Equitable Remedies Flashcards
What are the 4 types of injunctions?
- Negative: forbids one from doing something
- Mandatory: requires affirmative action
- Permanent: granted at end of lawsuit as relief to victorious P
- Preliminary: granted at start of lawsuit to freeze status-quo (must show likelihood of success on merits and irreparable injury)
What four things do you have to satisfy to get an injunction?
In addition to proving guilt of tort:
- No adequate remedy at law (money insufficient)
- D violated property interest or other protectable right
- Injunction is enforceable
- Balance hardships of P and D
What are the 3 defenses to injunctions?
- Unclean hands
- Laches (prejudicial delay)
- 1st Amend. (when speech affected)
What is NY’s position in relation to the defences?
They are minority doctrines and abolished in NY.
What is implied assumption of risk?
Signals a reduced duty of care. Special duty standard. Think in sports.
What is comparative negligence?
- D offers evidence P failed to exercise proper care for own safety
- Jury instructed to assign parties percentages representing degree of fault
- MS/NY: P recovers according to numbers
- Minority: P fault >50% absolute bar to recovery
What are the three strict liability causes of action?
Liability for injury caused by 1) animals 2) abnormally dangerous activities 3) Product liability.
What is the liability for injury caused by a domesticated animal?
No strict liability unless has vicious propensities
What is the liability for injury caused by wild animals?
Strict liability ALWAYS for owner/keeper (ie, renders irrelevant any safety precautions)
What is the liability for abnormally dangerous activities?
Strict liability
Defined:
- Activity creates foreseeable risk of serious harm even when reasonable care exercised
- Activity not common in community
What are examples of abnormally dangerous activities?
Crop dusting, use of explosives, demolition company blows up buildings, handling of dangerous materials, vaccine for ebola.
What are the 4 elements of product liability?
- D is merchant
- Product defect (manufacturing/design)
- Product unaltered since left D’s hands (presumption of no alteration if in ordinary channels of distribution)
- P makes foreseeable use at time of injury
So what is a design defect in a defective product?
- Product could have been built differently in hypothetical, alternative design AND
(a) that alternative safer than one actually marketed
(b) that alternative economically feasible
(c) that alternative practical - Instructions and warnings
(a) if product has residual risks that cannot be designed out, and not obvious to users, defective to sell without warning
(b) cannot paper over design defect (must be undesignable around)
What is a defence to product liability?
Comparative responsibility: P stupidity can reduce recovery proportionally
