REMEDIES Flashcards
What is the 3 step approach to any remedies question?
- Determine what substantive area of law is involved including what specific type of problem is at issue within that area. (could be 2)
- Make sure that plaintiff is going to win the case. (On crossover questions, P will always have a good case).
- Determine what remedies require discussion. Must be done in chronological order as follows:
- legal remedies
- restitutionary remedies
- equitable remedies
What are the possible tort remedies?
1. legal remedies
• damages
2. Restitutionary remedies
• legal restitutionary
* restitutionary damages
* replevin
* ejectment
• equitable restitutionary remedies
* construtive trusts
* equitable liens
- Equitable remedies
• Injunctive Relief
What is the definition of legal damags and hwat are the 3 types?
Defendant is ordered to pay money to plaintiff.
- compensatory
- nominal
- punitive
What are compensatory damages?
These are based on teh damage to the plaintiff. They put the injured party in the position he/she would have been in had the injury not occurred.
What are the 4 requirements for compensatory damages?
- causation (actual, but for test)
- forseeability (proximate causation–injury must have been foreseeable at the time of the tortious act).
- Certainty (damages can’t be to speculative)
- Unavoidability (P must take reasonable steps to mitigate damages).
______ losses have to be established with more certainty than ______ losses.
Past; future
What is the all or nothing rule in regards to damages awards?
For future damages, P must show that they are more likely to happen than not. Greater than 50% chance.
E.g. Injured P is an outstanding undergraduate student who has been accepted to law school. Basisi of future lost income calculation?
• P would argue that more likely than not, they would succeed in law school.
The certainty rules for compensatory damages apply to ___________ but not to __________.
- economic losses (medical expenses/lost earnings)
2. non-economic losses (pain and suffering, permanent disfigurement.
For compensatory damages awards, the award must be a _________ payment. Installment payments are not allowed.
single lump sum
What are the 2 calculation rules for compensatory damages and what should you write on the bar exam?
- The award must be discounted to present value.
- Inflation is not taken into account.
Write: The judgment must be a single lump sum payment discounted to present value without taking inflation into account (except under the modern rule).
What are nominal damages? What is their purpose?
- Awarded where the P has no actual injury. They serve to establish or to vindicate the plaintiff’s rights.
E.g.: D regularly walks across dirt road on Ps land to get to a bus. P bothered, but no actual injury. But can lead to easement, so P wants to establish rights.
What are punitive damages?
Awarded to punish the defendant.
What are the 3 rules regarding punitive damages in torts?
- In order to get punitive damages, P must have first been awarded compensatory or nominal damages. (can also be attached to restitutionary, just can’t be punitive alone).
- In order to get punitive damages, the D’s type fault must be greater than negligence.
- Generally, punitive damages are awarded in an amount relatively proportionate to actual damages. U.S. Supreme Court woudl limit punitive damages to a single digit multiple of actual damages unless conduct facts are extreme. Not more than 9:1 ratio to actual damages.
In order to get punitive damages, P must have first been awarded _________ or __________ damages.
compensatory; nominal
In order to get punitive damages, the D’s type fault must be greater than ____________.
negligence
Generally, punitive damages are awarded in an amount relatively ________ to actual damages.
proportionate
U.S. Supreme Court woudl limit punitive damages to a single digit multiple of actual damages unless conduct facts are extreme. Not more than 9:1 ratio to actual damages.
What is the basic concept behind restitutionary damages?
Remedies are based on the theory that the defedant should not be unjustly enriched.
What are the 3 legal restitutionary remedies?
- damages
- replevin
- ejectment
What is the basic concept behind legal restitutionary damages?
These are based on the benefit to the D and the amount is calculated based on the value of the benefit.
Compensatory v. Restitutionary: D destroys plaintiff’s car. Remedy?
Only compensatory. D hasn’t benefitted from destroying the car. no restitutionary
Compensatory v. Restituionary: P buys land (doesn’t use) with private dirt road through the middle. D manufacturing company drives trucks across road on P’s vacant property to get to railroad reducing trip from ten miles to one-half mile. Remedy?
Only restitutionary damages. No injury to P, but benefit to D. Saving gas, labor costs, etc.
**Nominal could also be awarded here.
Compensatory v. Restitutionary: D steals your machine to use in its business. Remedy?
Both.
Compensatory: P is injured, machine was stole.
Restitutionary: D has benefitted. used the machine in business. Unjust enrichment.
- Coudl be punitive as well.
- Remember, P can’t be awarede both compensatory and restitutionary damages. Write about both and give P the larger sum.
What is replevin?
a legal restitutionary remedy available in tort where the plaintiff recovers possession of specific personal property (chattel).
What is the 2 part test for replevin?
Establish that:
- P has a right to possesison
- There is a wrongful withholding by D.
*P can get something back before he/she wins at trial. T
What is the timing of replevin?
P can recover the chattel before the trial. If this is in issue, mention in your answer that:
- P will have to post a bond
- D can defeat an immediate recovery by posting a re-delivery bond. (D can then keep the chattel until after the trial).
*Sheriff repossesses property for the Plaintiff.
Who repossesses property for the plaintiff?
The sheriff.
Replevin is almost always coupled with _________ for lost use or benefit to the D during the time of detention.
damages (compensatory or restitutionary).
What is ejectment?
A legal restitutionary remedy where the Plaintiff recovers possession of specific real property.
What is the 2 part test for ejectment?
- The P has a right to possession.
2. There is a wrongrul withholding by the D.
Ejectment is available only against a D who has _________ of property.
possession
E.g.: D crosses P’s lawn on the way to the bus everyday. No ejectment because no possession.
Ejectment is almost always coupled with _________ for lost use or benefit to D during time of wrongful withholding.
damages (compensatory or restitutionary).
What are equitble restitutionary remedies in tort?
- constructive trusts
2. equitable liens
What is a constructive trust?
Imposed on improperly acquired property to which D has title. D serves as trustee and must return the property to the P.
What is an equitable lien?
Imposed on improperly acquired property to which D has title. Property will be subject to an immediate court-directed sale. The monies received go to the plaintiff. If the proceeds of the sale are less than the fair market value of the property when it was taken, a deficiency judgment will issue for the difference and can be used against D’s other assets.
Constructive trusts and equitable liens can be used only when D has _________ to the property.
title
What are the rules related to constructive trusts and equitable liens?
- Must first be an inadequate legal remedy. (generally money damages)
• Defendant is insolvent; or
• property is unique (constructive trust) - Tracing is allowed
•D sold property for $50,000 and put in a bank. P can trace that money. - Bona fide purchasers prevail over plaintiff.
• D sold the property to L a BFP. P wants to have a constructive trust imposed on the property. Can he? No. L was a BFP. - Plaintiff will prevail over unsecured creditors.
How do decide which remedy, constructive trust or equitable lien?
If the property value subsequent to taking goes UP, go with a constructive trust. Get the property back with added value.
If the property subsequent to taking goes DOWN, go with an equitable lien. P will get a deficiency judgment for what it was worth at the time of taking.
When D’s property cannot be traced solely to P’s property, only an equitable lien is available.
E.g.: D misappropriates money and uses it to remodel his home. Since title to the home was not obtained by sole use of the money, the propery remedy is an equitable lien on it. Can’t get the whole house.
What is the equitable remedy available in tort? What is the definition?
Injunctive relief: D is ordered (enjoined) to do or refrain from doing something.
What is the threshold inquiry for an injunctive relief question?
Determine whether your’e required to discuss permanent or temporary/preliminary injunctive relief.
Permanent injunction: issued after full trial on the merits.
Temporary Injunction: issued pending trial on merits.
A permanent injunction is issued __________ while a temporary injunction is issued ___________.
after a full trial on the merits; issued pending trail on the merit.
What is the 2 part test for temporary/preliminary injunctive relief?
- Establish that there is irreparable injury.
• Facts must be discussed in a time frame context. One must know that he or she will incur irreparable injury while waiting for a full trial and that’s why she needs relief NOW.
• Irreparable injury is weighed against any hardship defendant will suffer if a temporary injunction is granted. - Establish the P’s probability of success on the merits.
• If a preliminary injunction is sought on the exam: mention that the court should impose a bond requirement on plaintiff to reimburse D if the injunction injures him and the P does not succeed.
Exam writing approach for temporary injunction:
- In issue is whether P can obtain a temporary or preliminary injunction. To do so, P must meet a two-part test:
- Irreparable Injury (discuss in time sensitive facts)
- Probability of succeeding (discuss bond)
Contrast a temporary restraining order with a typical temporary injunction:
TRO is issued pending a hearing to determine whether a preliminary injunction should issue.
The test for obtaining a TRO is identical to that for preliminary injunction.
- irreparable harm
- probability of success
TRO proceeding can be ex parte. Thus:
- notice is not required and
- Adversarial proceeding is not required.
*Even so, if there’s an opportunity to give the D notice and a chance to appear and contest the injunction, a good faith effort must be made to do so.
TROs are limited to ________ (________ days in federal court).
10 days; 14 days
What are the four requirements for a permanent injunction?
- Inadequate legal remedy
- feasibility of enforcement
- balancing of hardships
- defenses
(I’m feeling bold and determined) OR (I’ll feel better dead).
In analyzing a case for permanent injunctive relief, why might replevin be an inadequate legal remedy?
- The sheriff may not be able to recover it, e.g. find or identify the chattel.
- D can file a redelivery bond (and then, e.g. run off with or destroy chattel in the interim).
In analyzing a case for permanent injunctive relief, why might ejectment be an inadequate legal remedy?
The sheriff may refuse to act.
E.g. D builds a structure which slightly encroaches on P’s property. Sheriff isn’t going to rip it down.
In analyzing a case for permanent injunctive relief, why might money damages be an inadequate legal remedy?
- Too speculative
- D is insolvent
- Irreparable injury
• Factory emits clouds of smoke containing metallic particles harmful to the lungs. - Avoiding a multiplicity of actions.
• They will tell you there has been a prior history of litigation between the parties.
*It is much easier to show money damages are inadequate if P is protecting an interest in land, e.g., injunctive relief against nuisance, trespass to land.
