Tort Legal Remedies

Question 1

Order of Remedies

Answer 1

Always do it as follows: (1) legal remedies (damages); (20 restitutionary remedies (legal and equitable); and (3) equitable remedies (injunctive relief)

Question 2

Tort legal remedy definition and types

Answer 2

D is ordered to pay money to plaintiff

Types: (1) compensatory; (2) nominal; and (3) punitive

Question 3

Compensatory Damages

Answer 3

An award of money to compensate plaintiff for loss or injury

Must have CAUSATION; FORESEEABILITY; CERTAINTY; and UNAVOIDABILITY

Question 4

General compensatory damages

Answer 4

compensate foreseeable loss (non economic losses, e.g. pain and suffering)

May award any amount. Certainty does not really apply.

Question 5

Special compensatory damages

Answer 5

compensate unforeseeable loss (economic losses, e.g. wage losses and medical expenses)

Must be SPECIFICALLY PLEADED and require sufficient certainty

Question 6

Causation

Answer 6

Actual causation (but for test)

Question 7

Foreseeability

Answer 7

Tested by proximate cause. Injury must have been foreseeable at the tiem fo the tortious act

Question 8

Certainty

Answer 8

Damages cannot be speculative

Past losses require more certainty than future losses. Future damages require plaintiff to show that they’re MORE LIKELY TO HAPPEN THAN NOT (all or nothing rule)

Historical records help provide certainty

Question 9

Unavoidability

Answer 9

P must make reasonable steps to mitigate damages

Ex: must go to a doctor if hurt. can’t wait around.

Question 10

Form of Payment

Answer 10

Installment payment not allowed. Must be single lump sum.

“The Judgment must be a single lump sum payment that will be discounted to present value without taking into account inflation (except under the modern rule).”

Question 11

Nominal Damages

Answer 11

Awarded where P HAS NO ACTUALLY INJURY

Serve to establish or vindicate P’s rights

cannot be awarded when actual damages is a required element in the claim

Question 12

Punitive Damages

Answer 12

Awarded to punish defendant for “willful, wanton, or malicious conduct.” (greater than negligence)

Generally limited to intentional torts

Compensatory or nominal damages are a prerequisite to punitive damages (can also be attached to restitutionary damages)

NOTE: Rule of thumb, no more than ten times compensatory damages, except for particularly egregious conduct