Tort Remedies Flashcards
What is required for a Preliminary Injunction?
- IRREPARABLE Injury
(weighed against harm to D; make sure harm to D not»_space; benefit to P) - LIKELIHOOD of Prevailing
Issued to preserve the status quo
What is required for a Permanent Injunction?
- Legal Remedies Inadequate
- Feasibility
- Balancing of the Hardships
- No Defenses
(Laches, Unclean Hands, Freedom of Speech, Criminal Act)
LFBD
What is the purpose of a preliminary injunction?
To preserve the status quo.
What is the Tort REMEDY for Destroyed Property?
Compensatory Damages
What is the Tort REMEDY for Damaged Property?
Compensatory Damages
What is the Tort REMEDY for Dispossession of Personal Property?
Compensatory Damages Restitutionary Damages Replevin Mandatory Injunction (if unique and replevin won't work) Constructive Trust Equitable Lien Self-Help (R force only)
What are the LEGAL REMEDIES in Tort?
Damages: Money
Restitution: Replevin, Ejectment
What are the EQUITABLE REMEDIES in Tort?
Restitution:
Constructive Trust
Equitable Lien
Injunction
What is a CONSTRUCTIVE TRUST?
court-imposed OBLIGATION on the D to CONVEY specific property to the P.
What is an EQUITABLE LIEN?
court-imposed SECURITY INTEREST in specific property owned by the D.
What is an INJUNCTION?
Negative or mandatory order from the court.
What Damages are available in Tort?
Actual Damages
General Damages
Special Damages
Nominal Damages
Punitive DamagesWhat are the guidelines for Punitive Damages?
Do not compensate for actual injury suffered by P.
Must be some PROPORTIONALITY between actual/ nominal damages and punitive damages
Wealthy D’s pay more than poor D’s.
What are RESTITUTION REMEDIES (define)?
Compensate for benefit unjustly retained by the D.
For what type of remedy does there NOT NEED TO BE ANY INJURY to P?
Restitution.
What are the RESTITUTION REMEDIES – Legal?
1 Money
2 Replevin
3 Ejectment
What are the RESTITUTION REMEDIES – Equitable?
- Constructive Trust
2. Equitable Lien
What are the elements of a CONSTRUCTIVE TRUST?
- Defendant has TITLE to the property
- Acquisition of title due to D’s WRONGDOING
- D’s retention of property would result in UNJUST ENRICHMENT
- inadequate LEGAL REMEDY
TWUL
Twins Wrongfully Underestimate the Law
What are the elements of an EQUITABLE LIEN?
- Defendant has TITLE
- Acquisition of title due to D’s WRONGDOING
- D’s retention of property would result in UNJUST ENRICHMENT
Twins Wrongfully Underestimate
Which can be used when D has merely IMPROVED OTHER PROPERTY WITH P’S PROPERTY – Constructive Trust or Equitable Lien?
Equitable Lien.
Up to what amount can a Constructive Trust be enforced?
The ENHANCED VALUE of the property
Up to what amount can an Equitable Lien be enforced?
Only up to the AMOUNT OF P’S CLAIM.
Not the enhanced value of the property.
If P’s property has not been used to acquire title, which one can be used: Equitable Lien or Constructive Trust?
Equitable Lien.
When will an Equitable Lien be cut off?
When there is a transfer to a BFP.
When may a TRO be issued?
After notice and a hearing, or
Ex parte if sufficient showing of urgency
When may a Preliminary Injunction be issued?
After notice and a hearing (adversary must be present).
When is Balancing of the Hardships especially likely (wrt Injunction)?
- Encroachment (yes if unintentional – innocent or negligent – tho court favors P seeking removal of encroachment);
- Nuisance (always in PRIVATE Nuisance)
What are defenses to an Injunction being issued?
Laches
Unclean Hands
Freedom of Speech (no prior restraint)
Exceptions: national security, trade libel
Criminal Act
Exceptions: public nuisance
crime that also is a tort (partial except)
What is a Public Nuisance?
Use of property so as to endanger public health and welfare
Which is appropriate when P can specifically identify and TRACE her stolen property to the D: Constructive Trust or Equitable Lien?
Constructive Trust
Which is appropriate where D COMMINGLES the funds he misappropriated from P with others: Constructive Trust or Equitable Lien?
How much can be recovered?
Equitable Lien.
Lien is limited to the lowest intermediate balance where the balance sinks below P’s claim.
For which – Rescission or Reformation – must there have been a valid contract?
Reformation
What is the Remedy for VOLUNTARY WASTE?
Damages, measured by:
Diminution in value of land, or
Cost of repair
Injunction also appropriate
(What “Voluntary Waste” is: DELIBERATE destructive acts)
What is the Remedy for PERMISSIVE WASTE?
Damages:
Cost of repair
No Injunctive Relief (supervision problems)
(What “Permissive Waste” is: where premises are allowed to fall into state of DISREPAIR)
What is the Remedy for AMELIORATIVE WASTE?
No Damages
Injunction (only if D is short-term tenant)
(What “Ameliorative Waste” is: where alterations made INCREASE the land’s value)
What is the Remedy for EQUITABLE WASTE?
No Damages
Injunction to prevent change (e.g. to prevent mortgagor from impairing security of mortgage)
(What “Equitable Waste” is: those not chargeable with legal waste effect material changes to the premises.)
What is the Remedy for NUISANCE?
Damages:
Loss of use and enjoyment
Costs of abatement
Emotional Distress, etc
(possibly permanent diminution in value --
"permanent nuisance doctrine")
Injunction – damages usually inadequate; NO BALANCING OF HARDSHIPS bc nuisance is generally intentional.
What is a “conditional decree” and when is it used?
Denial of injunction – e.g., conditioned on D adopting abatement procedures.
May be used for Nuisance
When is it appropriate for a private person to bring a PUBLIC NUISANCE claim?
When he suffers a unique damage not suffered by the rest of the general public.
