Remedies Final Flashcards
1
Q
Death claims
A
Survival action and wrongful death
2
Q
Survival Action
A
- P must be decedent’s estate
- Subject to claims from decedent’s
creditors - Damages up until time of death like
Pain and suffering
Medical expenses
Lost wages
3
Q
Wrongful Death
A
- P must be decedent’s spouse or
next of kin - Not subject to decedent’s creditors
- Damages past, present, and future
like:
Medical expenses
Funeral and burial costs
Loss of support (future income)
Loss of consortium
(companionship)
4
Q
Negligence
A
- Duty
- Breach
- Causation
- Damages
5
Q
Types of harm to personal property
A
Trespass to chattel and conversion
6
Q
Trespass to chattel
A
- Intentional
Intent to do the act
Mistake of ownership not a
defense
Transferred intent permitted - Interference with P’s use or
possession of chattel
P can’t use or /possess chattel
OR chattel is actually harmed
7
Q
Conversion
A
- Intentional
Intent to do the act
Mistake of ownership not a
defense
Transferred not permitted - Substantial interference with P’s
use or possession of chattel
Severity, duration, and/or extent of
harm warrants D paying for the
full value of the chattel
8
Q
Types of harm to real property
A
- Physical injury to land, structure on
land, attachment to land (trees,
crops) - Possessory invasion (using,
entering, occupying, or taking w/o
authorization) - Interference w/ use and enjoyment
9
Q
Physical injury to real property
A
- Trespass to land (encroachment for
structure invading)- Intentional
Desire and purpose to invade
land
Mistake as to land ownership
not a defense
Physical invasion
No harm required, just
interference w/ exclusive
possession, including entry w/o
permission, remaining on land
w/o right to be there, or
placing/projecting object on
land w/o permission
Of another’s land
- Intentional
- Trespass to chattels/conversion
(including severance)
10
Q
Damages for physical injury to real property
A
- Lesser of diminution in FMV OR
reasonable repair costs + loss of
use
UNLESS P has personal reason to
repair
AND repair costs are reasonable in
light of property’s value before the
injury and the actual damages
sustained
11
Q
Possessory invasion
A
- Trespass to land (including
encroachment) - Trespass to chattels/conversion
(including severance)
12
Q
Damages for possessory invasion of real property
A
- Trespass
Single – Nominal
More significant – rental value of
land - Encroachment
Temporary – cost to remove +
restore + loss of use
Permanent – diminution of FMV - PLUS
Consequential damages (like loss
of profits)
Punitive if denied permission but
trespassed anyways
13
Q
Interference w/ use and enjoyment
A
Nuisance (private and public)
14
Q
Private Nuisance
A
- Substantial
Offensive, inconvenient, or
annoying to the average person in
the community - Unreasonable interference
Harm to P outweighs utility of D’s
conduct
OR harm to P is greater than P
should be required to bear w/o
consideration
Factors include
Neighborhood, value, and
alts for D - With a private individual’s use or enjoyment of their land
15
Q
Public Nuisance
A
- Substantial
- Unreasonable interference
- W/ health, morals, welfare, safety,
and property rights of the
community
Factors include
Location, frequency, duration,
degree of damage, and social
value of activity - Private party can recover if suffered
damage different in kind (not just
degree) from what public suffered
16
Q
Defenses to nuisance
A
- Legislative authority (like zoning) –
persuasive, not an absolute defense - “Coming to the nuisance” – a factor,
not an absolute defense
17
Q
Damages for interference w/ use and enjoyment of real property
A
- Temporary
Cost of repair/remediation
OR diminished rental value + loss
of use + damages for discomfort
or annoyance - Permanent – if cost of
restoring/repairing exceeds
diminution or no way to
control/remedy the problem
Diminution + any consequential
damages
18
Q
Defenses for torts
A
- Causation – actual cause = “but-for”
- Foreseeability – Proximate cause =
type of harm was reasonably
foreseeable
NOT extent of harm – Eggshell
(take as you find) - Certainty – Proven and calculated
w/ reasonable certainty - Unavoidability/Duty to mitigate – P
takes reasonable and timely steps
to mitigate
Reasonable cost of repair
Less than FMV before damage
Or less than diminution
19
Q
All Real property damages
A
Considered unique so legal damages usually considered inadequate (see equitable remedies)
20
Q
What is a general limitation on recovery?
A
No double damages
21
Q
Valuation formula for property destroyed or converted
A
FMV
* Value at time of harm
+ Ensuing loss like loss of profits or
loss of use
- Scrap/Salvage value
Fluctuating Market
* Highest MV b/w injury and time of trial + interest
ALT
* Actual value to owner, NOT sentimental value
22
Q
Valuation formula for damaged property
A
Diminution in value OR reasonable cost of repair
+ Ensuing loss like loss of profits or
loss of use
- Damages reasonably avoided
23
Q
Lost income
A
- Lost wages (usually for temporary
injuries) - Lost/diminished earning capacity
(usually for permanent injuries)
24
Q
Future losses
A
- Recoverable if preponderance of
evidence and reasonable certainty
$ must be discounted from
present value and account for
inflation
Includes:
Loss of use
Lost profits
25
Q
Loss of use
A
- P must prove
Needed the property
Prevented from using the D’s
actions
26
Q
Lost profits
A
- P must prove
Property was used to create
income
Consider factors like:
Likelihood of success of
business/transaction (business
conditions, similar transactions,
expert testimony, etc)
Look out for foreseeability
and certainty limitations
27
Q
Pure economic loss w/o physical harm
A
- No pure economic loss w/o physical
harm
UNLESS
Intentional tort
Professional malpractice
28
Q
Nominal
A
- When no actual damages
BUT not if damages are required
for claim
29
Q
Punitive
A
- Compensatory/nominal required
first - Willful conduct (malice, oppression,
or fraud) - Key factors
Character of D’s act (req
deterrence or punishment)
Nature and extent of harm to P
Wealth of D - Proportionality factors and 9 to 1
ratio
30
Q
Restitution/Unjust Enrichment
A
- Alternative to damages when
inadequate or when other types of
relief are unavailable - Restitution is available regardless of
why D was unjustly enriched - The more conscious wrongdoing, the more likely D will have to disgorge all gains/profits
31
Q
When enrichment is NOT unjust and when entitled to restitution anyways
A
- Not unjust when
P voluntarily confers benefit
(officious benefit or good
Samaritan)
BUT P is entitled to restitution
when
D exercised a meaningful
choice to accept the benefit
from P
OR D is in an emergency
situation and
Benefit conferred from P was
necessary to prevent D from
serious bodily harm or pain
P intended to charge
P did not have a reason to
know D would not consent
D’s consent was impossible
(unconscious, a minor, etc)
32
Q
Legal restitution options
A
- Money
- Replevin – property + loss of profits
- Ejectment – returning real property
+ damages for harm + damages for
lost rental value/loss of use +
damages for mesne profits
If seeking mesne profits, a good-
faith D is entitled to credit for
value of any improvements D
made to the property
33
Q
Equitable restitution options
A
- Constructive trust
- Equitable lien
- Purchase-money resulting trust
- Subrogation
34
Q
Constructive trust
A
- D did not agree to hold assets on
behalf of P, but unjustly enriched,
so ct construes D as holding in trust
of P and order conveyance of title
to P - P entitled to the ENTIRE res
- If property value bigger than D’s
unjust enrichment, P gets to keep
any increase - If property value less than D’s
unjust enrichment, P gets only the
property at whatever its worth - Preferred when property value has
INCREASED
35
Q
Equitable Lien
A
- Only when P is entitled to a
PORTION of the res - If property value bigger than D’s
unjust enrichment, P can get a
deficiency ($) judgment for amount
left owed - Preferred when property value has
DECREASED
36
Q
Constructive trust/Equitable lien requirements
A
- D holds title to res
(property/money) - But it rightfully belongs to P bc
traced to D’s wrongdoing
Tracing when commingled into a
bank account
P gets maximum benefit
Assumption D spends own $
first
Unless $ used to purchase
new res and makes
profits, then assumed P’s
$ used
LIMITATION – lowest
intermediate balance rule
When $ in account falls
below amount traceable to P,
$ gone and cannot be
replenished
LIMITATION – if res transferred to
a bona fide purchaser
For value
AND w/o actual or constructive
notice of P’s interest, P may not
enforce - D keeping it – unjust enrichment
37
Q
Purchase-money resulting trust
A
- P pays $ to purchase property
- Title to property not put in P’s
name, but D’s - P did not intend for D to become
sole owner (so ct will imply D
holding for P)
38
Q
Subrogation
A
- P (subrogee) can stand in place of
D’s creditor /lienholder and recover
from D when
P paid D’s debt to
creditor/lienholder
P was not primarily liable for the
debt
P did not voluntarily pay the debt
and payment protects P’s interests
P paid the entire debt
Allowing P to recover by
subrogation would not cause any
injustice to the rights of others
39
Q
General Equitable/Coercive Remedies
A
- Backed by contempt of ct (fines, jail,
both) - No right to jury trial; ct has
discretion - Mandatory or negative
Cts gen disfavor mandatory bc
harder to enforce
40
Q
Examples of irreparable harm/inadequate legal remedy
A
- $ damages not available
- $ damages inadequate (like health
or safety concern) - Property is unique (ex. Real
property always unique, sometimes
personal items) - D is insolvent
- Replevin or ejectment is impractical
(ex. Item can’t be located or too
difficult for sheriff to eject) - Potential for multiplicity suits
- Abrogation of con rights
- Loss of chance or advantage
- Prospective tort (like imminent
pollution)
