Tort Remedies

Question 1

Legal Remedies

Answer 1

Legal damages are a legal remedy awarded to make a π whole

Question 2

Damages

Answer 2

Compensatory
Nominal
Punitive

Question 3

Legal Restitution

Answer 3

Legal restitution is appropriate where the ∆ has derived a benefit, or been unjustly enriched, and it would be unfair to allow the ∆ to keep that benefit w/o compensating the π or where the π wants his prop back

Money
Replevin
Ejectment

Question 4

Equitable Restitution

Answer 4

Equitable resti is only avail when the remedy at law, money damages, is inadequate.

Constructive Trust
Equitable Lien

Question 5

Injunction

Answer 5

Injunction is an equitable remedy where the ct orders one to perf an act or stop perf an act.

TRO
Prelim injunction
Permanent injunction

Question 6

Compensatory Damages

Answer 6

Compensatory damages are awarded to compensate the π for injury or loss. They’re measured by the monetary value of the π’s harm. There are 2 types of comp damages in tort:

(1) Gen damages are nonecon losses directly attributable to the tort that all πs would have bc they flow as a natural result of the tort.
(2) Special damages are econ losses directly attributable to the tort some π’s may have and are unique to each π. Pure econ loss is not recoverable for most torts, absent a showing of prop loss or PI.

Question 7

Nominal Damages

Answer 7

Nominal damages are awarded where π’s rights have been vio but π sustained no loss

Question 8

Punitive Damages

Answer 8

Punitive damages are awarded where the ∆ has displayed willful, wanton, or malicious tortious conduct and only awarded if actual damages are awarded and culpability greater than neg.

Question 9

Money Restitution

Answer 9

Money resti is a legal remedy where the π is awarded the monetary value of the benefit rec’d by the ∆. Π can elect to recover comp or money resti, but not both.

Question 10

Replevin

Answer 10

Replevin allows the recovery, before trial of a specific chattel wrongfully taken from π, who has the right of possession. Prop ordered returned and π can rec damages for time deprived of chattel.

Question 11

Ejectment

Answer 11

Ejectment is used to recover specific real prop from which a π who has the right to possession was wrongfully excluded.

Question 12

Constructive Trust

Answer 12

Constructive T is a legal fiction created by a ct to compel the ∆ to convey title to unjustly retained specific prop to the π and restores the prop to the π that has been wrongfully acq by ∆. Const T reqs a wrongful act; ∆ has legal title to convey; inadequate legal remedy; and prop can be traced.

Question 13

Equitable Lien

Answer 13

Equit lien creates a security interest in prop held by the ∆. Here, the prop acts as collateral for the money owed to the π. EL reqs a wrongful act; legal title; inadequate legal remedy; prop can be traced; and deficiency judgments are allowed.

Question 14

TRO

Answer 14

TRO are designed to preserve the status quo for a short time pending further lit re a prelim inj. TROs are granted for only a short time, notice req’d but can be ex parte in certain circ. TRO reqs:

(1) irrep harm,
(2) likelihood of success on the merits,
(3) inadequate legal remedy,
(4) balancing of hardships must favor π, and
(5) no defenses are available.

Question 15

Preliminary Injunction

Answer 15

Prelim inj are designed to preserve the SQ pending a full trial on the merits. Reqs same as TRO

Question 16

Permanent Injunction

Answer 16

Perm inj is where a ct orders one to perf an act or stop perf an act after holding a full trial on the merits. Perm inj reqs:

(1) inad legal remedy;
(2) prop interest;
(3) feasibility of enforcement: inj cannot be too diff for ct to enforce;
(4) balancing of hardships must favor π; and
(5) no defenses.

Question 17

Balancing of Hardships: Permanent Injunction

Answer 17

The ct will weigh the hardship to πif the ind is denied against the hardship to ∆ if the ind is granted. Ct will also consider:

(1) A large disparity in hardships weighs in favor of the more severely impacted party.
(2) Willful misconduct weighs heavily against the wrongdoer.
(3) The hardship to the public and/or any public benefit.

Question 18

Laches

Answer 18

To prevail on the defense of laches, the ∆ must show that the πhas unreasonably delayed, resulting in prejudice to the ∆. Laches begins to run from the time the πhas knowledge that a right has been infringed.

Question 19

Coming to the Nuisance

Answer 19

A party cannot defend against an injunction on the basis that πcame to the nuisance.

Question 20

Feasibility

Answer 20

Negative ind poses no feasibility problems bc the ct can simply hold the ∆in contempt if it fails to refrain from engaging in certain activities.

Mandatory ind, however, pose feasibility problems. Since the ∆ is ordered to do an affirmative act, the ct must supervise the order to make sure the act is done properly.