Tort Remedies Flashcards
Tort-Compensatory
Are based on the injury to the P. P is entitled to compensatory damages to put her in the position she would be in had the wrong not occurred. Req: 1)Actual causation; 2) Proximate causation – forgeability; 3) Certainty; 4) Mitigation
2 Types: Special and General
Tort- Special Damages
Are awarded for economic loses (e.g. med exp., lost earnings) and must be calculated with sufficient certainty (past losses – look for history; future damages – “all or nothing” rule). Compensates for losses not necessarily foreseeably and must be specially pleaded.
Tort- General Damages
Are awarded for non-econ losses (e.g., pain and suffering) and jury can award any amount. Compensated for foreseeable losses.
Tort- Nominal
Are awarded when there is no actual injury to the P and are designed to vindicate the P’s rights.
Tort- Punitive
Requires that P first have been awarded compensatory/nominal damages, D’s fault must be GREATER than negligence, and the award is relatively proportionate to actual damages (limited to a single digit multiple unless conduct is extreme). Punitive damages punish and deter. They do not compensate for P’s injury.
Tort- Restitution Damages
Measured as the value of benefit conferred on D. “Unjust enrichment.” There does not need to be any injury to the P.
Tort- Money Damages (Legal Remedy)
Remedy imposed by law that obligates D to pay P the reasonable value of the benefit unjustly obtained. Only available in tort situation when the tort results in a benefit to D. Sometimes called “waive the tort and sue in assumpsit.”
Tort- Replevin (Legal Remedy)
Allows P to recover possession of specific personal property where P has a right to possession, and D wrongfully withholding the property. Special rule: P may recover the chattel before trial if P posts a bond, unless D defeats immediate recovery by posting a redelivery bond.”
Note: Always coupled with damages (compensatory/restitutionary) for lost use or benefit to D during the time of the wrongful withholding.
Tort- Ejectment (Legal Remedy)
Allows P to recover possession of real property where P has a right to possession, and D in possession is wrongfully withholding the property. Note: Nost always coupled with damages (compensatory/restitutionary).
Tort-Constructive Trust (Equitable Remedy)
Are imposed on improperly acquired property to which D has title (vs. possession) to avoid unjust enrichment. The D serves as trustee and must return the property to the P. 1)If the D no longer has title to the property, then tracing is allowed so P can follow the property to whatever form it takes (as long as the trust res can be identified); 2) Must be an inadequate legal remedy; 3) BFPs prevail over P; 4) P prevails over unsecured creditor.
Tort- Equitable Lien (Equitable Remedy)
Are imposed on improperly acquired property to which D has title to avoid unjust enrichment. The property is subject to an immediate court-ordered sale and P receives the proceeds. If the proceeds are less than FMV of property when it was taken, P will also receive a deficiency judgment. An equitable restitutionary remedy that imposes a lien on D’s property to secure payment of debt owed to plaintiff because D misappropriated P’s property. 1) Must be a inadequate legal remedy; 2) tracing allowed; 3)BFPs prevail over P; 4) P prevails over unsecured creditors.
Tort- Constructive Trust v. Equitable Lien, which one to use?
CT: when value of property has increased. Cannot be used when D has improved other property with D’s property (Embezzled P’s funds to build addition to house)
EL: When the value of the property misappropriated goes down. Use when D has improved other property with P’s property. When D’s property cannot be traced solely to P’s property, only equitable lien is available. [E.g., D misappropriates money and uses it to remodel his house. Since title to the home was not obtained by the use of money, property remedy is an equitable lien on it.]
Tort- Injunction
Order to the D to refrain from doing something (negative injunction) or to do something (mandatory or affirmative injunction).
Tort- Temporary Restraining Order (TRO)
TRO is the order sought at the first stage in the P’s request for injunctive relief. Purpose is to maintain the status quo pending issuance of a preliminary injunction. May be issued after notice and a hearing or a ex part on a sufficient showing of urgency. Requires irreparable injury while waiting for a hearing for a prelim. injunction, and likelihood of success on the merits. Balance of hardships. Limit: 10 days state ct, 14 days Fed ct.
Tort- Preliminary Injunction
Requires P to establish that:
1)P will suffer irreparable injury while waiting for a full trial;
2)Likelihood of P’s success on the merits;
3) Balance of hardships (maintain status quo;
Bond is required: Court should impose a bond req on P to reimburse D if the injunction injures him and P doesn’t succeed.
