Remedies Flashcards
Define
Rightful Position Standard
The Rightful Position Standard says to choose the remedy that puts the plaintiff back (or keeps the plaintiff) in the position that she would have been in but for the defendant’s wrong.
Define
Substitutionary Relief
Courts often refer to the award of damages as substitutionary relief because money substitutes for the thing that has been lost or damaged. Substitutionary relief causes valuation problems for the courts that don’t exist with specific relief.
Define
Compensatory Damages
Aim to put the plaintiff in the rightful position, the position the plaintiff would have been in but for the defendant’s wrong.
Baseline for a court to determine the amount of damages. Such damages should compensate: “make satisfactory payment or reparation to; recompense or reimburse.”
Compensatory damages are oriented towards plaintiff’s losses (as opposed to defendant’s gains).
Types of Specific Relief
- Replevin: Legal remedy that allows for specific relief; in some circumstances, a plaintiff can use replevin to recover personal property wrongfully taken by the defendant
- Injunction
- Specific Performance
Nominal Damages
In cases such as trespass, where there is no actual damage, a plaintiff might sue to obtain nominal damages, or a trivial sum of damages (such as $1) awarded by a court in lieu of actual damages.
Purpose: declaratory function, vindication of a plaintiff’s rights, might serve as a predicate to allow a jury to award punitive damages (some states require compensatory damages before a jury can award punitive damages), predicate to allow the jury to award attorney’s fees
Punitive Damages
Punitive damages (also termed exemplary damages) are awarded in addition to compensatory damages that are aimed at punishing and making an example out of the defendant.
Special rules for punitive damages:
1. The conduct that merits the award of punitive damages must be quite bad (i.e., malice)
2. Many states raise the burden of proof for a plaintiff to be eligible to collect punitive damages (i.e., California’s “clear and convincing” standard)
3. A majority of states require that a jury must first find plaintiff entitled to compensatory damages before the jury may award punitive damages
4. Many courts impose limits on and strict judicial review of the aount of punitive damages
Rightful Position: Torts
Means accurately measuring the plaintiff’s losses
Tort damages are usually geared toward restoring the status quo
Rightful Position: Contracts
The position that the plaintiff would have been in but for the wrong (“breach”) committed by the defendant
Means accurately considering the gains that plaintiff failed to realize because of a defendant’s breach of contract
Contract damages are usually geared toward giving the plaintiff the benefit of the bargain
Example
Valuing Compensatory Damages
Example: Barbara’s home has been burned down by Alex.
Subjective Measure: Value that Barbara would place on her home. This was Barbara’s childhood home, and she recently turned down a $400,000 offer for the purchase of her home.
Objective Measure: Fair market value. A competent builder would charge $50,000 to rebuild Barbara’s home.
Analysis: When there is a well-functioning market, courts use an objective measure for calculating a plaintiff’s compensatory damages. In Barbara’s case, the portion of damages for the loss of her home is going to be measured by the objective market cost to replace the damaged home, and not by Barbara’s subjective value.
Measuring Market Value
Courts usually measure damages at the time of the loss. In cases involving items that fluctuate in value, however, such as stocks or crops, courts sometimes show greater flexibility.
Define
Economic Damages
Damages for which there is an economic market, such as lost wages, property damage, and medical expenses.
Define
Noneconomic Damages
Damages plaintiffs may claim for items with no functioning economic market, such as pain, suffering, and emotional distress.
Define
Prejudgment Interest
Interest measured from the time of the wrong until the time of judgment which helps put plaintiff in the rightful position.
The availability of prejudgment interest varies by jurisdiction and type of case.
Define
Postjudgment Interest
Interest for the period between the time of judgment and the time that the judgment debtor pays (or “satisfies”) the judgment in order to put plaintiff in the rightful position.
In the federal courts, postjudgment interest is awarded at the set rate of the 52-week Treasury bill, and many states set the rate by statute as well.
Future Damages
Restatement (Third) Torts: Remedies section 15 provides that “For any damage that can be valued by prices in a market, and that the plaintiff will not incur until after the date of judgment, the plaintiff is entitled to recover only an amount that, if appropriately invested from the date of judgment to the date on which the damage will be incurred, would yield principal and interest that in total equals the amount of the damage. Principal categories of future damage subject to this rule are lost earnings or earning capacity, lost profits, and the cost of medical and rehabilitative services.”
Two counterveiling tendencies:
1. The cost of things like medical care and wages will go up over time, and
2. Plaintiff will have the money from the judgment before she needs it, and because she can invest the money, she will need less money now.
Examples: future medical expenses and lost wages
Reliance Damages: Tort
Formula: B - A
B = Status Quo Ante
A = Position After Wrong
Reason’s why a plaintiff’s tort damages may be undercompensatory
- Use of market (objective) valuation rather than subjective valuation
- Inability of some plaintiff’s to obtain prejudgment interest
- Lack of recovery (in most cases) of plaintiff’s attorney’s fees
California: Noneconomic Damage Limit
$350,000. Cal.Civ. Code 3333.2
This amount will eventually rise to $750,000 under the newly revised statute and will be indexed to rise with inflation.
Calculating Pain and Suffering
“Per Diem” = Asking for a certain amount per day (i.e., $10/hr, 16 hrs/day, 7 days/week, 52 weeks/year for 40 years = ~$2.3 million); Some courts allow per diem arguments so long as the jury is told that such arguments are not evidence, but others do not, on the basis that they may overinfluence the jury
Limits on Noneconomic Damages
Courts sometimes will lower the amount of such damages on a motion from the defendant on the grounds that the amount of the award is so high as to “shock the conscience.”
Sometimes, judges will compare verdicts in similar cases and adjust outlier verdicts.
The Restatement takes the position that the court should not overturn an award of damages that has gone to the jury unless the verdict is “grossly excessive” or “grossly inadequate.”
Define
Remittitur
Device used by a judge to lower the amount of damages awarded by a jury which gives the plaintiff the option of either taking the lower amount or having a new trial on the issue of damages.
Define
Additur
Device used by a judge which gives the defendant the option of taking a higher amount of damages chosen by the judge or a new trial on the issue of damages. In some states and on the federal level, additur has been held to violate the right to a jury trial and is therefore unavailable.
Special Categories of Cases where Emotional Harm may be Particularly Foreseeable
Emotional harm that “occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm.”
Examples: mishandling human remains, presence of a “repulsive foreign object” in food such as a condom or rodent
Do courts generally allow recovery for emotional distress damages for the negligent or intentional killing of a pet?
No. Recovery is often limited to the market value of the pet. However, some courts have allowed plaintiffs to recover the medical costs to care for an injured pet.
Define
“Dignitary” Losses
A dignitary harm awards damages for an affront to the person.
“In a great many of the cases, the only harm is the affront to the plaintiff’s dignity as a human being, the damage to his self-image, and the resulting mental distress.”
Wrongful Death Actions
Defendants often pay more damages when they seriously injure someone than when death resuls
Survival of Personal Injury Actions
In some jurisdictions, personal injury actions do not die with the decedent. Consequently, surviving family members may recover damages for pain and suffering the tort victim suffered before his death.
Define
Loss of Consortium Claims
Claim that may be brought in connection with the death of a close relative. Such claims compensate the surviving family member for the emotional distress that results from the death or injury of a loved one.
The rules on loss of consortium differ from state to state.
Can unmarried cohabitants recover damages for loss of consortium?
Overwhelmingly, no.
Define
Defamation
Defamation is a tort defined as “the act of harming the reputation of another by making a false statement to a third person.”
Slander = oral defamation
Libel = written defamation
Damages include: business losses (due to a damaged reputation) and emotional distress
General Standard of Proof for Recovery of Damages
Reasonable Certainty
Limits on the Tort of Defamation
Public figures can not recover damages for defamation without proof that the defendant made a false statement with “actual malice” (either with knowledge of its falsity or with reckless disregard of the truth)
Limits on Defamation Remedies
In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court held that the 1st Amendment sometimes precluded the award of presumed damages, such as in cases where a private citizen sues for defamation involving a matter of public concern.
Then, in Dun & Bradstreet, Inc., v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), the Court held that the 1st Amendment did not limit the award of presumed damages in defamation cases related to speech that “do not involve matters of public concern.”
Egg-Shell Plaintiff Rule
You take the plaintiff as you find him/her. Vosburg v. Putney, 50 N.W. 403 (Wis. 1891)
When it comes to tort damages, a plaintiff can recover all of his damages, even if the extent of his harm was unforeseeable.
Proximate Cause
Proximate cause holds certain acts as too “remote” or not a “substantial factor” in causing plaintiff’s harm to act as a rule that limits damages.
Palsgraf v. Long Island R.R., 162 N.E. 99, 103 (N.Y. 1928): “A cause, but not the proximate cause. What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.”
Define
Economic Harm Rule
The economic harm rule provides that a plaintiff cannot recover for the lost wages or other financial kinds of injury caused by a defendant’s tortious conduct in the absence of physical impact resulting in personal injury or property damage.
Exception to the Economic Harm Rule
Does not apply when the only kind of harm a defendant can inflict upon the plaintiff is economic harm
Define
Contract: Expectancy Damages
The difference between what was promised and what was received
Standard measure for contract damages as it places plaintiff in their rightful position
Formula: C - A
C = Promised position
B = 0 = status quo ante
A = Position after wrong
Define
Contract: Reliance Damages
Damages measured in reliance on the contract
Formula: B - A
B = 0 = status quo ante
A = Position after wrong
Define
Consequential Damages
Damages which are recoverable only if they were foreseeable (if you know or reasonably should have known) at the time of contracting
Hadley v. Baxendale [1854] 9 Exch. 341
Rule: “Where two parties have made a conract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”
The “rule” of Hadley thus divides the world of contract damages into those that are “nautrla,” for which the plaintiff may recover, and those that are “consequential,” for which plaintiff may recover only if the damages are sufficiently “foreseeable.”
If “no consequential damages” is the default rule for contracts claims, why is it not also the default rule for torts claims?
Most torts do not involve a voluntary transaction entered into by two willing parties.
Exception to Consequential Damages Rule in Contracts
When the only breach if contract is the nonpayment of money, the non-breaching party may not be able to recover for consequential damages. Instead, the non-breaching party may recover only the general damages (the unpaid money) plus interest at the prevailing legal rate of interest.
Exception to the Exception: Bad faith insurance cases, breach of a loan agreement (provided the damages are sufficiently foreseeable)
When are emotional distress damages available in contract?
When the law treats the breach of contract like a tort, such as:
* Insurance bad-faith cases
* In cases where emotional distress damage is particularly foreseeable
Procedural Unconscionability v. Substantive Unconscionability
Procedural Unconscionability: Claims look at how the clause was presented to the party. A one-sided remedies provision buried in the fine print of an adhesion contract could be struck down on procedural unconscionability grounds.
Substantive Unconscionability: Claims based on the fairness of the bargain. For example, the California Supreme Court struck down, on substantive unconscionability grounds, a provision in an employment agreement that required employees to arbitrate their wrongful termination claims against the employer, but did not require the employer to arbitrate claims it may have had against the employees.
Define
Liquidated Damages Provisions
Provisions that, in the event of a breach by one of the parties, actually set the amount (or provide some formula or benchmark for setting the amount) of damages to the exclusion of jury-determined damages under the usual rules.
Restatement (2d) of Contracts section 356(1): “Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.”
