Remedies- Compensatory Damages

Question 1

On the Bar exam

Answer 1

1. question will use the word remedies or relief, or will state a specific remedy
2. will be incorporated into a tort or K question (sometimes property)
3. remedies have to be discussed in a specific order
   i. legal remedies
   ii. restitutionary remedies
   iii. equitable remedies
4. Steps
   i. What substantive area of law is involved (torts or k OR BOTH)
   ii. What type is at issue (negligence, intentional; landscape, personal services)
   iii. Make sure our π is going to win the case.

Question 2

Tort remedies order

Answer 2

i. legal remedies: damages
ii. legal restitutionary remedies: restitutionary damages, replevin, ejectment
iii. equitable restitutionary remedies: constructive trust, equitable lien
iv. equitable remedies: injunctive relief

Question 3

Damages (Legal Remedies) & three types

Answer 3

1. money the defendant is ordered to pay π

2. three types: compensatory, nominal, punitive

Question 4

Compensatory Damages generally

Answer 4

1. awarded based on damage to plaintiff

2. puts π in the position they would have been in had the injury not occurred

Question 5

Four requirements for Compensatory Damages

Answer 5

factual + proximate cause, certainty, unavoidability

i. actual causation (but-for cause of injury)
ii. proximate causation (foreseeable injury)

iii. certainty (damages cannot be too speculative). BUT FOR PERSONAL INJURY TORTS: economic losses must be shown with certainty, but noneconomic losses (pain and suffering) –> jury can award anything so long as properly instructed
a. past losses have to be established w more certainty than future losses (e.g. hospital bills)
b. historical records help to provide certainty (ex. history of profits for 3 years vs 3 days)
c. all or nothing rule for future damages: π must show the injury is more likely to happen than not (> 50% chance the injury will occur)
i) must show that it’s more likely than not that she would succeed in law school and get a paying job.

iv. unavoidability (damages were unavoidable)
a. π must take reasonable steps to mitigate damages
i) go to doctor immediately vs. Waiting 3 weeks.

Question 6

Personal Injury Torts

Answer 6

1. certainty:
   i. certainty rules apply for economic losses, aka. special damages (ex. medical bills)
   ii. certainty rules do not apply for non-economic losses (ex. pain and suffering)
   a. jury can award any amount as long as it is properly instructed
2. award must be a single lump-sum payment.
   i. award (ex. $1m per year) must be discounted to present value
   ii. on the bar: inflation is not taken into account (modern rule takes inflation into account)
   iii. bar: just write: the judgment must be a single lump sum payment that will be discounted to present value without taking inflation into account (except under the modern rule)

Question 7

Nominal Damages

Answer 7

1. awarded when plaintiff has no actual injury to establish π’s rights (ex. prevent adverse possession)
   i. for example. ∆ keeps walking across easement. Π wants to establish rights.

Question 8

Punitive Damages

Answer 8

1. awarded to punish defendant
2. fault: defendant’s fault must be greater than negligence (since purpose is to deter)
3. cannot stand alone: only available if plaintiff first awarded compensatory or nominal damages (or restitutionary damages)
4. amount: generally awarded in an amount relatively proportionate to actual damages
   i. usually a single digit multiplier, and not exceeding 9x actual damages
   ii. SCOTUS: no more than 9:1 in punitive damages.