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2014 Ga Bar > Damages and Remedies > Flashcards

Damages and Remedies Flashcards

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0
Q

Difference between tort and K damages

A

In K cases, consequential damages are generally not recoverable unless allowed by statute or K itself

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1
Q

Measure of Tort Damages

A

amount necessary to make P whole

Policy = compensation

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2
Q

Types of Damages

A
  1. Compensatory
  2. General
  3. Liquidated
  4. Punitive
  5. Special
  6. Unliquidated
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3
Q

Types of compensatory damages

A
  1. General
  2. Special
  3. Nominal
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4
Q

For compensatory damages, what is the relationship between the damage and the wrongful act?

A
  1. Direct damage

2. Consequential damages

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5
Q

General Damages: what is it?

A

type of compensatory damages–tort cases

Presumed to flow from the commission of a tort act.
Noneconomic and Non-pecuniary in nature

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6
Q

How do you measure general damages?

A

measured by enlightened conscious of an impartial jury

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7
Q

Where does general damages come from?

A
  1. 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)
  2. 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.
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8
Q

Special Damages

A

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)

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9
Q

Ga law: damages from motor vehicle accident

A

Ga provides separate causes of action for PI and property damage arising from motor vehicle accidents.

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10
Q

Punitive Damages

A

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

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11
Q

Products Liability Punitive Damages Restrictions

A

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

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12
Q

Restriction on Damages

A

1) Duty to Mitigate
2) Speculative Damages = NOT recoverable
3) Collateral Source Rule
4) Economic Loss Rule

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13
Q

Duty to Mitigate

A

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

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14
Q

Are speculative damages recoverable?

A

No, this is a limitation on damages

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15
Q

Are lost future profits recoverable?

A

Yes, they are recoverable in tort cases when 1) proximately causes and 2) reasonably certain.

Intentional wrongs remove the element of remoteness.

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16
Q

Collateral Source Rule

A

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

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17
Q

Economic Loss Rule

A

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.

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18
Q

Damages for Loss of Consortium

A

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

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19
Q

Conversion Damages

A

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

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20
Q

Damages for Fraud

A

Give Benefit of the bargain

Policy: deterrence

Other damages available = punitive, consequential, general and atty. fees

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21
Q

Damages for interference with economic opportunities

A

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

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22
Q

K damages: purpose

A

Put wronged party in the same position as if bargain had been fulfilled according to its terms

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23
Q

General Measure of K damages

A

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

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24
Q

Implied K

A

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

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25
Q

Remote or Consequential Damages in K

A

Absent a statutory or K provision, not recoverable unless traceable solely to the breach and capable of exact computation

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26
Q

Fraudulent Ks

A

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.

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27
Q

K Punitive Damages

A

Not recoverable in breach of K except for breach of promise to marry

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28
Q

Equity and Non-Equity Remedies Steps

A

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?

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29
Q

What are the general requirements for an equitable remedy?

A

1) Legal remedy must be inadequate

2) Equitable remedy must be feasible

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30
Q

Examples of when Legal Remedies are inadequate

A

1) Subject matter is unique
2) damages = speculative/uncertain
3) multiple lawsuits are required
4) D = insolvent
5) Harm = irrevocable

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31
Q

When is an equitable remedy feasible?

A

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

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32
Q

Equity might decline relief in cases involving what?

A

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

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33
Q

Jurisdiction to Award Non-Monetary Remedies

A

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)

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34
Q

Equitable Relief: Jury Trials?

A

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

35
Q

Preventative Injunction

A

Equity can prevent a threatened wrong/injury with a preventative injunction

36
Q

Corrective Injunction

A

Equity can redress an injury that has been inflicted

37
Q

Obtaining injunctive relief

A

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

38
Q

Injunctions are normally available for ??

A

1) Trespass
2) Conversion
3) Intrusion on Seclusion (Invasion of privacy)
4) Appropriation of Likeness (Invasion of Privacy)

39
Q

Injunctions are sometimes available for ??

A

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

40
Q

Injunctions are normally NOT available for ??

A

1) Defamation
2) False Light
3) Public Disclosure of Embarrassing Facts

–These torts produce constitutional concerns about prior restraint on First Amend rights.

41
Q

Will equity enjoin criminal proceedings?

A

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.

42
Q

Restrictive Covenants

A

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

43
Q

Blue Pencil Rule

A

allows cts to limit the over broad provision to something the court considers reasonable

44
Q

Interlocutory Injunctive Relief

A

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

45
Q

Obtaining Interlocutory Injunctive Relief

A

To obtain relief, Petitioner must show:

1) irrevocable injury
2) likelihood of success on the merits

46
Q

Specific Performance

A

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

47
Q

Requirements for Specific Performance

A

1) Satisfy general requirements for equitable remedies
2) show existence of K
3) all condition precedents = met
4) mutuality of remedy

48
Q

How to establish a valid K for specific performance?

A

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

49
Q

For specific performance, how do you tell if all the conditions have been fulfilled?

A

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

50
Q

Equity court will ignore strict compliance with a time of the essence clause when: ??

A

1) Loss to other party = small
2) undue hardship would occur with compliance
3) time of essence = waived
4) tardiness was de minims

51
Q

For specific performance, how to you tell if mutuality exists?

A

Remedies are mutual if

1) both parties can perform
2) P’s counter performance can be secured

52
Q

What does mutuality of remedies mean?

A

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.

53
Q

Specific Performance on Land K

A

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

54
Q

Equitable Conversion

A

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.

55
Q

Means to enforce specific performance in land K

A

1) Contempt: ordering seller to convey; buyer to pay)

2) Decree (transferring title by court order upon payment)

56
Q

What specific performance will be ordered when only the buyer and property are present?

A

Specific Performance by decree

57
Q

What specific performance will be rendered when only the buyer and seller are present (prop is not)

A

Contempt

58
Q

What specific performance will be rendered when seller and property are present but buyer isnt?

A

Specific performance = unlikely

59
Q

What is Rescission?

A

Remedy where voidable K is put to an end and the parties are treated as though it had never been made.

60
Q

What is reformation?

A

Remedy that treats a K as valid and changes a writing setting forth or implementing the agreement to conform to the originally intended agreement

61
Q

How to obtain rescission?

A

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.

62
Q

If an agreement is rescinded what relief is available?

A

Restitutionary relief is available to recover any value exchanged prior to rescission.

63
Q

How do you obtain reformation?

A

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.

64
Q

Declaratory Judgement

A

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)

65
Q

Constructive Trusts and Equitable Liens: when available and differences between the two?

A

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

66
Q

Constructive Trust Requirements

A

1) Title/ownership in D wrongly
2) unjust enrichment of D at P’s expense
3) inadequate legal remedy shown by D being insolvent

67
Q

Defense to Constructive Trusts

A

1) transfer to BFP without notice

68
Q

Subrogation

A

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

69
Q

What tort claims are generally not assignable for subrogation?

A

1) PI claims
2) Fraud
3) legal malpractice

70
Q

Ne Exeat

A

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

71
Q

Quia Timet

A

Purpose: quiet title to land
Objective: obtain marketable title

Types:

1) conventional (against a known individual)
2) against the world (no known individual)

72
Q

Interpleader

A

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.

73
Q

Defenses to Interpleader

A

1) adequate legal remedy/defense
2) collusion between parties
3) funds not paid in court

74
Q

Bill of Peace

A

Grounds:

1) confirm previously established right
2) avoid multiplicity of actions

Purpose: end litigation
Enforced by an injunction

75
Q

Mandamus

A

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

76
Q

Defenses to Mandamus

A

1) adequate legal remedy exists

2) act is discretionary (cant compel a discretionary act)

77
Q

Prohibition

A

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

78
Q

Quo Warranto

A

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

79
Q

What is an equitable defense?

A

It prevents a P form obtaining an equitable remedy that would otherwise be available

80
Q

Equitable Defenses

A

1) Unclean Hands
2) Impossibility and Hardship
3) Freedom of Speech
4) Time Bar: Laches

81
Q

Unclean Hands

A

An equitable defense

Available if the P is guilty of improper conduct proximately related to the same transaction for which P seeks equitable relief

82
Q

Impossibility and Hardship

A

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.

83
Q

Freedom of Speech

A

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.

84
Q

Time Bar: Laches

A

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

2014 Ga Bar (11 decks)

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