Overview / Tort Remedies + Damages

Question 1

How to Spot Remedies Question

Answer 1

1) Call of the question will use the word “remedies” or “relief”
-> “What remedies are available to the plaintiff?”
-> “Is P entitled to {specific remedy} like specific performance or injunctions?”

Expect remedies as CROSSOVER questions.

Question 2

3 Step Approach to Remedies Problems

Answer 2

1) Determine the substantive area of law: torts, contracts, or both
2) What specific type of problems are at issue within those substantive areas? If torts: what type of tort i.e. negligence or intentional tort? If contracts: what type of contract i.e. land sale vs. services?
3) Make sure P will actually win the case. Because P won’t get a remedy unless P actually wins.

Expect MIXED problems with both tort and contract remedies.

Question 3

Determine Remedies Available

Answer 3

1) Legal

2) Restitutionary (legal restitutionary + equitable restitutionary)

3) Equitable

You only get equitable if legal aren’t good enough

Question 4

Tort Remedies - Types of Money Damages

Answer 4

Legal remedies include Money damages:

1) Compensatory

2) Nominal

3) Punitive

Question 5

Tort Remedies - Types of Money Damages - Compensatory Damages

Answer 5

Compensatory damages = based on damage done to P. How badly is P hurt?
-> Compensatory Damages Requirements
–» Actual Causation
–» Proximate Causation/Foreseeability
–» Certainty (damages can’t be too speculative; past losses require more certainty than future losses, so you could show your hospital bill if you had a past loss of medical harm, thus more provable than future losses; historical records help; P must show that future damages must be more likely than not i.e. greater than 50/50 “the All or Nothing Rule”)
–» Unavoidability (P must take steps to mitigate the damage)

Certainty rules don’t apply to noneconomic losses / general damages, which include things like damages for pain and suffering or permanent disfigurement. Jury can award any amount it wants subject to certain jury instructions

Question 6

Form of Judgment Payments (HARD MEMORIZE)

Answer 6

Awards must be in the form of a single lump sum payment. No installment plans.

“The judgment must be a single lump sum payment that will be discounted to present value without taking inflation into account under the traditional rule.” MEMORIZE THIS SENTENCE

Question 7

Tort Remedies - Types of Money Damages - Nominal Damages

Answer 7

Awarded when P has no actual injury. They establish or vindicate P’s rights, but with no actual injury.

Question 8

Tort Remedies - Types of Money Damages - Punitive Damages

Answer 8

1) Can’t have punitive damages alone. Must attach to some other form of damages like compensatory or nominal damages.

2) D’s fault type must be greater than negligence, such as willful, wanton, or malicious conduct.

3) Punitive damages usually proportionate to actual damages. As the amount of actual damages goes up, punitives go up too. Usually no more than 10 times as high according to SCOTUS.