Legal Remedies Flashcards

Question

Limites on Punitives Constitutional (at the outside) 3. How does it compare to criminal sanctions?

Answer 1

This is a sanity check Only look at conduct towards this particular P

Answer 2

* 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

Answer 3

Court might decide common law cap on punitives For example, fed maritime law… 2:1 damages cap

Answer 4

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.

Answer 5

look it up and watch it

Answer 6

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

Answer 7

* Quasi-contract * Quantum meruit * Contract-implied-in-law

Answer 8

Often the benefit is a service. P wants to be paid for it

Answer 9

* 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. * 2. Appreciation goes to P. Losses go to D. * 3. 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.

Answer 10

* 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

Answer 11

The benefit was conferred voluntarily w/out immediate payment expectation Can’t later ask for compensation

Answer 12

A declaration of rights Nip disputes in the bud Enables P to choose venue

Answer 13

* Constitution has a case or controversy requirement * Must be definite and concrete, real and substantial * P must reasonably fear an _imminent lawsuit_

Answer 14

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

Answer 15

* 1. Pain and suffering * Past and future in one lump sum * no pre-judgment interest * 2. Past economic harm * medical bills * yes pre-judgment interest * 3. Future economic harm (estimated) * Reasonable certainty * Medical + lost wages * (Add 1-3 plus post-judgment interest on all of it.)

Answer 16

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

Answer 17

Non-economic pain & suffering

Answer 18

* **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.

Answer 19

* **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

Answer 20

Common law: 1. must be in the zone of danger 2a. And have physical contact to oneself; **OR** 2b. Witness injury to family member 3. Have physical manifestations

Answer 21

IIED * Reckless or Intentional * Extreme and outrageous conduct * physical manifestations * (no one has to be in physical danger)

Answer 22

NIED * Negligent conduct * Physical manifestations * Breach of duty

Answer 23

Limited to marriages or registered domestic partnerships

Answer 24

* COA for child of injured parent * Limited to minors / disabled dependants on parents

Answer 25

Brought by parent Child won’t be able to care for elderly parents

Answer 26

* Victim's estate * Survivor statute (tort claims survives death) * Surviving family members * Wrongful death statute

Answer 27

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

Answer 28

No FMV to compare to… used underwear & toothbrushes?? Household items get REPLACEMENT value!

Answer 29

Items of almost purely sentimental value: heirlooms, photos, trophies Might get the sentimental value awarded!

Answer 30

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

Answer 31

An action seeking return of personal property wrongfully taken or held by the defendant. Mostly used by creditors Law enforcement picks up disputed property

Answer 32

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)

Answer 33

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

Answer 34

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

Answer 35

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

Answer 36

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

Answer 37

Unjust enrichment When the P is the trespasser; and the Trespass adds value to the property

Answer 38

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

Answer 39

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

Answer 40

Can recover * FMV at time of tort * Loss of use * replacement costs * profit

Answer 41

Conversion: * gets the money Unjust enrichment: * Place money in constructive trust * Traceable assets recovered * appreciation goes to P

Answer 42

* 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

Answer 43

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

Answer 44

Trespass: _physical, tangible_ intrusion interfering with ability to enjoy property Nuisance: odor, sounds, pollution, bright lights. Indirectly interferes w/ability to enjoy property

Answer 45

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)

Answer 46

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.

Answer 47

"coming to a nuisance" If you move near one, so sorry. "right to farm" statutes keeps you from suing farm owners.

Answer 48

* **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**

Answer 49

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

Answer 50

* 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.

Answer 51

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)

Answer 52

* 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

Answer 53

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

Answer 54

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

Answer 55

* 1. Pain and suffering (general damages) * Past and future in one lump sum * no pre-judgment interest * 2. Past economic harm (special damages) * medical bills * Include pre-judgment interest * 3. Future economic harm (estimated) (special damages * Proven to Reasonable Certainty * Medical + lost wages * Add 1-3 plus post-judgment interest on all of it.

Answer 56

1. Compensatory 2. Nominal 3. Punitive