Remedies Flashcards
What are the types of MONEY damages for torts?
- Compensatory
- Nominal
- Punitive
- Restitution
What are compensatory damages?
Tort remedy
Based on the damage done to P
Seeking to put the P in the position they would have been had the injury not occurred
Requirements:
(1) Causation [but for]
(2) Foreseeability
(3) Certainty [dmgs not speculative]
(4) Unavoidability [reasonable steps to mitigate]
Certainty rule applies to economic losses
Does not apply to non-economic losses
How should compensatory damages be form wise when given to P?
One single lump sum payment [no installments] that will be discounted to present value without taking inflation into account except under more modern rule
What are nominal Damages [torts]
Tort remedy
Recoverable when no injury sustained
Used to establish and vindicate the Ps rights
NOTE: that actual injury is a requirement of some claims–in that case nominal cannot be recovered
What are punitive damages [torts]
Tort remedy
Awarded to punish D for “willful, wanton, and malicious conduct”
Generally limited to intentional torts
Rules:
(1) cannot just have punitive (has to come along with one of the others)
(2) Ds fault must be greater than negligence
(3) awarded proportional to other damages
GENERALLY: punitive should not exceed 10X compensatory
What are Restitutionary Remedies [torts]
They are remedies that are used when the D has retained a benefit that amounts to unjust enrichment
Types [Torts]:
-Restitutionary damages
-replevin
-ejectment
-equitable restitutionary remedies
-constructive trusts
-equitable leins
What are restitutionary damages? [contracts]
D pays P the reasonable value of the benefit unjustly obtained
Amount is calculated based on the value of the benefit to the D
NOTE: you cannot get both restitutionary + compensatory damages
(if you could use either in a fact pattern talk about both though!)
What is Replevin?
Tort Remedy
Legal remedy that allows the P to recover prior to trial possession of specific chattel wrongly taken or detained
Test:
(1) P has to. have the right to possession
(2) there is a wrongful withholding by the D
Requirements:
-judicial hearing
-P will have to post bond when their chattel is returned
What is ejectment?
Tort Remedy
Legal remedy to restore possession of real property from which P was wrongfully ousted
Test:
(1) P has a right to possession
(2) there is a wrongful withholding by D
What is a constructive trust?
Tort Remedy
Equitable restitutionary remedy that is imposed on improperly acquired property to which the D has title
Equity creates a trust + then D serves as a trustee and must return property to the P
P must show:
(1) D has title to the property and Ds acquisition can be traced to wrongful acquisition
(2) Ds retention of property would result in unjust enrichment
(3) P has no adequate remedy at law
no remedy = Ds insolvency or uniqueness of land
HINT: use when property value goes UP
What is an equitable lien
Tort Remedy
Lien imposed on Ds property to secure payment of a debt owed to the P
Results in immediate court directed sale–money goes to P
Different from constructive trust: D has misappropriated Ds property and he has improved property he already owns using money or property wrongfully obtained
Requirements:
-P has priority over creditors (and can get a deficiency judgement if needed)
-cut off by transfer to BFP
HINT: use when property value goes DOWN
What is Injunctive Relief?
Tort [equitable] remedy
P may be able to get an injunction against tortious conduct being or about to be committed
NOTE: that injunctive relief is almost always coupled with damages for injuries in the time period prior to obtaining the injunction
What are Preliminary Injunctions?
Tort [equitable] Remedy
Used to preserve the status quo until trial
Stays in place until trial and notice MUST be given
Must show:
(1) irreparable injury
(2) Ps likelihood of succeeding on the merits
(3) balancing of the hardships re P + D
IS PUTIN BAD
Court could also impose a bond requirement on the P to reimburse the D if the injunction injures them and P does not prevail
What is a temporary restraining order?
Tort [equitable] remedy
TRO
Must show the same as a preliminary injunction
Difference: used in drastic circumstances when irreparable harm will occur before a hearing on the PI
TRO can be granted without notice if moving party can make a strong showing why notice should not be required
TRO is limited to 10 days (14 in federal)
After expiration–regular hearing for PI must be held
What is a permanent injunction
Tort [equitable] remedy
Is the relief sought
How to get:
I’M FEELING BOLD AND DETERMINED
(1) Inadequacy of legal remedy
(2) Feasibility of Enforcement
(3) Balance of hardships
(4) Defenses
i. unclean hands
ii. laches
iii. impossibility
iv. free speech