Tort Remedies

Question 1

Compensatory Tort Damage Definition and Requirements

Answer 1

Definition: compensation for loss or injury to P
Requirements:
1. Actual Cause
2. Foreseeability
3. Certainty (past damages must be more certain; future damages must be more likely than not)
4. Unavoidability

Question 2

Judgment for Compensatory Tort Damages Language to Memorize

Answer 2

Must be a single lump sum payment discounted to present value without taking inflation into account except under the more modern rule

Question 3

Nominal Tort Damages

Answer 3

Where P had no actual injury

Question 4

Punitive Tort Damage Requirements

Answer 4

1. Cannot stand alone
2. Based on Willful, Wanton, or Malicious Conduct
3. Awarded proportionate to actual damages (no more than 10x)
4. No violation of due process as grossly excessive based on (i) D’s conduct, (ii) disparity between harm and award; (iii) difference b/w punitive damages and civil/criminal penalties

Question 5

Can P get both Compensatory and Restiuttionary Damages

Answer 5

NO –> give P larger amount

Question 6

Replevin Definition and Requirements

Answer 6

Definition: Recovery of Personal Property
Requirements:
1. Right to Possession by P
2. Wrongful Witholding by D

Question 7

Replevin . . . Additional Considerations

Answer 7

Repossession conducted by Sheriff
If P seeks return prior to trial, P must post bond
-D can defeat bond by posting a redelivery bond

Question 8

Ejectment Requirements and Definition

Answer 8

Definition: Recovery of Personal Property
Requirements:
1. Right to possession held by P
2. Wrongful Withholding by D
NOTE: Conducted by Sheriff

Question 9

General Rules of Equitable Restitution in Tort

Answer 9

-D has title
-Legal Remedy Inadequate
-Tracing is allowed
-BFP’s prevail over P
-P prevails over unsecured creditors

Question 10

Equitable Liens

Answer 10

1. D has misappropriated P’s property or improved property he already owns using money/property wrongfull obtained
2. D holds title to the wrongfully obtained property
3. Wrongfully obtained property is traceable to P
   EFFECT: P obtains lien on property **and any deficiency judgment **

Question 11

Constructive Trust

Answer 11

1. D has title to the property
2. D’s retention would result in unjust enrichment
3. P has traceable right to the property
4. P has no adequate remedy at law
5. EFFECT: Equity creates a “trust” where D serves as trustee and must return property to P

Question 12

Choosing an Equitable Lien or a Constructive Trust Remedy

Answer 12

Property value increases: should choose constructive trust
Property value decreases: should choose equitable lien
Property not traceable solely to P: must choose equitable lien

Question 13

Inadequacy of Tort Legal Remedies

Answer 13

Replevin: inadequate if unique
Ejectment: inaadequate if unique or sheriff refuses to act
Money Damages:
1. Too Speculative?
2. Insolvency?
3. Irreperable Injury?
4. Multiplicity of Actions likely given history litigation b/w parties?