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Damages and Remedies > Damages and Remedies > Flashcards

Damages and Remedies Flashcards

1
Q

What is the goal for tort damages?

A

Make the P whole

Compensation

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2
Q

Three types of COMPENSATORY damages

A
  1. general damages
  2. special damages
  3. nominal damages
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3
Q

What are general damages?

A

Flow from the commission of the tort itself
Noneconomic
- physical pain and suffering
- mental pain and suffering

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4
Q

What is the measure of general damages?

A

The enlightened conscience of a fair and impartial jury

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5
Q

How can P prove pain and suffering?

A

subjective: P’s own testimony
objective: expert testifies

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6
Q

Negligent infliction of emotional distress: what must P prove?

A

Some physical manifestation

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7
Q

Special damages

A

Loss of money or something money can buy

- lost salary, property damage, medical bills

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8
Q

To get special damages, what must P do?

A

Plead with particularity

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9
Q

If P’s animal is killed, what are the damages?

What if the conduct was intentional and directed at P?

A

Chattel value only

P may be able to recover mental pain and suffering damages (if intentional and directed at P)

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10
Q

What happens in GA if you get in a car accident? Must you bring everything in one lawsuit?

A

Can bring 2 suits: (1) property damage and (2) personal injuries.
*Exception to claim preclusion

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11
Q

What is the evidentiary standard for punitive damages?

A

Clear and convincing evidence that D acted with such willful misconduct, malice, fraud, or wantonness or entire want of care as to raise a presumption of CONSCIOUS INDIFFERENCE to the consequences.

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12
Q

What if P wants punitive damages?

A

P must plead, ask for punitive damages.

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13
Q

In GA, what is the maximum P can get for punitive damages?

A

Capped at $250,000 per claim

subject to exceptions

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14
Q

In GA, what are the exceptions to the punitive damages cap?

A
  1. products liability cases

2. specific intent

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15
Q

What does it mean when there are no caps for punitive damages with specific intent?

A

It means that any case where D was voluntarily intoxicated, there will be NO cap on punitive damages.

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16
Q

If there is a punitive damages award in a products liability case, who gets the proceeds?

A

GA gets 75% of the award. Only first P can recover punitive damages against D.

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17
Q

When can D’s assets be considered when determining damages?

A

ONLY punitive damages

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18
Q

Are punitive damages available against the sovereign?

A

NO

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19
Q

What if you are suing for IIED? (or whole injury is mental): can you get punitive damages?

A

No recovery for punitive damages

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20
Q

Restrictions on damages: special rules

A
  1. must mitigate damages

2. collateral source rule

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21
Q

Duty to mitigate: what types of cases?

A

Tort AND contract

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22
Q

Does failure to wear a seatbelt constitute a failure to mitigate?

A

NO. Failure to wear a seatbelt is not admissible to lessen recovery.

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23
Q

When are lost profits recoverable?

A

When they are:

  1. reasonably certain
  2. proximately caused
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24
Q

Collateral source rule: what is it? Does GA follow it?

A

Rule of evidence that EXCLUDES evidence of payment to P from third parties (insurance proceeds, help from friends and family)

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25
Q

What are you claiming when you claim loss of consortium?

A

Services
Society
Companionship
Affection

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26
Q

When you claim loss of consortium?

A

Only when both people are STILL living

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27
Q

Can a child recover for parental consortium?

A

Not in GA

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28
Q

Conversion remedies: what choices does P have?

A

P can ELECT:

  1. return of the chattel
  2. market price
  3. rent for each day it was gone + return of chattel
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29
Q

What is the measure of the chattel for conversion in GA?

A

Highest proved value b/w time of conversion and time of trial

MBE: value determined when chattel was converted

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30
Q

What damages may be available for fraud?

A
  1. benefit of the bargain (whatever D profited we take away)
  2. punitive damages
  3. attorney’s fees
  4. other consequential damages
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31
Q

What are damages limited to in contract cases?

A
  • damages arising DIRECTLY from the breach of contract AND

- these damages were within the contemplation of the parties

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32
Q

What is quantum meruit?

A

Use when there is an implied contract

Person who performed services gets the value of the goods or services to the recipient

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33
Q

In GA, does a landlord have a duty to re-rent?

A

No. But if someone wants to rent, you must rent it if reasonable.

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34
Q

Are consequential damages recoverable in GA?

A

Not recoverable unless they can be traced solely to the breach.

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35
Q

When are punitive damages allowed in contract cases?

A

Never except a breach of a promise to marry

*can get punitive damages for fraud if P elects to sue under a tort theory

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36
Q

When can you get equitable remedies? (Steps)

A
  1. legal remedy must be inadequate

2. the equitable relief must be feasible

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37
Q

Equitable defenses: types

A
  1. unclean hands
  2. time barred (laches)
  3. impossibility or hardship
  4. freedom of speech or other constitutional issues
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38
Q

When will a legal remedy be inadequate? Possibilities are:

A
  1. subject matter is unique
  2. money damages would be speculative or uncertain
  3. P would have to bring multiple or successive lawsuits
  4. D is insolvent
  5. harm is irreparable
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39
Q

What makes an equitable remedy feasible?

A
  1. D is present in the forum state OR
  2. property subject to the litigation is present in the forum state

AND

ability for equity court to determine or supervise compliance by D

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40
Q

How does equity normally enforce its decrees?

A

By holding the non-complying party in contempt

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41
Q

When might equity decline injunctive relief?

A
  1. dispute involves subjective application of taste
  2. remedy would require constant or continual supervision
  3. equity will not compel the rendition of personal services
  4. equity will not compel performance in different jurisdictions
42
Q

What court has jurisdiction to award equitable relief in GA?

A

Superior court

43
Q

Can you get a jury trial when you are claiming equitable relief?

A

No UNLESS

  1. statute authorizes jury
  2. common facts involving a claim for money and equity
  3. single claim involving both legal and equitable issues
44
Q

What is an example of when P should file in equity so that P can avoid having to file consecutive lawsuits?

A

When D is trying to obtain adverse possession or a prescriptive easement. (money damages inadequate and irreparable harm would result to P)

45
Q

What if D breaches a personal services contract and tries to go perform somewhere else?

A

Equity can prohibit rendition of personal services, but can’t compel.

Ex: Lady refuses to perform for City Opera and then tries to go perform for City Opera’s competitor.

46
Q

2 types of injunctions

A
  1. preventive

2. corrective

47
Q

When are injunctions normally available: what types of torts?

A

Property and privacy invasions (trespass, conversion, intrusion on seclusion, misappropriation of P’s likeness)

48
Q

When are injunctions sometimes available?

A

Nuisance (if ongoing)
To prevent waste (destructive or permissive)
Tortious business interference

49
Q

When are injunctions normally not available?

A

Threatened defamation
False light
Public disclosure of private facts

***** triggers first amendment and prior restraint issues

50
Q

Restrictive covenant not to compete (what does an employee promise not to do?)

A
  1. won’t solicit customers

2. won’t compete

51
Q

What is a presumptively reasonable time period for a non-compete? What about with the sale of a business?

A

2 years

Sale of business: 5 years

52
Q

Restrictive covenants must be reasonable in? (2 things)

A

time AND

geographic scope

53
Q

What if you need an injunction before a case can be decided on the merits?

A
  1. temporary restraining order

2. interlocutory injunction

54
Q

Why get an interlocutory/preliminary injunction?

A

Preserves the status quo until the court can determine the controversy presented in litigation.

55
Q

What do you have to show to get a TRO? How is it different from other preliminary injunctions?

A

A TRO can be obtained without hearing both sides BUT the max length of time it is effective is 30 days

Must show:
1. immediacy of injury that will justify proceeding without a hearing

56
Q

Permanent Injunction

A

Elements

  1. injunction would PREVENT tortious conduct
  2. legal remedy is inadequate
  3. a property right OR protectable right is involved
  4. enforcement would be feasibly, practicable, and effective to vindicate P’s rights
  5. hardship to the D or public does not greatly outweigh the benefit to the P
  6. no defenses available
57
Q

Interlocutory injunction: when will it be granted and how long does it remain in effect?

A

Only granted after hearing both sides
Injunction bond required
Will remain in effect until the decision on the merits

58
Q

Interlocutory injunction (also called preliminary injunction) elements

A
  1. irreparable injury if prelim injunction not granted

2. P must show that it is probable that she will succeed on the merits of her claim

59
Q

Who does an injunction bind?

A
  • parties
  • parties’ agents and servants who receive actual notice
  • third parties acting in concert with the parties after receiving notice
60
Q

What is a TRO?

A

Emergency orders imposed until a regular adversary type hearing may be held (file in superior court)

61
Q

When can a TRO be granted ex parte?

A

No notice must be given to party to be restrained IF the moving party makes a strong showing why notice should not be required.

62
Q

What must a party seeking a TRO or interlocutory injunction post?

A

Bond sufficient to reimburse the enjoined party if the injunction is later found to be improperly ordered

63
Q

Specific performance: what happens when ordered?

A

Party to the contract is ordered to perform according to the contract’s terms

64
Q

Specific performance elements

A
  1. existence of a contract
  2. P has fulfilled all conditions precedent (P has done everything he’s supposed to do)
  3. mutuality of remedy
65
Q

Specific performance: how does the party show a contract exists?

A
  1. certainty of terms (identity of parties, time and manner of payment, subject matter of contract)
  2. existence of consideration
66
Q

When will a time is of the essence clause NOT be enforced?

A
  1. loss to the other party is small
  2. undue hardship
  3. waiver
  4. tardiness is de minimis
67
Q

When will a court award specific performance even though the seller cannot convey marketable title?

A
  1. deficiency is minor: court can grant specific performance and a reasonable reduction in purchase price
  2. deficiency is severable and a reasonable reduction in purchase price
68
Q

What does mutuality of remedy mean?

A

It means that one party is NOT entitled to specific performance unless the other party would be entitled to have the contract specifically enforced

*could come up if one party is a minor

69
Q

Equitable conversion

A

Buyer is considered the owner of the property upon executing the contract for sale

70
Q

How can you enforce specific performance of land?

A
  1. contempt

2. means of decree: court can transfer title

71
Q

Equitable remedies (3 main types)

A
  1. injunction
  2. specific performance
  3. rescission and reformation
72
Q

What is rescission?

A

treats parties as though the contract had never been made (terminates the contract)

73
Q

What is reformation?

A

Treats the contract as valid and changes it

74
Q

When will equity rescind a contract?

A
  1. mutual mistake as to an essential matter
  2. unilateral mistake ONLY if known to the other party
  3. duress, undue influence, lack of capacity, fraud
75
Q

When will equity reform a contract?

A
  1. mutual mistake as a collateral matter
  2. unilateral mistake b/c of fraud if both parties should have been aware of it
  3. negligent misrepresentation
76
Q

Declaratory judgment: when is it used?

A

When there is an actual controversy involving unsettled rights, obligations, or relationships.

77
Q

What must petitioner of a declaratory judgment show?

A

Possibility of future harm (BUT no need to show present monetary harm)

78
Q

What if a jury trial decides a declaratory judgment: how do they render their decision?

A

In the form of interrogatory answers

79
Q

When is a constructive trust an appropriate remedy?

A

Title to P’s property has been taken fraudulently.

80
Q

When is an equitable lien an appropriate remedy?

A

When P’s property has been appropriated (but title hasn’t passed)

81
Q

Elements to get a constructive trust

A
  1. title in the D
  2. to allow d to keep property would result in unjust enrichment at P’s expense
  3. legal remedy is inadequate
82
Q

What is D’s defense to a constructive trust?

A

D transferred property to a bona fide purchaser for value without notice

83
Q

What is subrogation?

A

When a third party is substituted as plaintiff in place of the victim because:
1. third party paid the loss to the victim
OR
2. third party paid obligation
3. plaintiff discharged a lien

84
Q

When is subrogation available?

A

Only for property claims (NOT personal injury)

Ex: When insurance pays for repair for damage to victim’s truck, insurance can go after the tortfeasor

85
Q

What is a writ of ne exeat?

A

Type of civil arrest warrant that restrains a person or property from leaving a jurisdiction

86
Q

Quia timet action

A

Quiet title action

Two types:
conventional: dispute b/w 2 parties
against the world

87
Q

What is the purpose of a quia timet action?

A

To gain marketable title

88
Q

Interpleader: what is it?

A

Action brought by the holder of a debt or property who is exposed to multiple liability may file to determine who is entitled

89
Q

Defenses to interpleader: when will the court not allowed interpleader?

A
  1. collusion by the person bringing the action and some claimants
  2. funds weren’t paid into court
  3. adequate remedy at law
90
Q

Who are extraordinary writs available against?

A

Government officials

91
Q

What is a mandamus action?

A

Used to compel performance by an official to DO HIS MINISTERIAL DUTY

  • used to require official to do what the law requires him
  • not used for judicial acts
  • use when there is no adequate remedy at law
92
Q

When is a gov’t official’s defense to mandamus?

A
  1. adequate remedy at law
    OR
  2. official’s act is discretionary
93
Q

What is a writ of prohibition?

A

(opposite of mandamus)

Used to restrain illegal exercise of jurisdiction by government officials (usually to restrain a lower court from exercising power)

94
Q

What is a writ of quo warranto?

A

Used to challenge a person’s right to hold a public office (can’t challenge governor)

95
Q

What does an equitable defense do if successful?

A

Prevents a P from obtaining equitable remedy when the remedy is otherwise available.

96
Q

Unclean hands

A

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

97
Q

Impossibility or hardship defense

A

Court won’t order an equitable remedy if it is not w/in the capacity of D to do it

98
Q

Freedom of speech defense

A

Equity won’t intervene if constitutional rights are threatened

99
Q

Laches

A

P has delayed in bringing suit and the delay is:

  1. unreasonable based on when P obtained knowledge of the wrong OR
  2. prejudicial
100
Q

wrongful death: what factors to consider when determining value of a life

A
  • age when the person died
  • health
  • life expectancy
  • income at the time of death
101
Q

Where does recovery from a survival action go?

A
  • it goes to the decedent’s estate to be distributed under the residuary clause of the will

IF the testator died intestate or without a valid residuary clause: use intestate succession

102
Q

Where does recovery in a wrongful death action go?

A

Recovery is split equally among the surviving spouse and the children

IF there are more than 2 children: spouse gets at least 1/3 under intestacy statute

Damages and Remedies (1 decks)

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