Negligent Torts - DAMAGES

Question 1

What remedies are available for negligent torts?

Answer 1

1. Compensatory damages;
2. Punitive damages, where P shows reckless conduct; AND
3. Injunctions

(May be any combination of these; equitable and monetary not exclusive)

Question 2

What is the “eggshell skull” principle?

Answer 2

You take the plaintiff as you find him– D is liable for harm suffered by P even if it is surprisingly great in scope

(N.B. Eggshell skull principle applies to ALL torts, not just negligence!)

Question 3

What is the NY RULE on collateral sources?

Answer 3

Generally, a successful P’s award is reduced by the amount of any benefits that the P has or will receive from collateral sources

Exception: Benefits where a lien may be imposed against P’s award

Question 4

In addition to analyzing the full tort and showing that P is entitled to relief, what must P show in order to get a permanent injunction? (Injunctive relief)

Answer 4

P must also prove that:

1. There is no adequate remedy available at law (i.e., money damages are not good enough);
2. P suffered a harm to some property interest or protectable right;
3. Injunction is enforceable (almost never an issue if injunction is negative); AND
4. Balance of hardships must tip in P’s favor

Question 5

What makes money remedies “inadequate” w/r/t seeking an injunction?

Answer 5

1. If D is insolvent;
2. If P faces some imminent harm to person or property that cannot be measured in money terms; OR
3. Tort is continuous

Question 6

When will an injunction be unenforceable?

(If negative)

(If mandatory)

Answer 6

Negative injunctions are usually enforceable

Mandatory injunctions are evaluated based on:

1. How complex the conduct is,
2. How long it will take for the conduct to be completed, AND
3. Whether the conduct is within the jurisdiction

Question 7

What special showings must P make in order to be granted a preliminary injunction?

Answer 7

1. Likelihood of success on the merits
2. P would suffer irreparable injury without injunction

Question 8

What are the affirmative defenses to injunctions?

Answer 8

1. Unclean hands: P’s own misconduct offsets the misconduct by D and no injunction granted
2. Laches - prejudicial delay
3. First Amendment (in defamation cases) - no prior restraint

Question 9

What is the collateral source rule?

Answer 9

Damages are not reduced simply because plaintiff has also recovered from other sources

Question 10

What damages are nonrecoverable?

Answer 10

Interest from the date of damage in personal injury action

Attorneys’ fees

Question 11

When are punitive damages available?

Answer 11

Generally only available in intentional tort cases OR cases where D acted recklessly; NOT generally available in simple negligence cases

Question 12

What are the two kinds of injunctions?

Answer 12

1. Preliminary injunctions
2. Permanent injunctions

Question 13

What is a preliminary injunction?

Answer 13

Comes early in the proceedings; designed to “freeze” the case and preserve the status quo until after a judgment on the merits

Question 14

What is a permanent injunction?

Answer 14

Comes after the case has been litigated; it is a remedy on the merits

Question 15

What is a negative vs. a mandatory injunction?

Answer 15

Negative injunction: Ct says D must REFRAIN from doing a certain action

Mandatory injunction: Ct says D MUST DO a certain action