Tort Remedies Flashcards
Topic: Legal damages
Legal remedy awarded to make a plaintiff whole.
Compensatory damages
Awarded to compensate the plaintiff for injury or loss. They are measured by the monetary value of
the plaintiff’s harm.
Potential issues that can limit compensatory damages: Causation
Damages must be caused by the tortious act.
This is actual “but-for” causation analysis.
Potential issues that can limit compensatory damages: Foreseeability
Damages must be foreseeable by a
reasonable person at the time of the tortious act. This is
standard proximate cause foreseeability analysis.
Potential issues that can limit compensatory damages: Certainty
Damages must be capable of being calculated with certainty and not be overly speculative.
Potential issues that can limit compensatory damages: Unavoidable
A plaintiff has a duty to take reasonable steps to mitigate his losses. The avoidable consequences doctrine limits damages to those that could not reasonably have been avoided
Types of compensatory damages: General Damages
Noneconomic losses directly attributable to the tort that all plaintiffs would have because they flow as a natural result of the tort (e.g., pain and suffering, disfigurement, etc.).
Note: basic certainty rules don’t apply and jury may award any amount it wishes.
Types of compensatory damages: Special Damages
Economic losses directly attributable to the tort that some plaintiffs may have and are unique to each specific plaintiff (e.g., medical bills, lost wages, etc.).
Note: damages calculation must be made with sufficient certainty.
Past and future damages
One must account for both past and future
damages, subject to the rules limiting damages noted above.
Future losses
A plaintiff can recover for anticipated future losses, so long as they can be calculated with reasonable certainty.
The party must show future damages occurring in future greater than 50%
Pure economic loss
Not recoverable for most torts, absent a showing of property loss or personal injury.
Exception: The tort of intentional interference with
business relations does allow for pure economic loss
recovery.
Nominal damages
Awarded where the plaintiff’s rights have been violated but the plaintiff sustained no loss. They serve to vindicate plaintiff’s rights.
Note: damages are an element of some claims. In such cases, a lack of damages will not allowed nominal damages recovery.
Punitive damages
Awarded where the defendant has displayed willful, wanton, or malicious tortious conduct.
Recoverable in intentional torts and reckless misconduct. Not negligence.
Punitive damages are only awarded if
- Actual damages are awarded (compensatory damages, nominal damages, or restitutionary damages)
- Culpability of defendant is greater than “negligence”
- They are relatively proportionate to actual damages. (Typically, a multiplier of actual damages—e.g., a maximum of ten times actual damages.)
Topic: Legal restitution (torts)
It is measured by the benefit received by the defendant. D obtained benefit the retention of which amounts to unjust enrichment.
Money restitution
Legal remedy where the plaintiff is awarded the monetary value of the benefit received by the defendant. It is measured by the value of the defendant’s gain.
A plaintiff can elect to recover compensatory damages or money restitution, but not both.
D destroys P’s car. What remedy?
Compensatory damages for the value of the car. D has not benefitted.
P buys land with private dirt road. D’s company drives trucks across P’s road. What remedy?
Restitution for the benefit to D.
D steals P’s machine and uses it in his business. What remedy?
Restitution and Compensatory. But can ultimately recover on only one of the two.
Replevin (legal remedy)
Recovery, before trial, of a chattel wrongfully taken from the plaintiff, who has the right to possession.
The property is ordered returned and the plaintiff can receive damages for the time he was deprived of his chattel.
Replevin: Bond
P must post bond.
D can defeat immediate recovery by posting a redelivery bond and keep chattel until after trial.
Ejectment
Recover specific real property from which a plaintiff who has the right to possession was wrongfully excluded.
The property is ordered returned and the plaintiff can receive damages for the time he was deprived of his chattel.
Ejectment: Possession
Ejectment only available against D in possession of real property (e.g., holdover tenants, adverse possessors).
Topic: Equitable restitution
Only available when the money damages is inadequate. The goal is to prevent unjust enrichment.
Constructive Trust: Generally
Compels the D to convey title to unjustly retained specific property of the P and restores that property to P.
Note: no deficiency judgment is available.
Constructive Trust v. Replevin & Ejectment
Constructive Trust –> D has title to property
Replevin & Ejectment –> D has possession to property
Constructive Trust: Elements
- A wrongful act has led to retention of property from its rightful owner.
- D has legal title to convey. Mere possession is not enough.
- Legal remedy (i.e., money damages) inadequate (too speculative, insolvent D, replevin unavailable, property unique).
- Property can be traced to D’s wrongful act.
- No adequate remedy at law (b/c it’s an equitable remedy).
Constructive Trust: Advantage
- P becomes secured creditor
- P gets benefit of enhanced value of property
Constructive Trust: Thieves
The thief is deemed to have legal title to wrongfully obtained cash in his possession, but not legal title to wrongfully obtained property.
Constructive Trust: Tracing
If the improperly retained property has changed form because it was sold or exchanged for new property, the rightful owner can “trace” and obtain a constructive trust for the new property (e.g., embezzled funds could be traced to a bank account or to real property purchased with them).
Can you trace the P’s property to a different piece of property under constructive trust?
No.
Can you trace embezzled funds used to remodel an existing home under constructive trust?
No. Embezzled funds used to remodel an existing home aren’t solely traceable so a constructive trust won’t be imposed.
Note: may use equitable lien
Lowest intermediate balance rule
Use when D commingles P’s funds with his own in a bank account.
Lowest intermediate balance rule: Investor Fiction
Presumes D invests his own money first with any balance coming from wrongfully obtained funds after D’s own funds are exhausted.
Lowest intermediate balance rule: Spender Fiction
Presumes a D spends his own money first, with any balance coming from the wrongfully obtained funds after his own funds are exhausted.
What if the P cannot trace wrongfully obtained funds to a new piece of property?
The funds are gone and the P cannot get a constructive trust.
Does P prevail over a BFP without notice?
No. The BFP with legal title prevails over P.
Do secured creditors prevail over the P?
Yes, they are BFPs.
Do unsecured creditors prevail over the P?
No, since P is regaining his own property, which is a higher priority.
Is P entitled to a deficiency judgment under constructive trust?
The plaintiff will receive title to the property and be precluded from obtaining a deficiency judgment for any shortfall.
Equitable Lien
Creates a security interest in property held by D. Property acts as collateral for money owed to the P.
Equitable Lien: Elements
- A wrongful act has led to retention of property from its rightful owner.
- D has legal title to convey. Mere possession is not enough.
- Legal remedy (i.e., money damages) inadequate (too speculative, insolvent D, replevin unavailable, property unique).
- Property can be traced.
Can you trace the P’s property to a different piece of property under Equitable Lien?
Yes.
Can you trace the P’s property used to improve another piece of property properly owned by the D?
Yes.
Note: You cannot do that under a constructive trust. Must trace solely to P’s property.
Does the lowest intermediate balance rule apply to commingled funds in Equitable Lien?
Yes. Same doctrine including investor/spender fiction apply.
Equitable Lien: Deficiency Judgments
Are allowed. Unlike constructive trust, can obtain deficiency for any shortfall.
Note: preferred method when the property has decreased in value b/c of passage of time, or a change in property form.
Note: P prevails over unsecured credits but P needs to get in line for deficiency judgment.
Topic: Injunctions (pure equitable remedy)
Equitable remedy where the court orders one to
perform an act (affirmative or mandatory injunction) or stop performing an act (negative injunction).
What are the 3 types of injunctions?
- Temporary restraining orders (TROs)
- Preliminary Injunctions
- Permanent Injunctions
TROs
Preserve the status quo pending further litigation re a preliminary injunction.
How long do TROs last?
14 days but can be extended another 14 days for a total of 28 days.
Note: after 28 days, TRO turns into a preliminary injunction.
TROs: Notice
Notice is required, but a TRO can be obtained ex parte in exceptional
circumstances, such as an emergency or when notice would result in the very harm one is trying to avoid.
TRO: Elements
- Irreparable harm during time waiting for the preliminary injunction
- Likelihood of success on the merits of underlying claim
- Inadequate legal remedy
- Balancing of hardships must favor P. Weigh the hardship to P if TRO is denied and hardship to D if TRO is granted
- Public interest
Defenses
- Laches: P unrx delated, resulting in prejudice to D.
- Unclean Hands: P conducted herself unfairly in the transaction in dispute.
What are ineffective defenses that may be raised to a TRO?
- Coming to the nuisance
- Sale to a BFP: not effective defense in tort of conversion
Preliminary Injunctions
Designed to preserve the status quo pending a full trial on the merits.
Preliminary Injunctions: Elements
- Irreparable harm during the time waiting for the preliminary injunction
- Likelihood of success on the merits of the underlying claim
- Inadequate legal remedy
- Balancing of hardships must favor P. Weigh the hardship to P if TRO is denied and hardship to D if TRO is granted
- Public interest
Preliminary Injunctions: Timing
- Granted only after a regular adversary type hearing
- Generally remains in effect until conclusion of full trial
Permanent Injunction
Where a court orders one to perform an act or stop performing an act after holding a full trial on the merits.
Permanent Injunction: Elements
- Inadequate legal remedy
- Protectable property interest
- Feasibility of enforcement
- Balancing of hardships by weighing the hardship to P if injunction is denied against hardship to D if injunction is granted.
Injunctions: Unclean Hands
Party seeking equitable relief must not be guilty of any unfair dealing with respect to the transaction being sued upon.
Injunctions: Laches
Unrx delay by P in initiating their equitable claim resulting in prejudice to D.
Note: laches begins to run from the time P has knowledge that his right has been infringed.
Injunctions: Impossibility
Valid defense if impossible for D to carry out injunction
Injunctions & Monetary Damages
Injunctive relief is always coupled with damages for injuries incurred in the time period prior to obtaining the injunction.
