Remedies - Torts

Question 1

Damages

Answer 1

Money the court orders D to pay P
1. Compensatory
2. Nominal
3. Punitive

Question 2

Compensatory Damages

Answer 2

Based on the damage done to P. Award of money to compensate P for loss of injury. Seek to put injured party in position they would have been had injury not occurred.

Question 3

Personal Injury Certainty Rules

Answer 3

Economic Losses (Special Damages)
- basic certainty rules apply, meaning damages must be made with sufficient certainty

Non-Economic Losses (General Damages)
- basic certainty rules do not apply. Jury may award any amount within judge’s instructions

ET: “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 4

Nominal Damages

Answer 4

Nominal damages are often recoverable when no actual injury is sustained. They serve to establish or vindicate P’s rights.
(However, actual injury is required element of certain claims like fraud)

Question 5

Punitive Damages

Answer 5

Punitive damages may be awarded to punish D for willful, wanton or malicious conduct. Generally limited to intentional torts, although may be recoverable for reckless misconduct.

Question 6

Restitutionary Remedies

Answer 6

Restitutionary remedies may be legal or equitable and are alternative to comp damages where D obtained a benefit (unjust enrichment). Objective is to restore D’s unjust gain to P.
- Pays P the reasonable value of benefit unjustly obtained.

ET: write about both compensatory and restitutionary damages and award P the higher amount

Question 7

Replevin

Answer 7

Replevin is legal remedy that permits P to recover before trial, possession of specific chattel wrongfully taken. Judicial hearing is generally required to make prejudgment seizure valid.
P must establish:
1. P has right to possession and
2. there is wrongful withholding by D.

ET: P will have to post bond when chattel is returned. D can defeat immediate recovery by posting a redelivery bond.

Question 8

Ejectment

Answer 8

Ejectment is a legal remedy to restore possession of real property from which P was wrongfully ousted.
P must establish:
1. P has right to possession and
2. There is a wrongful withholding by D.

ET: available only against D with possession of real property (so not simple trespassing).

Question 9

Constructive Trust

Answer 9

CT is equitable restitutionary remedy imposed on improperly acquired property to which D has title. Equity creates trust and D serves as trustee and must return property to P.

Usual equitable defenses apply (laches, unclean hands, transfer to BFP)

Use when property value goes up

Question 10

Equitable Lien

Answer 10

Lien imposed on D’s property to secure payment of debt owed to P. Property will be subject to immediate court directed sale. If proceeds are less than FMV of property when it was taken, court will grant deficiency judgment.
Requirements:
- D holds title that can be traced

Use when property value goes down

Question 11

Injunction

Answer 11

Available where legal remedy is inadequate. Results in equitable restitutionary remedy when court orders D to make specific restitution. Injunctions can be mandatory or negative (ordering something not be done), preliminary or permanent.

Question 12

Preliminary Injunction

Answer 12

Prelim used to preserve the status quo between the parties until full trial on merits can be held.
- requires notice and bond to secure D’s losses

P must show they are likely to prevail on the merits but will suffer irreparable injury before trial can be held
- injury weighed against D’s hardship

“At issue is whether P can obtain preliminary injunctive relief. To do so, P must meet a 2 part test…”

Question 13

Temporary Restraining Order

Answer 13

Less formal notice required than prelim. Can be granted without notice if moving party can make strong showing why notice should not be required.
- limited to 10 days, 14 in fed court.

Question 14

Inadequacy of Legal Remedy

Answer 14

Why legal remedy may be inadequate:
1. Replevin - sheriff may have difficulty recovering chattel and D can recover by posting bond.
2. Ejectment - sheriff may refuse to act (ex: slight encroachment across property line)
3. Money damages inadequate (usually adequate)
4. Damages highly speculative
5. Irreparable injury (cannot compensate for loss of unique property)
6. Continuing wrong

Question 15

Feasibility of Enforcing the Degree

Answer 15

Court will not issue a decree that would be difficult to supervise. Feasibility largely depends on whether injunction is negative or mandatory.
- Negative: no problems bc court can hold D in contempt if it fails to refrain
- Mandatory: court must supervise D to make sure affirmative act done property.

Question 16

Equitable Defenses

Answer 16

1. Unclean Hands: party seeking relief must not be guilty of any unfair dealing with respect to transaction being sued upon.
2. Laches: unreasonable delay by P in initiating claim that prejudices D. Effect of delay is key. Laches begins to reun once P has knowledge of infringed rights.
3. Impossibility
4. Freedom of Speech (injunction against personal defamations)

Question 17

Injunction Steps

Answer 17

Injunction orders D to refrain from engaging in certain conduct or to perform a particular act. To obtain an injunction:
1. the legal remedy must be inadequate
2. it must be feasible to enforce
3. the court must balance the hardships, and
4. there must not be any defenses

Question 18

Balancing of Hardships

Answer 18

Injunction will only be granted where it operates equitably. Court will perform balancing test to make sure hardship to D or public does not outweigh benefit P may receive from relief sought. If harm to D or public outweighs, P may seek only money damages.

Question 19

Requirements for Damages

Answer 19

To be recoverable:
1. Actual Causation (but-for)
2. Foreseeability (Proximate causation)
3. Certainty (cannot be too speculative)
- past losses have to be estasblished with more certainty than future
- future damages: P must show more liekly to happen than not
4. Unavoidability (P must take reasonable steps to mitigate)

Question 20

Punitive Damages Requirements

Answer 20

1. P must have first been awarded compensatory or nominal damages (also can attach to resitution)
2. D’s type of fault must be greater than negligence
3. Awarded in amount relatively proportionate to actual damages (should not exceed 10 times the comp damages

Question 21

Constructive Trust Requirements

Answer 21

P must show:
1. D has title to the property and D’s acquisition of title can be traced to property
2. D’s retention of property would result in unjust enrichment, and
3. P has no adequate remedy at law (i.e., D is insolvent or property unique)