Remedies Flashcards
What are general damages?
Aka direct damages
Those that are normally presumed to follow from the wrong
What are special damages?
Aka consequential damages
Those incurred after and in consequence of the primary harm. (Ex: lost use, lost profits) Must be specifically pled!
How can special damages be incurred under contract?
May be recovered if contemplated by the parties
How can special damages be incurred under tort?
May be recovered on proof of “legal” causation
Explain “damage” versus “Damages” versus “Measure of Damages”
damage = harm Damages = the award plaintiff will get MoD = how the amount of recoverable legal Damages will be determined (ex: market value, cost of repairs)
What is the “Lesser of Rule”?
Texas rule that says damages are limited to the lesser of the cost of repairs or the diminution in value
Explain the burden of proof re: Lesser of Rule
Proof of EITHER (1) cost of repair OR (2) market value satisfies Plaintiff’s burden. Then the burden shifts to Defendant to rebut.
Does Texas require you to plead a specific amount of damages? A specific measure of damages? What must you plead?
NO and NO. Must only plead and prove facts that comprise a cause of action.
TX Rule of Civil Procedure 47
An original pleading shall contain: (1) a short statement to give fair notice; (2) damages meet court’s jurisdictional limits; (3) whether the party seeks: 100k or less only, 100k or less and non-monetary relief, over 100k but not more than 200k, over 200k but not more than 1,000k, over 1000k; (4) a demand for all the other relief to which the party deems himself entitled.
Must nominal and exemplary damages be specifically plead? Why?
Yes, because they are considered special damages.
How exact must damages be proven?
With reasonable certainty. Cannot be too uncertain or speculative. Not necessary that damages are susceptible of exact calculation.
What evidence is required to prove compensatory damages?
At a minimum, opinions or estimates must be based on objective facts, figures, or data from which the amount of damages can be ascertained.
What are the requirements to show lost profits for contracts? Torts?
Requires proof of duty, breach and causation that lost profits were: A material and probable consequences within the contemplation of the parties to a contract; Reasonably foreseeable at the time of a tort
What kind of proof is required for lost profits?
Evidence as to what the profit would have been, based on a witness’s knowledge of the cost of performance of each element of the contract and subtracting the total of such costs from the profits.
Ex: ice cream truck is wrecked and takes 10 days to repair – show profits for the 10 days before the wreck, or a 10 day period with similar weather, other similar circumstances
What’s wrong with the pleading: “D’s conduct would prevent P from deriving normal pecuniary reward from its business activities that it otherwise would have been entitled to attain”?
The language is too broad – “normal pecuniary reward” does not mean “lost profits”.
Damages must be measured by a legal standard that guides the fact finder
