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Remedies > Legal Remedies > Flashcards

Legal Remedies Flashcards

1
Q

Legal Remedies

The result

A

The result is a Judgment

Not a court order

Not backed by jail time

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2
Q

Legal Remedies

Types of damages

A
  • Compensatory
    • General damages
    • Special damages
  • Nominal
  • Punitive
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3
Q

Why are nominal damages important?

A

Nominal damages are small because P failed to prove that there is legally compensable harm.

BUT, they allow you to get

  • attorney’s fees
  • punitive damages
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4
Q

Can compensatory damages be punitive?

A

Compensatory damages are only compensation for injury to P. It focuses on P’s harm.

It is not punitive damages if compensatory award is “too large”

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5
Q

Compensatory Damages

General

A
  • you get “market value”
  • For everyone who has brought this type of action
  • General damages are for direct harm
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6
Q

Compensatory: Special Damages

Elements

What must you show to get special damages?

A
  1. Particular to this P
  2. Must be foreseeable
  3. Proven to a reasonable certainty
    1. existence of harm
    2. existence of loss
    3. magnitude: not too speculative
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7
Q

Compensatory: Special Damages

Must prove what to a reasonable certainty?

A

Must prove

  • Existence of harm
  • Existence of loss
  • Magnitude of loss
    • “Not too speculative”
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8
Q

Compensatory: Types of Special Damages

Tort Cases

A

Tort:

  • Economic damages
    • Medical expenses
    • Lost wages
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9
Q

Compensatory Damages:

Do I choose Contract or Tort?

A

Consider:

  • Statute of Limitations (could be different)
  • Punitive damages (not in contract)
  • Emotional distress (usually not in contract)
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10
Q

Interest

Pre and post

A
  • Should P be compensated for
    • The time it took to win the case?
      • Pre-judgment interest
    • The time it took D to pay after the judgment?
      • Post-judgment interest
  • Courts compound annually.
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11
Q

Post-judgment interest

Fed & California Interest rates

A
  • Fed courts: mandatory!
    • But interest rate is crazy low… tracks treasury bill interest
  • CA courts: mandatory!
    • 10% per anum, simple interest
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12
Q

Pre-judgment interest

Fed courts

Which rule applies to determine if interest is added?

A

Diversity case: apply state rule about application of interest.

Fed Q case: apply fed rule (which is at the discretion of the judge and they often apply the state rule)

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13
Q

Pre-Judgment Interest

California

When do cases get pre-judgment interest?

What is the rate for contract vs tort?

A

Only when damages are certain

The rate:

  • Contract cases
    • Look at the contract for the amount; OR
    • Default 10% simple
  • Tort cases
    • 7% simple per the California constitution
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14
Q

Defense to damages:

Collateral source rule

A

Don’t tell the jury about ways in which 3rd parties have compensated P

  • The 3rd party is usually insurance; but applies to
    • Charity
    • Services donated
    • Any 3rd party giver
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15
Q

Policy of collateral source rule

(defense to damages)

A
  • Encourages purchase of insurance
  • Protects attorney’s fees
  • Tortfeasor deterrence
  • Negative: results in double recovery
    • BUT if insurance has subrogation clause, they get back the money they paid out . So it’s NOT always a double recovery when insurance is 3rd party.
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16
Q

Collateral Source Rule (defense)

Government Provided assistance

A

A minority does not apply the CSR when the benefits are “free”

  • Medicaid, Snap, public school, special ed

If the benefits are “paid for”, the CSR is applied

  • Social security (paid for by payroll taxes)
  • VA benefits (paid for with service)
  • Medicare (payroll)
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17
Q

Can a statute change the Collateral Source Rule?

A

Yes

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18
Q

Collateral Source Rule (defense)

Contracts cases

Majority vs Minority

A

Majority: CSR applies

Minority: does not apply. Info about 3rd party reimbursement allowed.

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19
Q

Defense to damages: Offset the benefits rule

A

If the damages caused also brings benefit, the award is the net of harm minus benefit.

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20
Q

Defense to damages: Mitigation

Personal Injury

A

P has a duty to reasonably mitigate damages

Torts: Personal injury

  • Duty to mitigate by getting surgical / medical care.
    • UNLESS
      1. Risk to life
      2. Unreasonable suffering
      3. Not a reasonable likelihood of success
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21
Q

Punitive Damages

When are they available?

A

In general, only available when compensatory damages are awarded

Exception: for intentional torts, nominal damages can support a punitive award

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22
Q

Limits on Punitives

Constitutional

(at the outside)

The test

A

14th amendment keeps the award from being “arbitrary or grossly excessive”

Test:

  1. How reprehensible is D’s conduct
  2. Ratio of punitive to compensatory damages
  3. How does it compare to criminal sanctions?
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23
Q

Limits on Punitives

Constitutional (at the outside)

The test: 1. How reprehensible is D’s conduct

A
  • Physical harm is worse than economic harm
  • Intentional is worse than reckless
  • Repeatedly is worse than once

D’s conduct towards others besides P cannot be taken into account

  • Other people’s punitive damages should go to the other people, not this particular P.
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24
Q

Limites on Punitives

Constitutional (at the outside)

  1. Ratio of punitive to compensatory damages
A
  • Greater than 10:1 … probably a violation
  • 3:1 … probably ok
  • In the middle… ?
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25
Q

Limites on Punitives

Constitutional (at the outside)

  1. How does it compare to criminal sanctions?
A

This is a sanity check

Only look at conduct towards this particular P

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26
Q

Limits to punitives

state statutes

A
  • No punitives: Nebraska and the rest of the world
  • No punitives… unless allowed by statute.
  • Yes punitives… but caps
    • $$ maximums (eg $500k)
    • Max ratio caps
    • Both of these
    • Or neither, if there is an intentional tort on a person
  • Yes punitives… to constitutional max
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27
Q

Limits to Punitives

Common Law

A

Court might decide common law cap on punitives

For example, fed maritime law… 2:1 damages cap

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28
Q

Punitives in Contract law

A

Liquidated damages are not enforceable if deemed punitive

Liquidated damages are enforceable if the amount varies w/severity of the breach. Not usually enforceable if a lump sum.

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29
Q

Watch recording about nuisance

A

look it up and watch it

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30
Q

Cause of action: Unjust enrichment.

Remedy: restitution

Elements

A

Unjust enrichment elements

  1. D got a benefit; was enriched
  2. At the expense of the P
  3. Unjust for D to keep the benefit
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31
Q

Flavors of unjust enrichment

A
  • Quasi-contract
  • Quantum meruit
  • Contract-implied-in-law
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32
Q

Unjust enrichment

Legal / contract

What is the benefit, usually?

A

Often the benefit is a service.

P wants to be paid for it

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33
Q

Unjust enrichment

Constructive trust

A
  • Benefit conferred to D is some specific property or pot of money
    • P wants D to give it back
  • If comingling of funds:
      1. P can get a constructive trust if the money is traceable.
      1. Appreciation goes to P. Losses go to D.
      1. P gets pro-rata share of comingled funds.
  • Constructive trusts are a good idea if there has been appreciation. Otherwise, use conversion and get face value.
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34
Q

Unjust Enrichment

What value does D pay back?

A
  • Market value of benefit
    • Usually a lot less than real benefit conferred
  • UNLESS
    • benefit is acquired through intentional tort, then confer entire value of the benefit
35
Q

DEFENSE to unjust enrichment

A

The benefit was conferred voluntarily w/out immediate payment expectation

Can’t later ask for compensation

36
Q

Declaratory Judgments

A

A declaration of rights

Nip disputes in the bud

Enables P to choose venue

37
Q

Limits on filing Declaratory Judgment actions

A
  • Constitution has a case or controversy requirement
  • Must be definite and concrete, real and substantial
  • P must reasonably fear an imminent lawsuit
38
Q

Does a court have to hear a Declaratory Judgment Action?

A

DJ acts are discretionary. Courts don’t have to hear them

Courts don’t usually take:

  • Fed action filed by state D
  • Action about a tort or breach that already happened
39
Q

Personal Injury

Components of a damages award

A
    1. Pain and suffering
      * Past and future in one lump sum
      * no pre-judgment interest
    1. Past economic harm
      * medical bills
      * yes pre-judgment interest
    1. Future economic harm (estimated)
      * Reasonable certainty
      * Medical + lost wages
  • (Add 1-3 plus post-judgment interest on all of it.)
40
Q

Personal Injury

Do Special Damages have to be particular to the P?

Proven to what?

A

Yes. And proven to a reasonable certainty as to their existence. There is no foreseeability requirement for personal injury.

For personal injury, special damages are these economic damages

  • Medical bills, lost wages
41
Q

Personal Injury

General Damages

A

Non-economic

pain & suffering

42
Q

Personal Injury

Pain and suffering

Components

A
  • Pain + suffering: sensation of pain
  • Loss of enjoyment of life (hedonic damages)
    • Objective, because you can get loss of enjoyment damages even if you are in a coma
  • The amount for pain and suffering is often anchored by the economic damages. Same amount is awarded.
43
Q

Personal Injury

Lost Wages

Components

A
  • 1. Earning capacity
    • No requirement that P be employed at the time of injury
    • Requires mitigation
  • 2. Change over time
    • Health of employer, industry
    • Planned future education
  • 3. Years until retirement
    • Start w/statistical averages.
      • Adjust up or down w/particularized evidence
  • 4. Taxes
    • Do they reduce the award?
      • Federal court: yes
      • State court: no
44
Q

Personal Injury

Pain & Suffering

Emotional Distress

Common law

A

Common law:

  1. must be in the zone of danger
    2a. And have physical contact to oneself; OR
    2b. Witness injury to family member
  2. Have physical manifestations
45
Q

Personal Injury

Pain & Suffering

Emotional Distress

Codified State Statutes: IIED

A

IIED

  • Reckless or Intentional
  • Extreme and outrageous conduct
  • physical manifestations
  • (no one has to be in physical danger)
46
Q

Personal Injury

Pain & Suffering

Emotional Distress

Codified State Statutes: NIED

A

NIED

  • Negligent conduct
  • Physical manifestations
  • Breach of duty
47
Q

Loss of spousal consortium

Who can bring a case?

A

Limited to marriages or registered domestic partnerships

48
Q

Loss of parental consortium

A
  • COA for child of injured parent
  • Limited to minors / disabled dependants on parents
49
Q

Loss of child’s consortium

A

Brought by parent

Child won’t be able to care for elderly parents

50
Q

Loss of Consortium

Death

Who can bring suit?

A
  • Victim’s estate
    • Survivor statute (tort claims survives death)
  • Surviving family members
    • Wrongful death statute
51
Q

Torts to Property

Personal Property

What value do you get?

A

FMV at time of tort

  • Exception: property w/variable value
    • Larger amount of:
      • replacement value OR
      • FMV at time of tort
52
Q

Torts to Property

Personal Property

Household items

A

No FMV to compare to… used underwear & toothbrushes??

Household items get REPLACEMENT value!

53
Q

Torts to Property

Personal Property

No market to compare to

A

Items of almost purely sentimental value: heirlooms, photos, trophies

Might get the sentimental value awarded!

54
Q

Torts to Property

Personal Property

Wrecked Car

A

Wrecked car

  • You get the lesser of
    • Drop in market value
    • Cost of repairs
  • And also get loss of use:
    • Replacement
      • Renting
      • Incidental cost of buying replacement
    • Profit
      • If the car is used to make money
55
Q

Torts to property

What is Replevin?

A

An action seeking return of personal property wrongfully taken or held by the defendant.

Mostly used by creditors

Law enforcement picks up disputed property

56
Q

Torts to property

Replevin procedure

A

Procedure

  1. File lawsuit
  2. Seek replevin
  3. Post a bond for the property
  4. D asks court to change mind
  5. D posts a counterbond

(if no ability to post a bond, can request a hearing where P has the burden of proof)

57
Q

Torts to property

Repossession vs. Replevin

A

Repo: contractual right. But limited, can’t breach the peace. Can only access property if it’s outside.

Replevin: tried and failed to repossess. Law enforcement can enter property

58
Q

Torts to Real Property

Ejectment

A

A judgment that allows a sheriff to remove a person or thing from property

However sheriffs don’t carry out ejectments in the modern world).

For encroaching buildings

59
Q

Remedies for trespass on real property

Legal

A

Legal

  • If the damage is:
    • Permanent: drop in FMV
    • Reparable: cost of repair
      • Court will bend over backwards to allow repair of property
  • Ejectment (historically)
    • Maybe for a squatter but not a physical object
60
Q

Remedies for trespass

Equitable

A

Injunction

  • Only for substantial or intentional trespass
  • Orders D to cure trespass
  • Balance of hardships must tip in P’s favor
61
Q

Remedies for trespass

Restitutionary

A

Unjust enrichment

When the P is the trespasser; and the

Trespass adds value to the property

62
Q

Personal Injury

If there’s been a battery

What type of damages?

A

Remember these things:

Compensatory damages

  • Non-economic loss (general damages)
    • Pain and suffering
      • emotional distress
  • Economic loss (special damages)
    • Medical expenses
    • lost wages

Punitive damages

  • If the battery is intentional
63
Q

If you see a family member die, sue for:

A
  • Wrongful death
    • Consortium style damages
  • Emotional distress
    • Common law
      • If you are in the zone of danger
      • Need physical manifestations
    • Statutes
      • IIED, NIED
64
Q

If a truck gets stolen and crashed

A

Can recover

  • FMV at time of tort
  • Loss of use
    • replacement costs
    • profit
65
Q

If money gets stolen

A

Conversion:

  • gets the money

Unjust enrichment:

  • Place money in constructive trust
    • Traceable assets recovered
    • appreciation goes to P
66
Q

If object falls onto your land and can’t be easily removed (trespass)

A
  • Damages
    • Drop in FMV OR Cost of repair
  • Injunction
    • To make trespassor remove the object. Must be substantial and inentional trespass.
  • Ejectment
    • Get sheriff to remove the rocks
67
Q

If you get a threat to have your face smashed in

A

TRO

68
Q

Nuisance

types of damages

A

Property: Majority awards lesser of

  • Drop in FMV; or
  • Cost of repair (abatement)
    • (California awards reasonable abatement)

Personal Injury damages

  • If the nuisance makes one physically ill

Loss of use

  • If the land was used to make a profit
69
Q

Trespass vs. Nuisance

A

Trespass: physical, tangible intrusion interfering with ability to enjoy property

Nuisance: odor, sounds, pollution, bright lights. Indirectly interferes w/ability to enjoy property

70
Q

2 options when there is damage to personal or real property:

A
  1. drop in FMV
    1. comparing immediately before to immediately after tort
  2. Cost of repair (plus remaining drop in FMV)

Personal: Lesser of the two

Real property: Let P choose (usually repair)

71
Q

Nuisance

If an injunction is denied because of balance of hardships and public interest:

A

The court can award “permanent damages”

This is a calculation of all future harm given in a lump sum. It gives the D the right to stay in business and keep creating the nuisance.

72
Q

Defense to Nuisance

A

“coming to a nuisance”

If you move near one, so sorry.

“right to farm” statutes

keeps you from suing farm owners.

73
Q

Damages for breach of contract

A
  • expectation
    • price of K. Must mitigate.
  • consequential
    • happens in future as consequence of breach
  • incidental
    • costs associated w/mitigation
  • reliance
    • costs incurred
  • emotional distress
    • only if emotional tranquility is the essence of the contract
  • liquidated
74
Q

Damages for breach of contract

consequential damages

A

Happens in future as a consequence of breach. Like loss of future profits.

Damages must be:

  1. foreseeable
  2. proven to a reasonable certainty
  3. magnitude of loss: not too speculative
75
Q

Damages for Breach of Contract

Liquidated Damages are enforceable if:

A
  • damages are uncertain at the time of contract
  • it’s a reasonable estimate of what the damages might be

Usuall NOT enforceable

  • if it does not vary over time or according to circumstance.
76
Q

What can be plead in the alternative to Breach of Contract?

A

Unjust enrichment / Restitution.

  • Called Quasi-contract or Quantum Meruit.

How is value determined?

  • MARKET VALUE
  • If unique goods or real property
    • specific performance
      • but not for services (slavery)
77
Q

Contract

Rescission and Reformation

A
  • rescission: when there has been a mutual mistake or fraud. The contract is taken away.
  • reformation: when the contract gets corrected to fix a problem
78
Q

To get Special Compensatory damages:

(damages specific to this P)

A
  1. Must be foreseeable
  2. proven to a reasonable certainty
    1. existence of harm
    2. existence of loss
79
Q

What are the 3 defenses to Legal Damages?

A
  1. Collateral Source Rule
  2. Offset the benefits rule
  3. Mitigation
80
Q

Components of a Personal Injury Award

A
    1. Pain and suffering (general damages)
      * Past and future in one lump sum
      * no pre-judgment interest
    1. Past economic harm (special damages)
      * medical bills
      * Include pre-judgment interest
    1. Future economic harm (estimated) (special damages
      * Proven to Reasonable Certainty
      * Medical + lost wages
  • Add 1-3 plus post-judgment interest on all of it.
81
Q

What are the types of legal damages?

A
  1. Compensatory
  2. Nominal
  3. Punitive
82
Q

What do compensatory damages focus on?

A

P’s harm

83
Q

Do you have to prove foreseeability for personal injury cases?

A

No.

Remedies (3 decks)

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