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REMEDIES > Tort Remedies > Flashcards

Tort Remedies Flashcards

1
Q

What is required for a Preliminary Injunction?

A
  1. IRREPARABLE Injury
    (weighed against harm to D; make sure harm to D not&raquo_space; benefit to P)
  2. LIKELIHOOD of Prevailing

Issued to preserve the status quo

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2
Q

What is required for a Permanent Injunction?

A
  1. Legal Remedies Inadequate
  2. Feasibility
  3. Balancing of the Hardships
  4. No Defenses
    (Laches, Unclean Hands, Freedom of Speech, Criminal Act)

LFBD

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3
Q

What is the purpose of a preliminary injunction?

A

To preserve the status quo.

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4
Q

What is the Tort REMEDY for Destroyed Property?

A

Compensatory Damages

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5
Q

What is the Tort REMEDY for Damaged Property?

A

Compensatory Damages

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6
Q

What is the Tort REMEDY for Dispossession of Personal Property?

A 
Compensatory Damages
Restitutionary Damages
Replevin
Mandatory Injunction (if unique and replevin won't work) 
Constructive Trust
Equitable Lien
Self-Help (R force only)
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7
Q

What are the LEGAL REMEDIES in Tort?

A

Damages: Money
Restitution: Replevin, Ejectment

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8
Q

What are the EQUITABLE REMEDIES in Tort?

A

Restitution:
Constructive Trust
Equitable Lien
Injunction

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9
Q

What is a CONSTRUCTIVE TRUST?

A

court-imposed OBLIGATION on the D to CONVEY specific property to the P.

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10
Q

What is an EQUITABLE LIEN?

A

court-imposed SECURITY INTEREST in specific property owned by the D.

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11
Q

What is an INJUNCTION?

A

Negative or mandatory order from the court.

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12
Q

What Damages are available in Tort?

A 
Actual Damages
    General Damages
    Special Damages
Nominal Damages
Punitive Damages
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13
Q

What are the guidelines for Punitive Damages?

A

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.

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14
Q

What are RESTITUTION REMEDIES (define)?

A

Compensate for benefit unjustly retained by the D.

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15
Q

For what type of remedy does there NOT NEED TO BE ANY INJURY to P?

A

Restitution.

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16
Q

What are the RESTITUTION REMEDIES – Legal?

A

1 Money
2 Replevin
3 Ejectment

17
Q

What are the RESTITUTION REMEDIES – Equitable?

A
  1. Constructive Trust

2. Equitable Lien

18
Q

What are the elements of a CONSTRUCTIVE TRUST?

A
  1. Defendant has TITLE to the property
  2. Acquisition of title due to D’s WRONGDOING
  3. D’s retention of property would result in UNJUST ENRICHMENT
  4. inadequate LEGAL REMEDY

TWUL
Twins Wrongfully Underestimate the Law

19
Q

What are the elements of an EQUITABLE LIEN?

A
  1. Defendant has TITLE
  2. Acquisition of title due to D’s WRONGDOING
  3. D’s retention of property would result in UNJUST ENRICHMENT

Twins Wrongfully Underestimate

20
Q

Which can be used when D has merely IMPROVED OTHER PROPERTY WITH P’S PROPERTY – Constructive Trust or Equitable Lien?

A

Equitable Lien.

21
Q

Up to what amount can a Constructive Trust be enforced?

A

The ENHANCED VALUE of the property

22
Q

Up to what amount can an Equitable Lien be enforced?

A

Only up to the AMOUNT OF P’S CLAIM.

Not the enhanced value of the property.

23
Q

If P’s property has not been used to acquire title, which one can be used: Equitable Lien or Constructive Trust?

A

Equitable Lien.

24
Q

When will an Equitable Lien be cut off?

A

When there is a transfer to a BFP.

25
Q

When may a TRO be issued?

A

After notice and a hearing, or

Ex parte if sufficient showing of urgency

26
Q

When may a Preliminary Injunction be issued?

A

After notice and a hearing (adversary must be present).

27
Q

When is Balancing of the Hardships especially likely (wrt Injunction)?

A
  1. Encroachment (yes if unintentional – innocent or negligent – tho court favors P seeking removal of encroachment);
  2. Nuisance (always in PRIVATE Nuisance)
28
Q

What are defenses to an Injunction being issued?

A

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)

29
Q

What is a Public Nuisance?

A

Use of property so as to endanger public health and welfare

30
Q

Which is appropriate when P can specifically identify and TRACE her stolen property to the D: Constructive Trust or Equitable Lien?

A

Constructive Trust

31
Q

Which is appropriate where D COMMINGLES the funds he misappropriated from P with others: Constructive Trust or Equitable Lien?

How much can be recovered?

A

Equitable Lien.

Lien is limited to the lowest intermediate balance where the balance sinks below P’s claim.

32
Q

For which – Rescission or Reformation – must there have been a valid contract?

A

Reformation

33
Q

What is the Remedy for VOLUNTARY WASTE?

A

Damages, measured by:
Diminution in value of land, or
Cost of repair

Injunction also appropriate

(What “Voluntary Waste” is: DELIBERATE destructive acts)

34
Q

What is the Remedy for PERMISSIVE WASTE?

A

Damages:
Cost of repair

No Injunctive Relief (supervision problems)

(What “Permissive Waste” is: where premises are allowed to fall into state of DISREPAIR)

35
Q

What is the Remedy for AMELIORATIVE WASTE?

A

No Damages

Injunction (only if D is short-term tenant)

(What “Ameliorative Waste” is: where alterations made INCREASE the land’s value)

36
Q

What is the Remedy for EQUITABLE WASTE?

A

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.)

37
Q

What is the Remedy for NUISANCE?

A 
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.

38
Q

What is a “conditional decree” and when is it used?

A

Denial of injunction – e.g., conditioned on D adopting abatement procedures.

May be used for Nuisance

39
Q

When is it appropriate for a private person to bring a PUBLIC NUISANCE claim?

A

When he suffers a unique damage not suffered by the rest of the general public.

REMEDIES (4 decks)

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