acknowledging the P has a claim even if there really is no damage.
rare- usually in trespass to land when no actual damage is done when someone enters the land.
compensatory damages
substitutionary damages- actual damages are damages for harm that can be provided to have occurred, either tangible or intangible.
economic (special)
objectively provable monetary losses
monetary loses that have a specific value associated with them. able to be quantified, medical bills, and medical expenses. lost wages or loss of earnings, future lost earning capacity, property damage, out-of-pocket expenses.
non-economic (general)
subjective, non-monetary damages
monetary compensation that is not associated with a specific monetary value.
very difficult to quantify, pain and suffering, loss of companionship, loss of consortium, mental anguish, loss of quality of life, emotional distress, disfigurement or impairment
direct damages
damages from the tort itself (cost of repair, cost of replacement, medical bills)
consequential damages
damages for losses that occur as a result of the tort (lost profits, lost wages)
cause-in-fact
but for, substantial factor, alternative liability theory
proximate cause
foreseeable P and type of harm, manner of harm and extent of harm.
eggshell P
D takes the P as they find them
pure economic loss
may not recovered for pure economic loss. there must be some kind of physical impact that leads to physical injury or property damage.
certainty of damages
certainty in fact and certainty in amount. the more certain in fact, the more relaxed the court will be in certainty in amount.
unavoidable
the P must make reasonable efforts to mitigate their damages and cannot recover for damages that are reasonably avoidable.
avoidable consequences doctrine and pre-accident precautions
affirmative defenses can limit damages
contributory negligence, comparative fault, assumption of the risk. credit for benefit rule
