Tort Remedies Flashcards
Balancing of Hardships
- Courts will consider all facts related to the matter and their impact, positive or negative.
- Must be gross disparity between defendant’s detriment and plaintiff’s benefit:
Example: Tear down whole house because one inch of it was on plaintiff’s property - Even then no balancing of the hardships if the defendant’s conduct was willful.
- If it’s just negligence and we decide to balance the hardships in whole or in part consider awarding money damages. If we deny injunction to defendant we need to at least give plaintiff money damages.
- Hardship to the public is also taken into account.
Hardships must balance in favor of party granting the preliminary injunction. Irreparable harm requires showing that the harm will occur while waiting for a full trail and therefore plaintiff needs relief now.
Erroneous injunction
Parties subject to an erroneous injunction must obey it until it is modified or ends.
Contempt
Disobeying a court order comes with penalties.
Civil: Used to coerce defendant into obeying the order. This may include fines, and/or imprisonment for lack of payment. If the defendant is imprisoned then they remain incarcerated until they pay the fines.
Criminal: Used to punish defendants. This may include fines, and/or imprisonment. The Constitution protects against overly long sentences.
Injunction Defenses (Tort)
Unclean Hands
Relative Hardship
Contrary to Public Interest
Repetition Unlikely
Impossibility
Interference with Free speech
Erroneous injunction
Laches
Injunctions Against Criminal Prosecution
Criminal Acts (Except Public Nuisance)
Relative Hardship
Despite a proper showing in other respects of right to injunctive aid, if a plaintiff is merely seeking to protect a technical and unsubstantial right, and the issuance of the injunction will bring no actual advantage, it may be refused if it will result in hardship.
Contrary to Public Interest or Statute
Injunctive relief may be denied if the act complained of is found to be in the public interest. As a rule, unless a statute is unconstitutional, injunctive relief will not issue to prevent the execution of a public statute or enforcement of a public statute by law enforcement officers.
Unclean Hands
The plaintiff’s inequitable or improper conduct related to the lawsuit will cut of its right to equitable relief against a defendant.
Impossibility - Injunctive Relief Defense
Carrying out the terms of the injunction is impossible
Erroneous Injunction
Injunction would no longer be granted because law or facts changed.
Laches
An unreasonable delay by the plaintiff in initiating his or her equitable claim that results in prejudice to the defendant. Time starts when plaintiff knows of the injury.
If applicable still consider money damages.
Laches is never greater than the statue of limitations
Repetition Unlikely
An injunction will not issue when, because of a change in circumstance, a repetition of the act complained of is unlikely. Thus, unless evidence shows that the wrongful conduct will probably recur, injunctive relief will be denied if the defendant has voluntarily discontinued the activity.
All Legal Remedies (list)
Money Damages
- Compensatory damages
- General Damages
- Special Damages
- Nominal Damages
- Punitive Damages
*Duty to Mitigate
Compensatory Damages
An award of money damages based on the loss or injury to the plaintiff and are intended to put the plaintiff in the position she/he would have been in if the injury had not occurred. Requires:
1) Causation: Tortious activity caused the injury
2) Foreseeability: Injury must have been foreseeable at the time of the tortious act
3) Unavoidable: Plaintiff could not have avoided the injury. Must take REASONABLE steps to avoid or minimize the damages
4) Certainty: Damages cannot be too speculative.
“Certainty” - Compensatory damages
Damages cannot be too speculative.
- Plaintiff must establish past losses with more certainty than future losses
- Plaintiff must show future losses are more likely to happen than not.
- A historical record helps to provide certainty.
All or nothing rule - Compensatory damages
If future losses are more likely to happen than not then they are awarded, otherwise they cannot be recovered.