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Remedies > Introduction/Compensatory Damages > Flashcards

Introduction/Compensatory Damages Flashcards

1
Q

What is a remedy?

A

What a court can do for a litigant.

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2
Q

What are usually compensatory remedies?

A

Damages.

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3
Q

What do punitive remedies do?

A

Punish and Deter

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4
Q

What are usually classified as reparative remedies?

A

Injunctions

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5
Q

What are preventative remedies?

A

Injunctions to stop someone or something from doing something.

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6
Q

What is a declaratory remedy?

A

A declaration by the court of some kind.

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7
Q

What are ancillary remedies?

A

Remedies to enforce. Usually how a damage or an injunction is enforced, can also be attorneys’ fees.

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8
Q

What is a substitution remedy ?

A

When money will substitute performance.

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9
Q

What is a specific remedy?

A

A remedy that typically occurs before the harm (injunction probably).

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10
Q

What are legal remedies?

A

Damages.

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11
Q

What are equitable remedies?

A

Injunctions.

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12
Q

When can someone get an injunction?

A

When damages are inadequate.

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13
Q

What is the goal of compensatory damages?

A

The goal is to reset the plaintiff to her rightful position, or as close as possible.

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14
Q

What is the rule of remedies for property damages?

A

“The Lesser of—” RULE
- Fair Market value of the property
OR
- Replacement costs.

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15
Q

What is true of deprecation?

A

Things have less depreciation if they are not new property.

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16
Q

How to know which “Lesser of—” to use?

A

Use whatever is less money, that is what will be awarded as a remedy.

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17
Q

Is pain and suffering on top of property damages normal?

A

It is not normal.

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18
Q

Why use the “Lesser of—”?

A

There is a concern with over-compensating plaintiffs.

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19
Q

The “Lesser of—” rule is much ___________ to institute with older properties.

A

HARDER

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20
Q

Does someone being put in their rightful position end up with more or less money than what was damaged?

A

They shouldn’t end up with more or less, it should be an amount equal to the damage.

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21
Q

What is the rule on remedies for special property?

A

“The Lesser of—” RULE
- Fair Market value (FMV) of the property
OR
- Repair costs

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22
Q

What are some types of special property?

A

Hospitals
Churches

Things that do not have a lot of value (people not looking to purchase)

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23
Q

What is someone’s Rightful Position?

A

The position a person would have been in if there was no breach or If the contract was never made.

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24
Q

What is expectancy interest?

(Present in Contract Claims)

A

Position plaintiff would have occupied if the defendant had performed (meaning there was no breach).

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25
Q

What is reliance interest?

(Present in Contract Claims)

A

Position plaintiff would have occupied if the defendant never made a deal.

This would be an out of pocket loss or damage.

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26
Q

When to use expectancy interest or reliance interest in TORT LAW?

A

Fraudulent misrepresentation: use the benefit of the bargain (expectancy).

Negligent misrepresentation : use the out of pocket loss or damage (reliance).

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27
Q

What are consequential damages?

A

Damages which flow from the consequence of the breach.

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28
Q

Determining consequential damages is ______________.

A

Speculative.

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29
Q

Are consequential damages recoverable?

A

They are recoverable (awarded) for things that would be in the parties’ reasonable contemplation at the time the contract was validated.

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30
Q

Consequential damages simplified:

A

Parties must know the consequence of the breach.

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31
Q

What are General Damages?

A

Damages which arise naturally from the contract.

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32
Q

Examples of General Damages: (the interests)

A

Expectation interest
Reliance interest

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33
Q

What are special damages?

A

Damages that are the probable result of the breach

Consequential Damages.

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34
Q

Which are more important/real between general or special damages?

A

General are legit, special are less legit and the importance of distinguishing these damages are decreased.

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35
Q

$50 in primary contract damage is [general/specific]?

A

General

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36
Q

Lost sales or profits from 5 days being closed are [general/specific]?

A

Specific (example of consequential damages).

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37
Q

If the breach is failure to pay money, then there are ___ _____________ ___________.

A

no consequential damages

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38
Q

Exception to no consequential damages for breach based of failure to pay money:

A

If an insurance company breaches in this way, consequential damages are added on.

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39
Q

Where do main (general) damages come from?

A

The wrong, or the breach.

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40
Q

Where do other (special) damages come from?

A

The consequences of the wrong or breach.

41
Q

Can contracts limit consequential damages?

A

Yes, exclusions may be added to limit consequential damages.

42
Q

Is interest a consequential damage?

A

Almost, but not really.

43
Q

What would awarding broad consequential damages be?

A

Really speculative.

44
Q

Limits on Damages: Contractual Exclusions of Compensatory (Consequential) Damages: Can either be____________ (2 things)

A

Either:
Exclusion the damages entirely
OR
Setting (liquidated) damages at a certain amount.

45
Q

Limits on Damages: Contractual Exclusions of Compensatory (Consequential) Damages: Concern with liquidated damages?

A

They are usually too much.

46
Q

Limits on Damages: Contractual Exclusions of Compensatory (Consequential) Damages: Why Exclude consequential damages?

A

They are too speculative and could be massive.

47
Q

Limits on Damages: Liquidating Damages: What does it do?

A

Sets predetermined damages in the contract, which means the right to claim other damages will be waived.

48
Q

Limits on Damages: Liquidating Damages: Concern?

A

Liquidated damages can be too high, and it might dissuade efficient breach.

49
Q

Limits on Damages: Liquidating Damages: Rule when renting a building?

A

Tenants still have to pay rent, sometimes double for any breach.

50
Q

Limits on Damages: Liquidating Damages: What are 4 approaches?

A

Disfavoring Penalties

The Shock Conscience Test

The Restatement of Contracts Test

Deference to Contracting Parties

51
Q

Limits on Damages: Liquidating Damages: 4 approaches: Disfavoring Penalties

A

Unlikely to enforce.

52
Q

Limits on Damages: Liquidating Damages: 4 approaches: The Shock Conscience Test?

A

Does the amount of liquidated damages shock the conscience when compared to the actual damages?

53
Q

Limits on Damages: Liquidating Damages: 4 approaches: Restatement of Contracts Test

A
  • Look at the amount of liquidated damages and see if it is a reasonable forecast of what damages might be.
  • Hard to do because damages are difficult to estimate.
54
Q

Limits on Damages: Liquidating Damages: 4 approaches: Deference to contracting parties

A

Enforce it because it was agreed upon in contract and we should enforce those contracts.

55
Q

Limits on Damages: Liquidating Damages: 4 approaches: Generally:

A

Compare the liquidated damages clause v. the amount of expected damages at the time of the contract to determine fairness/unconscionability (difficult task).

56
Q

How to determine lost wages (lost earning capacity)?

A

Look at average wages in that field and what washing made before the loss.

57
Q

How to determine medical expenses?

A

Look at medical bills.

58
Q

When are damages past or future?

Same test for lost wages and medical expenses.

A

Injury to trial is PAST.

Trial into the future is FUTURE.

59
Q

When does someones earning capacity start to suffer?

A

When the harm happened.

60
Q

Determining Lost Wages: Looking past paychecks: How to handle fringe benefits (past and future)

Regarding salary employees.

A

Past: Look at what they lost, inflation, potential raises. (take out the amount that was earned, if any)

Future: to speculative to determine.

61
Q

Determining Lost Wages: Looking past paychecks: Pretax or Post Tax:

A

Pretax: Amount being made without accounting for loss due to tax. (higher number usually, better for the plaintiff).

Post Tax: Reverse of above. (lower number and better for the defendant).

62
Q

Determining Lost Wages: Looking past paychecks: Race and Sex

A

(When kids are tortiously injured)

Crappy tables used (if judge allows)

63
Q

Determining Lost Wages: Looking past paychecks: Medical Expenses

A

Uses a crappy table as well.

Think about future medical expenses because your client may need surgery in 15 years and be SOL.

64
Q

Determining Lost Wages: Looking past paychecks: Medical Expenses: Collateral Source Rule:

A

plaintiff can recover damages for medical expenses even if expenses were paid by health insurance.

65
Q

Determining Lost Wages: Looking past paychecks: Medical Expenses: Collateral Source Rule: Issue?

A

Unfair because plaintiff still has to pay back insurance company due to the contract.

66
Q

Determining Lost Wages: Looking past paychecks: Medical Expenses: Collateral Source Rule: What now?

A

Someone states have eliminated the rule, with the plaintiff being able to recover all.

67
Q

Determining Lost Wages: Looking past paychecks: Medical Expenses: Issue with charged rates and what those are?

A

People have different rates bases on coverage.

Charged Rate (Highest and people without health insurance) [always seek this]

Private Insurance (Lower)

Medicare (Lower)

Insured plaintiff paying (Lowest)

68
Q

Determining Lost Wages: Looking past paychecks: Medical Expenses: Collateral Source Rule: Arkansas?

A

Arkansas has it.

Benefit to have insurance at a discounted rate.

69
Q

Determining Lost Wages: Looking past paychecks: Medical Expenses: Collateral Source Rule: When a state does not have it?

A

plaintiff can recover reasonable medical expenses

(Hard to determine)

70
Q

What are Noneconomic and Death Damages?

A

Anything without a market measure.

71
Q

Examples of noneconomic and death damages?

A

Pain and Suffering
Emotional/Mental Distress
Loss of Consortium
Loss of Enjoyment

72
Q

What are the 2 ways to measure noneconomic and death damages?

A

1) Per Diem (numbers add for rest of life per day, suggestion to the jury, assumes P&S is constant.

2) Golden Rule (asking the jury what they would charge for the rest of their life; very problematic.

73
Q

Wrongful Death Claim (Statutory):

A

Family Member’s Claim (statute says who can sue first in the family)

Damages for death and everything after.

Main damages for lost economic contributions and loss of consortium.

74
Q

Wrongful Death Claim: Who determines what damages are recoverable?

A

The Statute.

Usually, Pecuniary (lost economic contribution) damages.

75
Q

Who is it “cheap” to kill and why?

A

Kids, elderly, adults lacking dependents.

No one relies on them.

76
Q

2 popular measures of tort reform?

A

Comparative Fault Damage
Caps (on noneconomic damages)

77
Q

What does a damage cap harm?

A

Caps on damages throw doubt on jury trials.

Harms: Right to ready, Due process, Equal Protection, the unemployed/lower economic/women/racially different plaintiffs.

78
Q

Damages cap in Arkansas?

A

Arkansas doe NOT have a damage cap.

79
Q

What type damages are emotional distress and mental anguish?

A

Noneconomic Damages

80
Q

Are damage judgments taxed?

A

If the damages replace something that usually gets taxed, then it is taxed.

If the damages are for an injury related to physical injuries and physical sickness, then congress has said is can’t be taxed.

81
Q

If a lost wages judgement stems from a personal injury, will it be taxed?

A

No, it won’t be taxed.

82
Q

Is emotional distress non-taxable?

A

No, it can still be taxed because it is a non-physical damage.

83
Q

Rule: Taxes on Damages simplified:

A

Damages are taxed if what is being awarded for is usually taxed, unless it is a physical injury.

84
Q

Who want a pre-tax award?

A

plaintiff

85
Q

Who wants a post tax award?

A

defendant

86
Q

How does Arkansas handle taxes?

A

Arkansas Supreme Court has made it clear we do pre-tax numbers, and we do not instruct the jury about taxes, instead, we calculate gross wages.

87
Q

Interest: how do we charge?

A

We charge interest based off prejudgment and post-judgment.

88
Q

Interest: Issues with using Prejudgement?

A

Trials are lengthy

89
Q

Interest: Who should seek prejudgement?

A

plaintiff should always seek, and when the plaintiff forgets to ask the defendant should stay quiet.

90
Q

Interest: What is prejudgement?

A

From harm to trial.

Controversial

91
Q

Interest: When available?

A

Usually only available when damages are known (ascertainable) like lost wages.

92
Q

Interest: When is prejudgement interest not available?

A

For personal injury claims (because damages are unknown).

93
Q

Interest: What can a judge do for prejudgement interest?

A

Court can remove some if plaintiff prolongs the trial on purpose.

94
Q

Interest: What is Post-judgement?

A

From trial onwards

Non-controversial.

95
Q

Future damages and present value: Generally:

A

Money now is always worth more than money later.

96
Q

Future damages and present value: Rule on present value:

A

Just because something has a present value, does not mean it will have the same value in 10 years—the future interest.

97
Q

Future damages and present value: Who determines?

A

Get an expert to get as much money as possible.

98
Q

Future damages and present value: 3 ways to calculate Future Lost Wages:

A

1) Offset Present Value
2) Inflation Adjustment Method
3) Total Offset Method

99
Q

Future damages and present value: What if you agree to take money in payments?

A

If you take delayed money in structured payments, ensure those later payments reflect inflation.

Remedies (7 decks)

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