Tort Remedies Flashcards
Types of Tort Remedies
Legal Remedies
Restitutionary Remedies
Equitable Remedies
Damages Definition
Money the court orders the defendant to pay to the plaintiff:
- Compensatory
- Nominal
- Punitive
Compensatory Damages Definition
Based on the damages done to the plaintiff, compensate plaintiff for loss or injury seeking to put the injured party in the position they would have been had the injury not occurred.
2 types of Compensatory Damages
General damages - compensate for foreseeable losses (pain and suffering) do not need to be specifically pleaded
Special damages compensate for losses not necessarily foreseeable (loss wages) - Do need to be specifically pleaded
Three requirements for Damages to be Recovered
CCU!
Causation- Actual (but for) and Proximate (foreseeable at time of act)
Certainty - Damages cannot be too speculative
(past losses with more certainty than future losses) (future losses - more likely to happen than not (all or nothing rule)
Unavoidability - P must take steps to mitigate damages
Personal Injury Torts - Certainty Rules
Economic losses (Special Damages) - damages calculated must be maid with sufficient certainty
Non-economic losses (General Damages) - basic certainty rules do not apply - jury may award any amount it wishes.
Personal Injury Torts - Form of Judgment Payment
Memorize this: “judgment must be a single lump sum payment that will be discounted to present value without taking inflation into account (except under the modern rule)”
Nominal Damages
No actual injury is sustained - serve to establish or vindicate P’s rights.
Punitive Damages Definition
Awarded to punish a defendant for willful, wanton or malicious conduct. Generally limited to intentional torts but sometimes for reckless misconduct
Rules of Punitive Damages
- Compensatory or nominal damages awarded first.
- D’s type of fault must be greater than negligence.
- should grow proportionally with compensatory damages generally and not exceed 10x compensatory damages
Due Process Limitation on Punitive Damages
Grossly excessive (unreasonably high to vindicate state’s interest in punishment) invalid under Due Process Clause of 5th and 14th Amendments. Do not look at nonparty injuries and do look at whether Defendant had fair notice of the possible magnitude of punitive damages:
1. Reprehensibility of Conduct
2. disparity between actual and potential harm suffered by P and the punitive award
3. difference between Punitive damages award and criminal/civil penalties authorized by comparable misconduct.
Interest and Attorney’s Fees
Prejudgment interest
and attorneys’ fees generally statutory
Restitutionary Remedies Definition
Imposed by law that obligates D to pay P the reasonable value of benefit unjustly conveyed (benefit to D not loss to P).
Available in tort only where tort results in bene to D.
Types of Restitutionary Remedies
- Replevin
- Ejectment
- Constructive Trust
- Equitable Lien
- Injunction
Replevin
Recover before trial possession of specific chattel wrongfully taken or detained
1. Plaintiff has right to possession
2. there is a wrongful withholding by Defendant
Be sure to state that the Plaintiff will have to post a bond when their chattel is returned. (D can defeat immediate recovery by posting a redelivery bond)
Ejectment
Legal remedy to restore possession of real property from which P was wrongfully ousted
1. P has right to possession
2. There is wrongful withholding by D.
Constructive Trust
Imposted on improperly acquired property to which the D has** TITLE. ** P becomes secured creditor
1. D has title to the property and
2. that D’s acquisition of title can be traced to the property D wrongfully acquired.
3. D’s retention of property would result in unjust enrichment, and
4. P has no adequate remedy at law (d is insolvent or uniqueness of the property)
Equitable Defenses
- Laches
- Unclean hands
- transfer of Legal title to BFP
Equitable Lien Definition
Lien imposed on D’s property to secure payment of debt owed to P
Property is immediately subjected to court-directed sale and $ go to P.
If less than amount owed –> deficiency judgment will issue for the difference and can be used against D’s other assets.
Equitable Lien Requirements
- property to which D holds title and to which the wrongfully obtained property can be traced.
- Gives P priority in the property over other creditors.
- Can be imposed on property that was merely improved with P’s property or proceeds thereof.
Equitable Lien v Constructive Trust
EL - D aquires property/improved property he already owns using $ or property worth as much or less than P’s Claim –> P obtains lien on property & may obtain deficiency judgment
CT - Title to property worth as much or more than P’s Claim - Cannot be used where D improved other property with p’s Property –> title transferred to P, no deficiency judment avail.
Injunction
Available where the legal remedy is inadequate - results in equitable restitutionary remedy when C orders D to make specific restitution
Injunctive Relief
I’m Feeling Bold and Determined
1. Legal remedy Inadequate?
2. Feasable to enforce equitable decree?
3. Balancing Test : hardship to D considerably greater than Benefit to P
4. Are there any defenses available?
