Tort Remedies Flashcards
Tort Equitable Restitutionary Remedy: Constructive Trust
- Imposed on improperly acquired UNIQUE prop by D where D has TITLE and forced as Trustee to convey TITLE to P
- Look to impose Equitable Lien AND CT at the same time (e.g. D improperly takes P’s title and D is insolvent)
- Key issue: TRACE prop to the wrong by D
If prop cant be traced to P, ONLY Equitable Lien is available - Defense: laches, uncleaned hands, TP BFP > P, P > unsecured creditors
Tort Remedy for Fraud
Damages
Constructive Trust and Equitable Lien
Types of Tort remedies (legal and equitable)
Legal Remedies
- Damages: Com, Nom, Punies
1) Compensatory: Econ and Non-econ + FACCU (Foreseeable, Actual Causation, Certainty, Unavoidable)
2) Nominal
3) Punitive
Restitutionary Remedies
- Legal Restitutionary: prevent unjust enrichment
1) Restitutionary Damages
2) Replevin
3) Ejectment - Equitable Restitutionary remedies: prevent unjust enrichment
1) Constructive Trust
2) Equitable Lien
Equitable Remedies
- Injunctive Remedies:
1) Temp Rest Ord (pending trial - CA: 10days, Fed: 14days)
2) Prelim (pending trial)
3) Perm (after full trial) IPFBD (Inadequacy of Legal remedy, Protectable interest, Feasibility of enforcement, Balance Hardship vs Benefit, Defenses overcome: Laches, Unclean Hands, Freedom of Speach, Crim pros)
Tort Remedy for encroachment into RealProp
Compensatory
Injunction
NO Restitutionary
Tort Equitable Restitutionary Remedy: Equitable Lien
- Imposed on improperly acquired prop by D where D has TITLE and forced IMMEDIATE court-directed sale
If proceeds of sale are less than FMV of prop when wrongfully taken = deficiency judgment for difference - Encumbers prop interest of D (imposes a lien)
- Look to impose Equitable Lien AND CT at the same time (e.g. D improperly takes P’s title and D is insolvent)
- Key issue: TRACE prop to the wrong by D
- Defense: laches, uncleaned hands, TP BFP > P, P > unsecured creditors
Tort Legal Restitutionary Remedy: Restitutionary Damages
- Prevent unjust enrichment to D by the benefit conferred by P
- Focus on benefit to D
- E.g. no actual loss to P but P’s prop is used to benefit D, or P’s prop is stolen to benefit D
- Tip: ARGUE to include Compensatory OR Restitutionary (during wrongful withholding) along w/Replevin OR Ejectment
- Argue both Compensatory and Restitutionary, Do NOT award BOTH BUT award P the larger sum
Tort Legal Remedy: Punies Damages
- Awarded to PUNISH the D for
- P MUST also be awarded: Compensatory OR nominal
- D’s fault is more than Negligence
- Action based on MFO malice, fraud, oppression
- Limit 9:1 proportionate to actual damages
- Tip: Look to see if claim can be analyzed as Tort and K claim
Tort Remedy for Trespass
Nominal
Restitutionary
Injunction
Tort Legal Remedy: Compensatory Damages
Compensatory: Put injured party in the position he would have been in had the injury not occurred
Elements: FACCU
1) Foreseeability (proximate causation): injury was foreseeable at time of tortious act (limits liability)
2) Actual Causation: but-for factual test
3) Certainty: Cannot be speculative
- Past loss MUST be more certain than future loss
- Future loss: MUST establish “more likely than not” (50%+) otherwise NO recovery (all-or-nothing)
- Special Damages (econ): sufficiently certain
- Gen Damages (non-econ): no certainty required because Jury awards amount it sees proper
4) Unavoidable: P took reasonable steps to mitigate injury/loss
- Judgment MUST be a single lump sum payment that will be discounted to present value w/o taking into account inflation ($$ now + % investment = J awarded)
- Compensatory Damages ONLY in Neg cases
- Tip: ARGUE to include Compensatory OR Restitutionary (during wrongful withholding) along w/Replevin OR Ejectment
Tort Legal Remedy: Nominal Damages
- P suffers no injury BUT used to establish a right
Analysis to determine type of Tort remedy
1) Legal remedies
2) Restitutionary remedies (legal and equitable)
3) Equitable remedies
Tort Equitable Remedy: Permanent Injuctive Relief
I Put Five Bucks Down
1) Inadequacy of Legal remedy (no replevin; no ejectment; no money damages: speculative, D is insolvent, irreparable injury; Defense: re-delivery bond by D)
2) Protectable interest: P has interest at stake (similar to Standing)
3) Feasibility of enforcement: Ct must be able to enforce the order (mandatory vs prohibitory, Out of Jx Inj)
4) Balance Hardships:
a) to D: MUST be a gross disparity between D’s detriment and P’s benefit
b) to Public
c) to P if Inj denied
d) Award damages
- NO Balancing if D’s act is intentional
5) Defenses overcome: Free LUCI
- Freedom of Speech: defamation, privacy publication (false light, private facts)
- Laches: clock runs when P learns of injury and P’s right is cut off when relief is Unreasonable AND Prejudicial to D
- Unclean Hands: P’s wrongful act MUST relate to claim
- Crime cannot be enjoined
- Impossibility: terms of inj impossible to carry out
6) Injunction binds parties, and parties’ Agents
- Civil Contempt: used to coerce party w/fines or imprisonment (avoid prison by complying)
- Criminal Contempt: used to punish w/fines or imprisonment (cannot get out of prison)
Tort Remedy for dispossession of Personal Prop
Compensatory
Restitutionary (if D benefits)
Replevin
Mandatory Injunction (unique personal prop)
Constructive Trust and Equitable Lien
Tort Remedies for destroyed/damaged Personal Prop
Compensatory Damages
Tort Remedy for dispossession of RealProp
Compensatory
Restitutionary
Ejectment (no injunction)
Constructive Trust and Equitable Lien
