Legal Remedies Flashcards
Legal Remedies
The result
The result is a Judgment
Not a court order
Not backed by jail time
Legal Remedies
Types of damages
- Compensatory
- General damages
- Special damages
- Nominal
- Punitive
Why are nominal damages important?
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
Can compensatory damages be punitive?
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”
Compensatory Damages
General
- you get “market value”
- For everyone who has brought this type of action
- General damages are for direct harm
Compensatory: Special Damages
Elements
What must you show to get special damages?
- Particular to this P
- Must be foreseeable
- Proven to a reasonable certainty
- existence of harm
- existence of loss
- magnitude: not too speculative
Compensatory: Special Damages
Must prove what to a reasonable certainty?
Must prove
- Existence of harm
- Existence of loss
- Magnitude of loss
- “Not too speculative”
Compensatory: Types of Special Damages
Tort Cases
Tort:
- Economic damages
- Medical expenses
- Lost wages
Compensatory Damages:
Do I choose Contract or Tort?
Consider:
- Statute of Limitations (could be different)
- Punitive damages (not in contract)
- Emotional distress (usually not in contract)
Interest
Pre and post
- 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
- The time it took to win the case?
- Courts compound annually.
Post-judgment interest
Fed & California Interest rates
- Fed courts: mandatory!
- But interest rate is crazy low… tracks treasury bill interest
- CA courts: mandatory!
- 10% per anum, simple interest
Pre-judgment interest
Fed courts
Which rule applies to determine if interest is added?
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)
Pre-Judgment Interest
California
When do cases get pre-judgment interest?
What is the rate for contract vs tort?
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
Defense to damages:
Collateral source rule
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
Policy of collateral source rule
(defense to damages)
- 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.
Collateral Source Rule (defense)
Government Provided assistance
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)
Can a statute change the Collateral Source Rule?
Yes
Collateral Source Rule (defense)
Contracts cases
Majority vs Minority
Majority: CSR applies
Minority: does not apply. Info about 3rd party reimbursement allowed.
Defense to damages: Offset the benefits rule
If the damages caused also brings benefit, the award is the net of harm minus benefit.
Defense to damages: Mitigation
Personal Injury
P has a duty to reasonably mitigate damages
Torts: Personal injury
- Duty to mitigate by getting surgical / medical care.
- UNLESS
- Risk to life
- Unreasonable suffering
- Not a reasonable likelihood of success
- UNLESS
Punitive Damages
When are they available?
In general, only available when compensatory damages are awarded
Exception: for intentional torts, nominal damages can support a punitive award
Limits on Punitives
Constitutional
(at the outside)
The test
14th amendment keeps the award from being “arbitrary or grossly excessive”
Test:
- How reprehensible is D’s conduct
- Ratio of punitive to compensatory damages
- How does it compare to criminal sanctions?
Limits on Punitives
Constitutional (at the outside)
The test: 1. How reprehensible is D’s conduct
- 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.
Limites on Punitives
Constitutional (at the outside)
- Ratio of punitive to compensatory damages
- Greater than 10:1 … probably a violation
- 3:1 … probably ok
- In the middle… ?
Limites on Punitives
Constitutional (at the outside)
- How does it compare to criminal sanctions?
This is a sanity check
Only look at conduct towards this particular P
Limits to punitives
state statutes
- 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
Limits to Punitives
Common Law
Court might decide common law cap on punitives
For example, fed maritime law… 2:1 damages cap
Punitives in Contract law
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.
Watch recording about nuisance
look it up and watch it
Cause of action: Unjust enrichment.
Remedy: restitution
Elements
Unjust enrichment elements
- D got a benefit; was enriched
- At the expense of the P
- Unjust for D to keep the benefit
Flavors of unjust enrichment
- Quasi-contract
- Quantum meruit
- Contract-implied-in-law
Unjust enrichment
Legal / contract
What is the benefit, usually?
Often the benefit is a service.
P wants to be paid for it
Unjust enrichment
Constructive trust
- Benefit conferred to D is some specific property or pot of money
- P wants D to give it back
- If comingling of funds:
- P can get a constructive trust if the money is traceable.
- Appreciation goes to P. Losses go to D.
- 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.
Unjust Enrichment
What value does D pay back?
- 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
DEFENSE to unjust enrichment
The benefit was conferred voluntarily w/out immediate payment expectation
Can’t later ask for compensation
Declaratory Judgments
A declaration of rights
Nip disputes in the bud
Enables P to choose venue
Limits on filing Declaratory Judgment actions
- Constitution has a case or controversy requirement
- Must be definite and concrete, real and substantial
- P must reasonably fear an imminent lawsuit
Does a court have to hear a Declaratory Judgment Action?
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
Personal Injury
Components of a damages award
- Pain and suffering
* Past and future in one lump sum
* no pre-judgment interest
- Pain and suffering
- Past economic harm
* medical bills
* yes pre-judgment interest
- Past economic harm
- Future economic harm (estimated)
* Reasonable certainty
* Medical + lost wages
- Future economic harm (estimated)
- (Add 1-3 plus post-judgment interest on all of it.)
Personal Injury
Do Special Damages have to be particular to the P?
Proven to what?
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
Personal Injury
General Damages
Non-economic
pain & suffering
Personal Injury
Pain and suffering
Components
- 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.
Personal Injury
Lost Wages
Components
-
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
- Start w/statistical averages.
-
4. Taxes
- Do they reduce the award?
- Federal court: yes
- State court: no
- Do they reduce the award?
Personal Injury
Pain & Suffering
Emotional Distress
Common law
Common law:
- must be in the zone of danger
2a. And have physical contact to oneself; OR
2b. Witness injury to family member - Have physical manifestations
Personal Injury
Pain & Suffering
Emotional Distress
Codified State Statutes: IIED
IIED
- Reckless or Intentional
- Extreme and outrageous conduct
- physical manifestations
- (no one has to be in physical danger)
Personal Injury
Pain & Suffering
Emotional Distress
Codified State Statutes: NIED
NIED
- Negligent conduct
- Physical manifestations
- Breach of duty
Loss of spousal consortium
Who can bring a case?
Limited to marriages or registered domestic partnerships
Loss of parental consortium
- COA for child of injured parent
- Limited to minors / disabled dependants on parents
Loss of child’s consortium
Brought by parent
Child won’t be able to care for elderly parents
Loss of Consortium
Death
Who can bring suit?
- Victim’s estate
- Survivor statute (tort claims survives death)
- Surviving family members
- Wrongful death statute
Torts to Property
Personal Property
What value do you get?
FMV at time of tort
- Exception: property w/variable value
- Larger amount of:
- replacement value OR
- FMV at time of tort
- Larger amount of:
Torts to Property
Personal Property
Household items
No FMV to compare to… used underwear & toothbrushes??
Household items get REPLACEMENT value!
Torts to Property
Personal Property
No market to compare to
Items of almost purely sentimental value: heirlooms, photos, trophies
Might get the sentimental value awarded!
Torts to Property
Personal Property
Wrecked Car
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
- Replacement
Torts to property
What is Replevin?
An action seeking return of personal property wrongfully taken or held by the defendant.
Mostly used by creditors
Law enforcement picks up disputed property
Torts to property
Replevin procedure
Procedure
- File lawsuit
- Seek replevin
- Post a bond for the property
- D asks court to change mind
- D posts a counterbond
(if no ability to post a bond, can request a hearing where P has the burden of proof)
Torts to property
Repossession vs. Replevin
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
Torts to Real Property
Ejectment
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
Remedies for trespass on real property
Legal
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
Remedies for trespass
Equitable
Injunction
- Only for substantial or intentional trespass
- Orders D to cure trespass
- Balance of hardships must tip in P’s favor
Remedies for trespass
Restitutionary
Unjust enrichment
When the P is the trespasser; and the
Trespass adds value to the property
Personal Injury
If there’s been a battery
What type of damages?
Remember these things:
Compensatory damages
- Non-economic loss (general damages)
- Pain and suffering
- emotional distress
- Pain and suffering
- Economic loss (special damages)
- Medical expenses
- lost wages
Punitive damages
- If the battery is intentional
If you see a family member die, sue for:
- Wrongful death
- Consortium style damages
- Emotional distress
- Common law
- If you are in the zone of danger
- Need physical manifestations
- Statutes
- IIED, NIED
- Common law
If a truck gets stolen and crashed
Can recover
- FMV at time of tort
- Loss of use
- replacement costs
- profit
If money gets stolen
Conversion:
- gets the money
Unjust enrichment:
- Place money in constructive trust
- Traceable assets recovered
- appreciation goes to P
If object falls onto your land and can’t be easily removed (trespass)
- 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
If you get a threat to have your face smashed in
TRO
Nuisance
types of damages
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
Trespass vs. Nuisance
Trespass: physical, tangible intrusion interfering with ability to enjoy property
Nuisance: odor, sounds, pollution, bright lights. Indirectly interferes w/ability to enjoy property
2 options when there is damage to personal or real property:
- drop in FMV
- comparing immediately before to immediately after tort
- Cost of repair (plus remaining drop in FMV)
Personal: Lesser of the two
Real property: Let P choose (usually repair)
Nuisance
If an injunction is denied because of balance of hardships and public interest:
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.
Defense to Nuisance
“coming to a nuisance”
If you move near one, so sorry.
“right to farm” statutes
keeps you from suing farm owners.
Damages for breach of contract
-
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
Damages for breach of contract
consequential damages
Happens in future as a consequence of breach. Like loss of future profits.
Damages must be:
- foreseeable
- proven to a reasonable certainty
- magnitude of loss: not too speculative
Damages for Breach of Contract
Liquidated Damages are enforceable if:
- 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.
What can be plead in the alternative to Breach of Contract?
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)
- specific performance
Contract
Rescission and Reformation
- 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
To get Special Compensatory damages:
(damages specific to this P)
- Must be foreseeable
- proven to a reasonable certainty
- existence of harm
- existence of loss
What are the 3 defenses to Legal Damages?
- Collateral Source Rule
- Offset the benefits rule
- Mitigation
Components of a Personal Injury Award
- Pain and suffering (general damages)
* Past and future in one lump sum
* no pre-judgment interest
- Pain and suffering (general damages)
- Past economic harm (special damages)
* medical bills
* Include pre-judgment interest
- Past economic harm (special damages)
- Future economic harm (estimated) (special damages
* Proven to Reasonable Certainty
* Medical + lost wages
- Future economic harm (estimated) (special damages
- Add 1-3 plus post-judgment interest on all of it.
What are the types of legal damages?
- Compensatory
- Nominal
- Punitive
What do compensatory damages focus on?
P’s harm
Do you have to prove foreseeability for personal injury cases?
No.
