Damages and Remedies Flashcards
Difference between tort and K damages
In K cases, consequential damages are generally not recoverable unless allowed by statute or K itself
Measure of Tort Damages
amount necessary to make P whole
Policy = compensation
Types of Damages
- Compensatory
- General
- Liquidated
- Punitive
- Special
- Unliquidated
Types of compensatory damages
- General
- Special
- Nominal
For compensatory damages, what is the relationship between the damage and the wrongful act?
- Direct damage
2. Consequential damages
General Damages: what is it?
type of compensatory damages–tort cases
Presumed to flow from the commission of a tort act.
Noneconomic and Non-pecuniary in nature
How do you measure general damages?
measured by enlightened conscious of an impartial jury
Where does general damages come from?
- Pain and Suffering: inferred from physical injuries
- -shown subjectively (party’s own testimony) or objectively (through expert testimony or testimony of TP’s observation testimony) - Mental Pain and Suffering: accompanies pain and suffering. Must be conscious to recover.
- -If entire injury = mental –> intentional/willful/wanton misconduct by D must be proved, negligent conduct must involve an impact resulting in physical injury or aggregation of prior diagnosed mental illness.
Special Damages
Type of compensatory damages– tort cases
Loss of money or something that money can buy.
Paper damage- usually can produce documentation to prove it
Must be plead with particularity in the complaint
Mere sentimental value is NOT proper
Future special damages must be reduced to present cash value (calculated by discount rate)
Ga law: damages from motor vehicle accident
Ga provides separate causes of action for PI and property damage arising from motor vehicle accidents.
Punitive Damages
Type of compensatory damages–tort cases
Evidentiary standard: clear and convincing
Policy: deterrence/punishment
Pleading: must ask for it complaint/amendment to complaint
Trial procedure: Bifurcated: 2 verdicts/1 jury
Recovery Caps:
- $250,000 per case
- Unlimited in products liability and cases where D acted with specific intent, but the award must be in a ration to the compensatory damages, likely less than 10:1 ratio.
Not available against the sovereign
When injury is mental only–only 1 compensatory recovery, no punitive damages allowed
Products Liability Punitive Damages Restrictions
Ga extracts bulk of unlimited award (75% extracted)
Only one recovery per a particular product defect (race to recovery first)
Ga supreme ct has rejected constitutional challenges on the cap and extraction provisions
Restriction on Damages
1) Duty to Mitigate
2) Speculative Damages = NOT recoverable
3) Collateral Source Rule
4) Economic Loss Rule
Duty to Mitigate
Restriction on damages
Applies in tort/K cases
P has duty to lessen damages by exercising ordinary care.
Duty = subject to reasonableness
Does not apply to intentional torts or fraud or failure to wear as seatbelt
Are speculative damages recoverable?
No, this is a limitation on damages
Are lost future profits recoverable?
Yes, they are recoverable in tort cases when 1) proximately causes and 2) reasonably certain.
Intentional wrongs remove the element of remoteness.
Collateral Source Rule
Restriction on damages
Excludes payment from collateral sources to the P.
Collateral sources examples: insurance, sick pay from work, gifts
Collateral Status in Ga = valid
Is not applied if the P opens the door or in K cases generally
Economic Loss Rule
Restriction on damages
When a defective product injures only itself, or a system that it is a component of, the P is limited to K remedies (including applicable warranties)
Precludes recovery in cases of consequential damages, such as loss profits.
Damages for Loss of Consortium
Damages include loss to an uninjured spouse. Uninjured spouse can recover from tortfeasor for the affects of injuring the spouse. (such as how the martial relationship was altered)
Measure: enlightened conscious of impartial juror
Loss of Child’s consortium: limited to value of services (have to show that the child was bringing in value, i.e. paycheck)
Loss of Parental consortium: not available in Ga
Conversion Damages
3 Possible remedies:
1) Make D give it back intact
2) If its damaged, D must pay market price
- -Market price = highest proved value between time of conversion and time of trial
3) Can get rent for each day and get your stuff back
Damages for Fraud
Give Benefit of the bargain
Policy: deterrence
Other damages available = punitive, consequential, general and atty. fees
Damages for interference with economic opportunities
P may recover against a D who interferes with present or perspective business or K relations.
Measure = loss of profits
P must show interference was malicious, intentional
Punitive damages may also be recover
P may not recover if D’s conduct = privileged or if D was not a stranger to the K
P’s recovery may be limited to single satisfaction rule, which bars P from recovering K expectations from both the D AND the party who breach
K damages: purpose
Put wronged party in the same position as if bargain had been fulfilled according to its terms
General Measure of K damages
K damages limited to
1) those arising directly from the breach of K
2) what was contemplated by the parties @ the time K was made
Implied K
Restitutionary remedy =Quantum Merit
– When goods or materials have been furnished by one to another or services have been rendered, the law implies a promise to pay the reasonable value thereof.
Measure = value of goods to the receiptant
Remote or Consequential Damages in K
Absent a statutory or K provision, not recoverable unless traceable solely to the breach and capable of exact computation
Fraudulent Ks
When a K = fraudulent, injured party, upon discovering the fraud, may
1) affirm the K and sue for breach
OR
2) rescind the K and sue for fraud
***Ks with merger or entire agreement clauses: A party affirming a K containing these clauses may be estopped from claiming reliance on external fraudulent representations.
K Punitive Damages
Not recoverable in breach of K except for breach of promise to marry
Equity and Non-Equity Remedies Steps
Step 1: General requirements for equitable relief satisfied? (Legal remedy must be inadequate, equitable relief must be reasonable)
Step 2: Specific requirements for particular equitable remedy sought satisfied?
Step 3: Any equitable defenses available to prevent relief?
What are the general requirements for an equitable remedy?
1) Legal remedy must be inadequate
2) Equitable remedy must be feasible
Examples of when Legal Remedies are inadequate
1) Subject matter is unique
2) damages = speculative/uncertain
3) multiple lawsuits are required
4) D = insolvent
5) Harm = irrevocable
When is an equitable remedy feasible?
1) Presence in the forum state:
- -D is in the jurisdiction (in personam D)
- -prop is subject to the litigation
2) Capacity of equity court to determine/supervise compliance
Equity might decline relief in cases involving what?
1) subjective application of taste (D doesn’t like the painting P has done)
2) requires constant or continuous supervision
3) would compel a rendition of personal service
4) would compel service in another jurisdiction
Jurisdiction to Award Non-Monetary Remedies
Federal Court: District Courts
Ga Court: Superior Court
–Lower courts have the authority to transfer cases to the Superior Court when equitable relief becomes necessary)
Equitable Relief: Jury Trials?
Generally no right to jury trials
A jury may determine equitable issues if
1) statute authorizes it
2) common facts involving separate claims for monetary damages
3) single claims of legal and equitable issues
Preventative Injunction
Equity can prevent a threatened wrong/injury with a preventative injunction
Corrective Injunction
Equity can redress an injury that has been inflicted
Obtaining injunctive relief
1) Must satisfy all requirements for equitable relief
2) no equitable defense can be available
3) determine if particular tort is one for which equitable relief is available
All equitable relief = discretionary
Injunctions are normally available for ??
1) Trespass
2) Conversion
3) Intrusion on Seclusion (Invasion of privacy)
4) Appropriation of Likeness (Invasion of Privacy)
Injunctions are sometimes available for ??
1) to eliminate a nuisance provided it is continuing/ongoing and not a completed nuisance
2) to prevent waste: provided that is destructive (causing permanent harm) or permissive (failing to upkeep property) but not for ameliorative (changing prop but in a way that increases its value )
3) tortious interference unless D’s conduct = privileged
Injunctions are normally NOT available for ??
1) Defamation
2) False Light
3) Public Disclosure of Embarrassing Facts
–These torts produce constitutional concerns about prior restraint on First Amend rights.
Will equity enjoin criminal proceedings?
No.
Equity will also not enjoin threatened criminal proceedings absent extraordinary circumstances
The right to appeal is considered an adequate legal remedy in criminal proceedings.
Restrictive Covenants
Ga allows them; Covenant Not to Compete in employment & commercial Ks
An employee may agree to refrain, for a stated period of time after employment ends, from 1) soliciting business away from employer’s customers and 2) engaging inn competition against employer.
2 year limit = normally reasonable
Unlimited = reasonable in confidentiality agreements
5 years = reasonable in sale of business restrictive covenants
Restrictions on geographic territory must be reasonable –limited to the areas in which employer does business during employment relationship.
Violations can be prevented by injunctions
Does NOT apply to attorneys
Blue Pencil Rule
allows cts to limit the over broad provision to something the court considers reasonable
Interlocutory Injunctive Relief
Necessary to preserve the status quo for the time period needed to determine issues in litigation .
Types:
1) TRO: obtained w/out a hearing, effective for a very short period of time (30 days in GA) Must show immediacy of injury that will justify proceeding w/out hearing
2) Interlocutory Injunction: only granted after hearing both sides, injunction bond is normally required
Obtaining Interlocutory Injunctive Relief
To obtain relief, Petitioner must show:
1) irrevocable injury
2) likelihood of success on the merits
Specific Performance
Equitable remedy: party to K is ordered to perform according to its terms
How to obtain it?
1) Meet general requirements for equitable relief
2) No equitable defenses available
3) specific performance requirements = met
Requirements for Specific Performance
1) Satisfy general requirements for equitable remedies
2) show existence of K
3) all condition precedents = met
4) mutuality of remedy
How to establish a valid K for specific performance?
Petitioner must show:
1) certainty of terms (identity of parties, consideration, time/manner payment, subject matter)
Must be greater certainty than normally required
Consideration: adequacy of consideration itself = not relevant except when K = unconsciousnable or K = adhesion K
For specific performance, how do you tell if all the conditions have been fulfilled?
1) make sure there is no time of the essence clause. This clause insists full performance by a certain date, failure to comply can prevent specific performance unless equity ct ignores strict compliance.
2) Sufficiency of title: if seller cannot convey marketable title, equity will not grant specific performance unless
- deficiency = minor, specific performance = granted w/ reasonable deduction of the price
- deficiency = severable = specific performance = granted w/ reasonable deduction of the price
Equity court will ignore strict compliance with a time of the essence clause when: ??
1) Loss to other party = small
2) undue hardship would occur with compliance
3) time of essence = waived
4) tardiness was de minims
For specific performance, how to you tell if mutuality exists?
Remedies are mutual if
1) both parties can perform
2) P’s counter performance can be secured
What does mutuality of remedies mean?
One party to a K is not entitled to specific performance unless the other party would also be entitled to have the K strictly enforced.
Specific Performance on Land K
If a K to sell land is enforceable by specific performance than the doctrine of equitable conversion takes effect.
Buyer is considered the owner of prop upon executing the K, seller retains only a security title until purchase price = paid
Equitable Conversion
Majority Rule: (Includes GA): Buyer has risk of loss if the building = damaged/destroyed before closing. Seller = entitled to specific performance w/out reduction in price, but buyer may have right to equity in insurance proceeds collected by seller
Minority Rule: seller has risk of loss until possession is delivered.
Means to enforce specific performance in land K
1) Contempt: ordering seller to convey; buyer to pay)
2) Decree (transferring title by court order upon payment)
What specific performance will be ordered when only the buyer and property are present?
Specific Performance by decree
What specific performance will be rendered when only the buyer and seller are present (prop is not)
Contempt
What specific performance will be rendered when seller and property are present but buyer isnt?
Specific performance = unlikely
What is Rescission?
Remedy where voidable K is put to an end and the parties are treated as though it had never been made.
What is reformation?
Remedy that treats a K as valid and changes a writing setting forth or implementing the agreement to conform to the originally intended agreement
How to obtain rescission?
Equity will rescind if, at the time the K was entered into, there was
1) mutual mistake on substantive matter
2) unilateral mistake = wont suffice unless it is known to other party/would create hardship to mistaken party
3) duress
4) undue influence
5) lack of capacity
5) failure of consideration
Negligence = NOT a ground for rescission.
If an agreement is rescinded what relief is available?
Restitutionary relief is available to recover any value exchanged prior to rescission.
How do you obtain reformation?
Requires a valid K.
Writings will be reformed if there was:
1) mutual mistake on collateral material
2) unilateral mistake if both parties should have been aware of it
3) negligent misrepresentation on one who has privity w/ K.
Declaratory Judgement
Basis for Jurisdiction: must be actual controversy between parties involving unsettled rights/obligations/relationships.
Superior Cts must have power to declare
1) rights/obligations of the parties
2) nature of legal relationship
No requirement for petitioner to show present monetary harm
There is a right to jury trial (verdict is in the form of interrogatory answers)
Constructive Trusts and Equitable Liens: when available and differences between the two?
Available when property of the P has been misappropriated by D.
Constructive trust: title to P’s property has been taken
Equitable Lien: requires title to be marketable
Constructive Trust Requirements
1) Title/ownership in D wrongly
2) unjust enrichment of D at P’s expense
3) inadequate legal remedy shown by D being insolvent
Defense to Constructive Trusts
1) transfer to BFP without notice
Subrogation
Involves substituting of a TP as P in place of actual victim
Circumstances when subrogation arises:
1) P paid vic’s loss
2) P paid an obligation of vic
3) P paid discharge of lien of vic’s
Only available to prop rights
Not available to volunteers
What tort claims are generally not assignable for subrogation?
1) PI claims
2) Fraud
3) legal malpractice
Ne Exeat
Writ of ne exeat is a type of civil arrest warrant issued to restrain person or prop from leaving the state. May have to post bond in order to effectuate the warrant.
Issued to:
1) joint obligators
2) person with underlying disabilities
3) remainderman
4) mortgagees
5) irrevocably harmed
D may discharge the restraint by posting bond
Quia Timet
Purpose: quiet title to land
Objective: obtain marketable title
Types:
1) conventional (against a known individual)
2) against the world (no known individual)
Interpleader
Types:
1) statutory, brought in any ct of record
2) equitable, brought in ct of equity
The holder of a debt/prop who is exposed to multiple liability may file a petition to determine the identity and interest of all persons in connection of the liability.
Defenses to Interpleader
1) adequate legal remedy/defense
2) collusion between parties
3) funds not paid in court
Bill of Peace
Grounds:
1) confirm previously established right
2) avoid multiplicity of actions
Purpose: end litigation
Enforced by an injunction
Mandamus
only applies to governmental officials
Purpose: compel performance of official duty
Standing to bring a Mandamus:
1) ppl who claim special interest in performance of official duty
2) ppl who claim monetary loss from failure to perform official duty
Defenses to Mandamus
1) adequate legal remedy exists
2) act is discretionary (cant compel a discretionary act)
Prohibition
Purpose: restrain illegal exercise of jurisdiction
Generally used against lower/inferior courts and judiciaries
Can be used against executive/military officer when acting in judicial capacity
Will NOT be used against governor
Quo Warranto
Addresses the right of a person to hold public office
Standing:
1) anyone who claims the office
2) any citizen/taxpayer who is affected by this official’s jurisdiction
Applies to all civil/military officers
Does NOT apply to the Governor
Disputed issues of fact may be tried by a jury
What is an equitable defense?
It prevents a P form obtaining an equitable remedy that would otherwise be available
Equitable Defenses
1) Unclean Hands
2) Impossibility and Hardship
3) Freedom of Speech
4) Time Bar: Laches
Unclean Hands
An equitable defense
Available if the P is guilty of improper conduct proximately related to the same transaction for which P seeks equitable relief
Impossibility and Hardship
Equitable Defense
Equity will not order relief that is not feasible.
Equity will not order something that is not within the capacity of the person ordered to do.
Equity will not order relief when the burden on the D is disproportionate to the gain of the P.
Freedom of Speech
Equitable defense
Based on the constitutional guarantee of free speech and may be used to prevent injunctive relief in defamation and invasion of privacy cases.
Time Bar: Laches
Equitable defense
Law employs a fixed and arbitrary time bar in the SoL.
Equity uses a flexible time bar called laches.
Available when P’s delay in bringing suit is
1) unreasonable based on when P obtained knowledge of the wrong
2) prejudicial to D
