Essay- ORDER OF PROGRESSION IN ANALYZING TORT PROBLEMS

Question 1

What do you discuss in progression for a tort propblem?

Answer 1

1. Damages (actual, nominal, punitive)
2. Restitution (Money, Replevin, Ejectment)
3. Equitable remedies (constructive trusts, equitable liens)
4. Injuctions (Temp restraining order, Preliminary injuction, permanent injuction)

Question 2

What kind of damages are there in tort?

Answer 2

1. Actual damages.
2. Nominal damages
3. Punitive damages

Question 3

What are damages in tort?

Answer 3

Money for Injury to the plaintiff arising out of the tort

Question 4

What are actual damages?

Answer 4

Compensatory damages that seek to put plaintiff back where he was before the tort. Actual damages in tort look to the past.

Question 5

What kind of actual damages are there?

Answer 5

1. General Damages

2. Special Damages

Question 6

What are general damages?

Answer 6

Compensates for foreseeable losses (e.g. pain &

suffering)

Question 7

What are special damages?

Answer 7

Compensates for losses not necessarily foreseeable (lost wages) & must be specially pleaded

Question 8

What are Nominal damages?

Answer 8

A small, or nominal, amount of money available when no actual damages can be proved

Question 9

What are punitive damages?

Answer 9

Punitive damages punish and deter. They do not compensate for actual injury suffered by the plaintiff.

Question 10

Does there need to be proportionality for punitive damages? How much?

Answer 10

Yes, a single digit multipler

Question 11

What is restitution? Does there need to be any injury to the P?

Answer 11

Benefit unjustly retained by the defendant. There does not need to be any injury to plaintiff.

Question 12

What are the legal remedies for restitution?

Answer 12

1. Money
2. Repevin
3. Ejectment

Question 13

When do you give money as restitution?

Answer 13

When there is an unjust money benefit to the defendant

Question 14

What is replevin?

Answer 14

Recovery of specific personal property

Question 15

What are the equitable remedies in tort?

Answer 15

1. Constructive trust

2. Equitable Lien

Question 16

What is a constructive trust?

Answer 16

Obligation to convey specific personal property to the plaintiff

Question 17

What are the elements of a constructive trust?

Answer 17

a) Defendant (“D”) has title to property,
b) Acquisition of title was due to defendant’s wrongdoing,
c) D’s retention of property would result in unjust enrichment, and
d) Inadequate legal remedy (remember- D’s insolvency will suffice).

Question 18

Can you get a constructive trust when n defendant has improved other property with plaintiff’s property?.

Answer 18

No

Question 19

Is tracing allowed?

Answer 19

Yes

Question 20

What is an Equitable lien?

Answer 20

Security interest in specific property

Question 21

What are the elements of an equitable lien?

Answer 21

a) Defendant has title,
b) Wrongful acquisition of the property can be traced
to defendant, and
c) Defendant’s retention would result in unjust enrichment.

Question 22

How much can a equitable lien be enforced for?

Answer 22

Can be enforced only up to amount of Plaintiff’s claim (the enhanced value of the property is not recoverable)

Question 23

When is a equitable lien used?

Answer 23

Used when property acquired at plaintiff’s expense is worth as much as, or less than plaintiff’s claim.

Question 24

When is the equitable lien remedy cut off?

Answer 24

This remedy is cut off by transfer to a BFP.