Remedies Flashcards
surgery as mitigation
In tort law, whether surgery is required to mitigate damages is a question of fact for the jury. Failure to mitigate damages is an affirmative defense to be asserted and proven by the defendant. To argue that refusal to undergo surgery or other medical treatment constitutes a failure to mitigate, the defendant must prove that a person of ordinary intelligence or prudence under similar circumstances would have undergone the recommended medical procedure. Some commenters have argued that in order to mitigate damages, a plaintiff is required to submit to surgery that is not major, dangerous, or serious. However, Wisconsin law holds that an injured party, in order to recover fully for his damages, is only required to undergo treatments that a reasonable person in the same situation would agree to undergo. Whether a reasonable person would agree to a specific recommended treatment is a question of fact for the jury.
Note – what is considered a dangerous operation in 1935, will be different in 1985. This is a flexible standard.
Religious convictions? – refuse blood transfusion b/c of religion – should damages be disallowed under failure to mitigate? – defendant doesn’t have to PAY – they can use this – we’re not saying that this individual can’t decide to do this but the defendant shouldn’t have to pay for this
Market value – retail vs. wholesale
Market value – retail vs. wholesale
- if a consumer needs to replace something in the market, retail
- if a seller needs to replace something, wholesale
fungible goods
- if a product is truly fungible, that’s where FMV is great
- King Service – barge used as a dry dock platform, chattel used as unique thing, it’s a barge not used in the barge market so you shouldn’t get its value in the barge market, the value should reflect its use – if this market value cannot be ascertained, look at value to the owner in which cost of repair may be more effective
Commingling of Funds
• Dominant approach: Rule of Jessel’s Bag – Note 5 – the first withdrawals from a commingled fund are presumed to belong to the wrongdoer and the remaining balance is subject to the equitable interest asserted by the claimant
o Modified by Note 6, the Oatway Rule – gives the claimant a choice between the assets traceable to the funds drawn out first or those withdrawn from the account at a later time – the plaintiff can take the identifiable product if that’s most advantageous to the plaintiff
o Example of equitable discretion
o No tracing rules should get in the way of the plaintiff getting the money
o Whatever favors the plaintiffs the most is what will be used
Oatway Rule
gives the claimant a choice between the assets traceable to the funds drawn out first or those withdrawn from the account at a later time – the plaintiff can take the identifiable product if that’s most advantageous to the plaintiff
Rule of Jessel’s Bag
the first withdrawals from a commingled fund are presumed to belong to the wrongdoer and the remaining balance is subject to the equitable interest asserted by the claimant
Lesser Lien Theory
- Subsequent/late deposits of D’s own money are not considered as belonging to the plaintiff- this is to protect other creditors
- If you can’t get all of the money you lost, you can get a money judgment for the remainder but you’re in line with the other creditors
Bona Fide Purchaser
This is a defense
• Requires proof that D acquired legal title to the property at issue for value and had no notice of plaintiff’s interest
o Good faith purchaser for value
• Both the P and D are innocent
• Not unjust for a bona fide purchaser to retain title
• Tracing does not function if the person is a bona fide purchaser
Change in position
Defense to a claim of restitution
• A court may deny a restitutionary remedy if the defendant would be adversely affected by virtue of circumstances which have materially changed after receipt of the benefit
• Example: person mistakenly delivers goods to another under circumstances which would constitute unjust enrichment. Ordinarily the recipient would be required to make restitution but if the goods are subsequently destroyed by fire, and the recipient was not more at fault than the claimant for the loss, a court would properly decline to order restitution
What are defenses to restitution
change in position, bona fide purchaser
volunteer?
Did P know about the improvements D was making? Did the person expect money? Is this something that you could have made a contract for? Could D have refused the benefits?
expectancy damages
put P in the position had the contract been performed
1983 claim + nominal damages
• In an action under 42 U.S.C. § 1983 for the deprivation of procedural due process, the plaintiff must prove that he actually was injured by the deprivation before he may recover more than nominal damages.
Requirements for Declaratory Judgment
• is there Subject matter jurisdiction – federal declaratory act doesn’t allow you to answer the question •is there a case or controversy Is there Sufficient immediacy – not yet ripe, you must show you need it NOW Prudential considerations (totality of circumstances)
o If it looks like they’re just trying to get a litigation advantage, this is an improper use of declaratory judgment
*you don’t want to get involved in a state action
how to show something is not ripe for a
delay in communication between parties, no suit between two parties – court may say renew your request later
economic loss rule for products liability
-no tort liability where product does not cause physical harm to a person or to “other property” (other than the product itself)
economic loss rule
Under the economic loss rule, a plaintiff may not recover damages for economic losses from a stranger defendant when the D’s tortious action causes economic loss only rather than injury to the plaintiff’s person or property.
-provides predictability in an otherwise uncertain area of law and places a reasonable limit on the tortfeasor’s liability
*The defendant does not have a duty to protect the defendant from strict economic harm
Integrated Part Rule
• R 3rd of Torts: Where one component part of a product damages the entire product (engine in a car that flames out and car burns up) the rest of the car is not considered other property
o You don’t separate the component parts
o You can’t say because the engine burned the seats that you have a tort case - instead this is a warranty claim
• BUT: If a component part is added later to existing project, that IS other property
o Is the component part being sold as part of the same deal?
o Look at the scope of the contract of sale
Other approach
“disappointed expectations” – whether the risk of damage was within the scope of the bargain. If damage was within the scope of bargain (could have been in negotiations) then the damage is recoverable only on a contract theory not a torts theory. Is product reasonably expected to affect other property? If so, you can’t seek tort damages on damage to this property.
suing for pure economic loss under negligence generally
- no tort liability for pure economic harm (i.e. no physical injury to person or property)
- exceptions
Special relationship triggers a duty where one would not otherwise exist
• Negligent misrepresentation – special relationship
• Lawyer-client
• Notary-public
• Common characteristics: D with special training and particular knowledge that people would be harmed by negligent conduct
• Foreseeability alone can’t trigger a duty — aguilar + socal gas
o We begin from proposition that there is no duty
Restitution: Mistake
People are generally entitled to rescission and restitution where there is a contract implied by mutual mistake, which is in substance the same as unjust enrichment.
A person is not entitled to rescind a transaction if he agreed to assume the risk of a mistake for which he would otherwise be entitled to rescission and restitution. The justification for allowing restitution based on mistake is that the agreement otherwise would no accurately reflect the true intentions of the parties.
Equitable CLean up
If judge decides that equitable claims/remedies/issues predominate
Jury does nothing
The judge “cleans up” the legal matters
If judge decides that legal claims/remedies/issues predominate:
Jury available for only those (legal) matters
Jurisdictional split on the order
Jury first, judge second or
Judge first, jury second
Remember:
mixed cases - federal
Jury first, judge second
Maximum protection of jury trial rights
Judge bound by jury’s determinations of fact
consequences of remedy characterization
- right to jury
- judicial resources
- enforcement
Traditional Test for Interlocutory Relief
- substantial likelihood of success on the merits
- irreparable harm to P likely, not just possible, if no injunction
- balance of hardships in P’s favor
- public interest does not disfavor grant
Sliding Scale Test
- substantial likelihood of success on the merits
- irreparable harm to P likely, not just possible, if no injunction
- balance of hardships in P’s favor
- public interest does not disfavor grant
Elements 1 & 3 - the less likely P is to prevail on the merits of the underlying claim, the sharper the balance of hardships must tip in P’s favor
Stronger showing on success on the merits can be compensated by a case where maybe the balance of hardships doesn’t tilt in your favor.
Alternative test applies to preliminary injunctions and TROs. Most circuits allow a moving party to prevail under the traditional test or the sliding scale. States that have sliding scale still use the traditional test too.
serious questions test
Ninth Circuit’s “sliding scale” test post-Winter is called the “serious questions” test
a preliminary injunction could issue where the likelihood of success is such that “serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff’s] favor.”
injunction bonds
court may issue a preliminary injunction or TRO only if movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party. U.S. government does not pay security (they make good, so probably don’t need to)
Additional Considerations in Nuisance cases
- Court can consider that maybe a technology change could occur and the nuisance may end at same point.
- Court will also consider compliance with zoning or regulations
- courts can consider order of arrival-As noted in Spur Industries v. Del E. Webb (cattle feedlot in Phoenix suburb case), parties order of arrival can serve as a persuasive factor. Court granted injunction forcing feedlot to move, but the developer had to pay for the feedlot to move. This is because of the feedlot was there before the development.
What must plaintiff prove to get a permanent injunction?
- Actual Success on the Merits of the Substantive Claim
- Inadequate Legal Remedies
- Irreparable Harm - serious, not trivial
- Balance of Hardships / Balance of Equities Favors Grant of Injunctive Relief
- Public Interest Does not Disfavor Grant of the Injunction
How to show a legal remedy is inadequate?
Couldn’t achieve desired outcome.
Conduct of D repeats – so would end up creating multiple legal actions over time (expensive and time consuming)
Calculating damages would be too speculative
Undefined “special circumstances” - Loss of constitutional rights or where real property is involved (not chattel). Often argued that it cannot be measured properly in dollars.
Public Interest Does not Disfavor Grant of the Injunction
Courts cannot offer an assertion of the public interest contrary to the will of the legislature
Look at the effect of the injunction on non-litigant parties
Differences between TROs and Preliminary Injunctions: Appealability
Grant or denial of TRO is NOT appealable, while preliminary injunctions are appealable, by either side.
Standard of Review is abuse of discretion
Differences between TROs and Preliminary Injunctions: Notice
NOTICE: Notice is required for preliminary injunctions; None is required for TRO to be granted (although once granted notice should be given)
The hearing can be very flexible for preliminary injunctions. A hearing, with witnesses etc., needs to be held because of the presence of factual disputes that needed to be resolved. If factual disputes are simple or not significant, a hearing just on the papers, meaning without witnesses, may be appropriate. Required of courts under FRCP 52.
You can get a TRO ex parte (meaning without notification to the other side). Not true for preliminary injunction, both parties have to be able to show their case in adversarial setting.
when can a TRO be granted ex parte
TROs can only be granted ex parte
-upon specific showing that immediate and irreparable harm will result before the opposing party could be notified and heard.
Ex parte injunctive relief is common in three situations:
Where identity of adverse party is unknown or because a party cannot be located in time for a hearing
Where plaintiff would face irreparable harm so immediate it would be improper to wait until the defendant was notified and given an opportunity to be heard
A narrow band of cases where notice to the defendant would undermine the plaintiff’s action
What kinds of facts to show ex parte would be appropriate (where giving notice upsets status quo)?
A genuine showing the adverse party would destroy evidence.
Domestic violence restraining orders – giving notice could cause violence or death.
purpose of TRO vs. purpose of preliminary injunction
TROs purpose is to preserve the case/the status quo until there is a hearing on the preliminary. The preliminary injunction is aimed at preserving the status quo until the final trial on the merits.
Ex parte TRO’s and the First Amendment
Usually cannot get an ex parte TRO when free speech rights, even involving hateful speech, are implicated
There can be no greater restraint on speech than is necessary
The injunction needs to be narrowly tailored
No ex parte TRO if it involves free speech rights – D must be
(1) Present at the hearing; and
(2) Have received formal or informal notice
Factors in determining bond amount
(1) Predicted harm to enjoined party if injunction turns out to be wrongfully issued
(2) Likelihood of success on the merits
The more likely movant is to succeed on the merits 🡪 the lower the bond amount has to be
Recovery of damages on the bond
- There is a presumption in favor of recovery by D when an injunction is found to be wrongfully issued
- Even given the presumption of recovery, a D seeking damages on the bond after a wrongfully issued injunction does not automatically get the bond amount
- Non-movant has to prove the amount of damages proximately caused
- Must show damages to a reasonable certainty
-Vast Majority: Damages are capped at the bond amount
Pre-Appeal INjunctive Relief Test
(1) Likelihood of success on the merits of the appeal
(2) Movant will suffer irreparable harm
(3) Balance of hardships
Hardship to party moving for the pre-appeal relief if it is not granted vs. hardship to the non-movant if the pre-appeal relief is granted
(4) Public interest
The difference is the time frame
Automatic stay of an injunction
FEDERAL: NO
CA:
If mandatory injunction (that order somebody to affirmatively do something) automatic stay upon filing a notice of appeal
If prohibitory injunction (that prohibits certain conduct) 🡪 no automatic stay 🡪 non-movant must seek it
Automatic grant of Injunction Pending Appeal
Federal and state court: No
Party has to ask for it
Collateral Bar Rule
D cannot collaterally attack the validity of the underlying injunction as a means of escaping contempt; Does not apply to civil contempt sanctions, because an attack on the underlying injunction there is a direct, rather than collateral, attack on the underlying injunction
Requirements for Direct Criminal Contempt
A certificate signed by the judge that:
(1) Lists the facts of the event;
(2) certifies that the judge saw or heard the conduct constituting the contempt; and
(3) that it was committed in the actual presence of the court
*Federal – narrow presence requirement
*State (Daniels)– broad presence requirement
expanded the term’s definition to include instances where judge didn’t see everything, but saw and heard “enough”
jury trial rights - direct criminal contempt
No, as long as judge puts the party in direct criminal contempt on the spot
Jury trial right attaches if contempt sanction issued at a later date than the offense
procedure used in direct criminal contempt
Summary: Judge can hold D in contempt in a summary fashion without notice, opportunity to be heard and call witnesses
indirect criminal contempt jury rights
Yes, if sanction is “serious”
If jail sentence exceeds six months
