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GA Bar Prep > Damages/Equity/Non-Monetary Remedies > Flashcards

Damages/Equity/Non-Monetary Remedies Flashcards

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1
Q

Measure of tort damages:

A

the amount necessary to keep/make P whole.

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2
Q

Public policy: General purpose of tort damages under GA law:

A

Compensation.

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3
Q

In K cases _____ damages are ordinarily not recoverable unless allowed by statute or by the K itself.

A

consequential

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4
Q

Compensatory damages contrast with:

A

punitive damages

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5
Q

General damages contrast with:

A

special damages

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6
Q

Liquidated damages contrast with:

A

unliquidated damages

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7
Q

Three types of compensatory damages:

A
  1. General damages
  2. Special damages
  3. Nominal damages
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8
Q

Tort damages are ltd by the element of:

A

causation. This includes both cause in fact and proximate cause.

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9
Q

TORT: General damages are presumed to flow from what? What is the nature of the damages?

A

the commission of a tortious act. Considered to be non-economic and non-pecuniary in nature.

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10
Q

TORT: What is the measure of the amount of the award of general damages?

A

The enlightened conscience of an impartial jury.

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11
Q

TORTS: Pain and suffering can be:

A

mental, physical, or both.

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12
Q

Physical pain and suffering is inferred from:

A

personal injuries

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13
Q

When P’s entire injury is to P’s peace, happiness, feelings, _____, ______ , or ________ ________ by D must be proved.

A

Intentional, willful, or wanton misconduct by D must be proved.

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14
Q

Mental suffering from negligent conduct must involve:

A

an IMPACT resulting in physical injury or aggravation of prior mental illness

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15
Q

Special damages:

A

Loss of money or something that money can buy.

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16
Q

P claiming special damages must plead with:

A

particularity

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17
Q

“Walking man’s friend” statute: P may recover for the value of damaged auto, settle that claim w/o prejudice to:

A

his personal injury claim.

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18
Q

Punitive damages: Evidentiary standard:

A

Clear and convincing

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19
Q

Punitive damages: Public policy pointer:

A

for punishment and deterrence

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20
Q

Punitive damages: Pleading requirements:

A

Must ask for them in pleadings.

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21
Q

Punitive damages: Trial procedure:

A

“bifurcated trial” - 2 verdicts, 1 jury

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22
Q

Punitive damages: Recovery caps: Generally

A

$250k per case.

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23
Q

Punitive damages: Recovery caps: Exceptions: 2 cases

A

Products liability cases and
Specific intent to cause harm.
In these cases there are no limits.

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24
Q

Punitive damage awards must be in ratio to:

A

compensatory damages, which must usually be less than 10:1

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25
Q

Additional conditions for products liability cases: Extraction statute:

A

75% of award goes to the state.

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26
Q

Punitive damages against the sovereign:

A

Never available.

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27
Q

When entire injury is mental ___ recovery and no ______ _____.

A

One recovery – no punitive damages.

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28
Q

The duty to mitigate applies in tort and K. P’s duty is to:

A

lessen the damage by exercise of ordinary care.

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29
Q

Failure to mitigate does not apply to:

A

intentional torts such as fraud, nor does it apply to the failure to wear a seatbelt.

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30
Q

Lost future profits are recoverable in tort cases when:

A
  1. proximately caused, and

2. reasonably certain

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31
Q

Collateral source rule: (Evidentiary)

A

Excludes evidence of payments to P of collateral sources like health insurance, sick pay, and gifts.

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32
Q

Collateral source rule public policy pointer:

A

If there’s going to be a windfall – better for P to get it b/c it encourages people to buy insurance.

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33
Q

Note: collateral source rule is not applied if P:

A

opens the door, or in K cases in general.

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34
Q

Economic loss rule:

A

When a defective product injures only itself or a system that it is a component part of the P is limited to K remedies and cannot recover consequential damages.

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35
Q

Damages for loss of consortium: Includes:

A

loss to uninjured spouse – injured the relationship.

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36
Q

Damages for loss of consortium: What is the measure of the amount of the award of damages:

A

Enlightened conscience of an impartial jury.

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37
Q

Damages for loss of child’s consortium:

A

Ltd to value of services only.

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38
Q

Damages for loss of parent’s consortium:

A

Not recognized.

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39
Q

Three remedies for conversion:

A
  1. Give it back if intact.
  2. Market price
  3. Rent for the time the chattel was converted.
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40
Q

Conversion: Measure of market value:

A

Highest proved value b/t time of conversion and time of trial.

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41
Q

Measure of tort damages for fraud:

A

the benefit of the bargain.

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42
Q

Public policy for measure of tort damage for fraud:

A

deterrence

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43
Q

It addition to recovering the benefit of the bargain, because fraud is an intentional tort, it may justify other damages: Other available damages for fraud: 3

A
  1. Punitive
  2. Consequential
  3. General
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44
Q

Interference w/ economic opportunities: P may recover against D who interferes with PRESENT or PROSPECTIVE business or contractual relations. Measure of damages is:

A

loss of profits.

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45
Q

Interference w/ economic opportunities: P must show that interference was:

A

malicious, and therefore intentional and thus punitive damages may be recovered.

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46
Q

Interference w/ economic opportunities: P may only recover once: A single satisfaction bars P from:

A

recovering his K expectations from both the D AND the party who breached

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47
Q

Overriding purpose of K damages:

A

(Expectation damages) to put the wronged party back in position as if bargain had never been created.

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48
Q

K: General measure of damages are limited to those arising:

A

directly from the breach of K and that were w/i the contemplation of the parties at the time the K was made.

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49
Q

Quantum Meruit: For implied Ks:

A

When goods/materials have been furnished by one to another or services have been rendered the law implies a promise to pay the reasonable value thereof.

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50
Q

Quantum meruit measure of damages is:

A

the reasonable value to the recipient.

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51
Q

When K is made fraudulently the injured party upon discovery may do one of two things:

A
  1. Affirm K and sue for breach, OR

2. Rescind and sue for fraud.

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52
Q

Three steps for equity and non-monetary remedy questions:

A
  1. Are gen. requirements for equitable relief satisfied?
  2. Are specific req’ts for particular equitable remedy you seek satisfied?
  3. Are there equitable defenses that would prevent otherwise equitable relief?
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53
Q

Two general requirements for equitable relief: 2

A
  1. Legal remedy is inadequate

2. ER must be feasible.

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54
Q

Commonly used equitable remedies: 3

A
  1. Injunction
  2. Specific performance
  3. Recession and reformation
55
Q

Other equitable remedies: 7

CQ Binds

A

Constructive trust/equitable lien
Quia timet

Bill of peace
Interpleader
Ne exeat
Declaratory judgment
Subrogation
56
Q

Extraordinary remedies: 3

A
  1. Mandamus
  2. Prohibition
  3. Quo warranto
57
Q

Equitable defenses that prevent otherwise available relief? (4)

A
  1. Unclean hands
  2. Time bar (Laches/SOL)
  3. Impossibility or hardship
  4. Freedom of speech/constitutional issues.
58
Q

Legal remedies are inadequate when money damages would not make P whole: Examples 5

A
  1. Subject matter unique
  2. Speculative or uncertain damages
  3. Many actions (suits) might be necessary
  4. D is insolvent
  5. Irreparable harm
59
Q

Equitable remedy must be feasible. To be feasible one of two things must be present in the forum state:

A
  1. D himself OR

2. Property subject to jurisdiction

60
Q

Equity might decline relief in cases involving: (4)

A
  1. Subject matter applicable to taste.
  2. Constant supervision
  3. Compelling the rendition of personal services
  4. Compelling performance in another jurisdiction
61
Q

Jurisdictions that award non-monetary remedies:

A

Federal: District cts

GA Cts: Superior cts.

62
Q

Right to a jury trial? General rule

A

No.

63
Q

A jury MAY determine equitable issues IF: 3

A
  1. Statute authorizes
  2. Common facts involving claim for money damages
  3. Single claim involving legal and equitable issues.
64
Q

Torts where injunctions are normally available: 4

A
  1. Trespass
  2. Conversion
  3. Intrusion on seclusion
  4. Misappropriation of P’s likeness
65
Q

Torts where injunctions are SOMETIMES available: 3

A
  1. Elimination of a nuisance
  2. Prevention of WASTE
  3. Tortious interference; unless D’s conduct is privileged.
66
Q

Torts where injunctions are normally NOT available: 3

A
  1. Defamation
  2. False light
  3. Public disclosure of embarrassing facts
67
Q

Equity will not enjoing pending criminal proceedings. Generally the right to ______ is considered as an adequate legal remedy.

A

appeal

68
Q

Restrictive covenants: Allowed: An employee may agree to refrain, for a stated period of time after the employment ends, from certain activities such as: 2

A
  1. Soliciting business from employers customers

2. Engaging in competitive activities against employer

69
Q

Confidentiality agreements may be:

A

unlimited.

70
Q

Restrictive covenants for a time period of _____ are considered presumptively reasonable.

A

2 years

71
Q

In the case of a restrictive covenant for the sale of a business a period of ______ is presumptively reasonable.

A

5 years

72
Q

Restrictive covenant must also be reasonable concerning:

A

the geographic territory.

73
Q

Geographic territory involved is generally limited to those areas in which:

A

the employer does business during the employment relationship. Violatons may be prevented by an injunction.

74
Q

Blue penciling is when:

A

Cts strike overbroad agreements - limiting the offending provision to something that the ct. considers reasonable.

75
Q

Restrictive covenants do not apply to:

A

attorneys to the extent they restrict the right of clients to choose who they want to represent them.

76
Q

Two kinds of interlocutory injunctive relief available to preserve the status quo:

A
  1. Temp restraining order (TRO)

2. Interlocutory injunction

77
Q

Interlocutory injunction only granted after:

A

hearing both sides. Injunction bond is normally required.

78
Q

TRO can be obtained w/o hearing on both sides but is effective only for:

A

a short period of time (30 days)

79
Q

To obtain a TRO petitioner must:

A

show such and immediacy of injury that will justify proceeding w/o hearing.

80
Q

To obtain interlocutory injunctive relief petitioner must show:

A
  1. Irreparable injury

2. Likelihood of success on the merits

81
Q

To obtain specific performance P must show 6 things:

No Anagram.

A
  1. Existence of K
  2. P has or can perform immediately
  3. Legal remedy is inadequate
  4. Enforcement is feasible
  5. Mutuality of remedy
  6. D has no defenses
82
Q

Mutuality of remedy: One party of K is not entitled to:

A

specific performance unless other parties would also be entitled to SP

83
Q

Pragmatic restatement approach to mutuality of remedy requires: 2 things

A
  1. Both parties can perform and

2. P counter performance can be secured.

84
Q

SP of a land K can be achieved by: 2 ways

A
  1. Means of contempt (ordering seller to pay and buyer to convey) or,
  2. Means of decree (transferring title by court order upon payment.)
85
Q

Land K: If only buyer and property are present then remedy is:

A

Through decree under quasi-in rem ct orders title transferred.

86
Q

Land K: Only buyer and seller are present then remedy is:

A

enforcement of K through contempt - ordering seller to pay and buyer to convey.

87
Q

Land K: Only seller and property are present the remedy is:

A

not available - the seller needs to file in a different court.

88
Q

Rescission:

A

remedy by which a voidable K is put to an end and the parties are treated as if it had never been made.

89
Q

Reformation:

A

treats K as valid and changes the writing to reflect the originally intended agreement.

90
Q

Obtaining RECISSION: Equity will rescind a K if at the time it was entered into there was: One of three things. MUO

A
  1. Mutual mistake as to a substantive matter.
  2. A unilateral mistake that is either known to the other party or would create hardship to the mistaken party.
  3. Other grounds like duress, undue influence, lack of capacity, or failure of consideration
91
Q

If an agreement is rescinded restitutionary relief is

A

generally available to recover any value exchanged prior to rescission.

92
Q

Obtaining REFORMATION: Reformation requires that there is a valid K. The writings will be reformed if there was: One of three things MUN

A
  1. Mutual mistake
  2. Unilateral mistake b/c of fraud
  3. Negligent misrepresentation by one of the K parties.
93
Q

Reformation: Negligence and SOF are:

A

Non-defenses. Parol evidence may be used to show the agreement.

94
Q

Declaratory Judgment: Basis for jurisdiction:

A

Actual controversy b/t parties as to unsettled rights, obligations, or legal relation and the dispute is of such a nature it can be terminated by the entry of a declaratory judgment.

95
Q

Declaratory Judgment: Relief available: GA Superior Cts have the power to declare: (2)

A
  1. Rights or obligations

2. Nature of legal relationship

96
Q

Declaratory Judgment: No requirement for petitioner to show:

A

present monetary harm.

97
Q

Constructive trusts and equitable liens are available when:

A

property of P has been misappropriated by D.

98
Q

In a constructive trust ______ to P’s property is taken

A

title.

99
Q

An equitable lien merely requires the property to be:

A

appropriated.

100
Q

Three requirements for a constructive trust:

A
  1. Title/ownership in D
  2. Unjust enrichment
  3. Inadequacy of legal remedy
101
Q

The owner may place a _________ on the proceeds of any wrongfully acquired property.

A

constructive trust

102
Q

Equitable liens are granted when:

A

D has merely appropriated the property – no title has passed.

103
Q

Defenses to a constructive trust:

A
  1. Transfer to BFP w/o notice.
104
Q

Subrogation:

A

Involves the substitution of a third party as P in place of the actual victim.

105
Q

Three circumstances where subrogation arises:

A
  1. Where P paid for Victim’s loss.
  2. P paid obligation of victim (repair)
  3. P discharged the lien
106
Q

Subrogation is only available w/ respect to:

A

property rights.

107
Q

Three types of tort claims that are generally not assignable (so no subrogation available):

A
  1. Personal injury claim
  2. Fraud
  3. Legal malpractice.
108
Q

Ne exeat:

A

Type of civil arrest warrant that is issued to restrain person or property from leaving the state.

109
Q

D may discharge the restraint of ne exeat by :

A

posting a bond.

110
Q

Purpose of quia timet:

A

to quiet title to land.

111
Q

Two types of quia timet actions:

A
  1. Conventional - specific person

2. Against all the world (no specific person)

112
Q

Object of quia timet:

A

Marketable title

113
Q

Two types of interpleader:

A
  1. Statutory (rule 22)

2. Equitable.

114
Q

Statutory interpleader may be brought in:

A

any court of record.

115
Q

Equitable interpleader must be brought in:

A

court of equity.

116
Q

Defenses to interpleader:

A
  1. Adequate remedy at law.
  2. Collusion b/t P and party.
  3. Funds have not been paid at ct.
117
Q

Interpleader hypo: H dies leaving life insurance policy payable to “his wife”. Both C and A claim they are legally married to H at time of death. Life insurance Co. may file an interpleader action against C and A. What is the effect of this action?

A

To for C and A to litigate amongst themselves ensuring that Life Insurance Co only has to pay out once.

118
Q

Extraordinary writs:

A

Only available against governmental officials.

119
Q

Purpose of mandamus:

A

To compel official duty.

120
Q

Defenses to mandamus action:

A
  1. Remedy at law

2. Discretionary duty.

121
Q

Who has standing to bring mandamus? (2)

A
  1. Persons who claim special interest

2. Where an individual suffers monetary loss.

122
Q

The counterpart to mandamus is:

A

a writ of prohibition.

123
Q

Purpose of prohibition:

A

to restrain illegal jurisdiction.

124
Q

Prohibition is generally used against:

A

lower courts.

125
Q

Prohibition may also lie against ______ and ______ when they are acting in a judicial or quasi-judicial capacity.

A

executive and military officers

126
Q

Exception: Prohibition will not lie against:

A

the governor

127
Q

The writ of quo warranto addresses itself to:

A

the right of a person to hold public office

128
Q

An action for quo warranto may be brought by: (2)

A
  1. Person who has the right to occupy public office

2. Citizens of a jurisdiction affected.

129
Q

Like prohibition, quo warranto will lie to all:

A

civil or military officers – except the governor.

130
Q

Laches is a defense available when:

A

P has unreasonably delayed in bringing an action AND that delay is prejudicial to D.

131
Q

An injunction may be granted to eliminate a nuisance provided that it is ____________ but NOT if it is __________.

A

provided it is a continuing nuisance but NOT if it is a completed nuisance.

132
Q

An injunction may be granted to prevent waste provided that: one of two things:

A
  1. that waste is destructive (causes permanent harm) or
  2. for permissive waste (failing to keep up the property).
    Generally won’t be granted for ameliorative waste.
133
Q

Equitable Lien:

A

Charge on property to prevent unjust enrichment.

134
Q

After equitable lien is imposed the lien can be:

A

foreclosed and property sold to satisfy P’s claim.

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