Tort remedies Flashcards
- What legal remedies are available to the P in tort?
Damages
- What Restitutionary remedies are available to the P in tort?
Remember there are 2 types with 5 total remedies available.
A. LEGAL RESTITUTIONARY REMEDIES
- RESTITUTIONARY DAMAGES
- REPLEVIN
- EJECTMENT
B. EQUITABLE RESTITUTIONARY REMEDIES
- CONSTRUCTIVE TRUSTS/
- EQUITABLE LIENS
What equitable remedies are available in tort?
injunctive relief
- Legal remedies (TORTS)
What is the definition of damages?
Defendant is ordered to pay money to plaintiff.
What are the three types of damages in tort?
(i) compensatory (ii) nominal (iii) punitive
FIRST TYPE : What is the basic concept of compensatory damages?
These are based on the damage to the plaintiff. (They put the injured party in the position he/she would have been in had the injury not occurred.)
What is the 4 requirements checklist for compensatory damages in tort?
1st) CAUSATION- This refers to actual causation. (The “but for” test)
2nd) FORESEEABILITY- This refers to proximate causation. (The injury must have been foreseeable at the time of the tortious act.)
3rd) CERTAINTY- Damages cannot be too speculative.
4th) UNAVOIDABILITY- Plaintiff must take reasonablesteps to mitigate the damages.
Past losses have to be established with more certainty than __________ losses. If there is a ________________ record that helps to provide certainty.
Future; historical
Defendant causes plaintiff’s restaurant to burn to the ground. Restaurant has been in business for three years vs. three days. Which one is easier to find the damages for?
easier to find damages for restaurant when it has been open 3 years v 3 days
What is the all or nothing rule?
“For future damages, plaintiff must show that they are more likely to happen than not”
Injured plaintiff is an outstanding undergraduate student who has been accepted to law school. What would be the students argument for damages?
P would argue that it is more likelythan not that they would succeed in law school
What must P do if they are injured?
Plaintiff must take reasonable steps to mitigate the damages.
Hypo: Plaintiff injured in car accident. What should plaintiff do?
Go to the doctor, not wait. If they wait and that compounds their injuries they could not recover for them if they were avoidable.
Do the THE “certainty rules apply to economic losses/special damages (EX: Medical Expenses/Lost Earnings)?
Basic certainty rules apply here, i.e., calculation must be with sufficient certainty.
Do the THE “certainty rules apply to NON-ECONOMIC LOSSES (GENERAL DAMAGES) (EX: Pain and Suffering, Permanent Disfigurement)?
Basic certainty rules do not apply here. The jury may award any amount it wishes subject to proper instructions.
What kind of payment must damages be in?
The award must be a single lump sum payment. Installment payments are not allowed.
Does the lump sum payment for future damages need to be discounted at all?
The award must be discounted to present value.
Is inflation taken into account for the lump sum payment?
Inflation is not taken into account. (Exception - under the more modern view it is).
What sentence should you write to describe the calculation of a compensatory damages problem involving personal injury torts?
“The 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).”
What is the basic concept of nominal damages?
These are awarded where plaintiff has no actual injury. They serve to establish or to vindicate the plaintiff’s rights.
Hypo: Defendant regularly walks across dirt road on plaintiff’s land to get to a bus. P bothered, but no actual injury. But can lead to easement, so P wants to what?
establish rights.
What are the 3 rules to get punitive damages?
1st RULE: In order to get punitive damages, plaintiff must have first been awarded compensatory or nominal damages. (Note: Punitive damages can also be attached to restitutionary damages.)
2nd RULE: In order to get punitive damages, defendant’s type fault must be greater than negligence
3rd RULE: Generally, punitive damages are awarded in an amount relatively proportionate to actual damges
What did the US supreme court to limit punitive damages?
U.S. Supreme Court limited punitive damages to a single digit multiple of actual damages unless conduct facts are extreme.
What is the basic concept of restitution remedies?
These remedies are based on the theory that the defendant should not be unjustly enriched
What is the basic concept of a legal retitutionary remedy? How are they calculated?
These are based on the benefit to the defendant. And the amount is calculated based on the value of the benefit.
Hypo: Defendant destroys plaintiff’s car. Remedy?
Only compensatory damages are available.. The value of the car.
P buys land (doesn’t use) with private dirt road through middle. Defendant manufacturing company drives trucks across road on plaintiff’s vacant property to get to railroad reducing trip from ten miles to one-half mile. Remedy?
Only restitutionary (and nominal) damages are available. No injury to the P but there is a benefit to the defendant (saves gas).
Defendant steals your machine to use in its business. Remedy? Explain why.
P is injured so you have compensatory damages. Also the defendant has benefited, they used the machine there has been unjust enrichment so they should get restitution damages as well. Also they could possibly get punitive damages because they stole the machine.
Can you be awarded compensatory and restitutionary damages? How should you write about them?
No, but you should write about both.
What should you give the P if the are entitled to both compensatory and restitutionary damages?
Give P the larger sum.
What is the definition of replevin?
Plaintiff recovers possession of specific personal property (chattel)
What is the 2 part test for replevin?
Establish that: (1) The plaintiff has a right to possession. (2) There is a wrongful withholding by defendant.
What is the most likely bar exam issue for replevin?
the timing of the recovery
When can the P recover the chattel?
Plaintiff can recover the chattel before the trial.
If they do recover the chattel before trial what must the P do?
- P must post a bond
What can the D do to keep the chattel during trial for the duration of the trial if P posts a bond?
Defendant can defeat an immediate recovery by posting a re-delivery bond
Who repossesses the property for the plaintiff?
The sheriff
What is replevin almost always coupled with?
Replevin is almost always coupled with damages (compensatory or restitutionary) for lost use or benefit to the defendant during the time of detention.
What kind of remedy is ejectment?
A “LEGAL” RESTITUTIONARY REMEDY
What is the definition of ejectment?
Plaintiff recovers possession of specific real property.
What is the 2 part test for ejectment?
Establish that: (1) The plaintiff has a right to possession. and (2) There has been a wrongful withholding by defendant.
When is the remedy of ejectment only available?
Ejectment is available only against defendant who has possession of property.
Hypo: Defendant crosses plaintiff’s lawn on way to bus every day. Does P get ejectment? Why or why not?
No, because D has no possession
Hypo: (i) Defendant is adverse possessor. (ii) Holdover tenant at expiration of lease term. Is ejectment available?
Yes, because D has possession
Who ejects the D form the property?
The sheriff.
Ejectment is almost always coupled with what remedy? Fro what?
Damages, (compensatory or restitutionary) for lost use or benefit to defendant during time of wrongful withholding.
Define: Constructive Trust
A constructive trust is imposed on improperly acquired property to which defendant has title. Defendant serves as “trustee” and must return the property to the plaintiff.
Define: Equitable Lien
An Equitable Lien is Imposed on improperly acquired property to which defendant has title. Property will be subject to an immediate court-directed sale. The monies received go to the plaintiff. If the proceeds of the sale are less than the fair market value of the property when it was taken, a deficiency judgment will issue for the difference and can be used against defendant’s other assets.
What type of remedy are constructive trusts and equitable liens?
Restitutionary remedies
When is the only time when the remedies of constructive trusts and equitable liens available?
constructive trusts and equitable liens can be used only when the fact pattern indicates that the defendant has title to the property.
What are the rules to get either a constructive trust or equitable lien?
RULE 1: There is an inadequate legal remedy alternative.
Rule 2: Tracing is allowed
Rule 3: Bona Fide purchasers prevail over P.
Rule 4: Plaintiff will prevail over unsecured creditors
What is the basic alternative to a constructive trust or equitable lien?
Money damages
What are the 2 reasons that there would be a inadequate legal remedy (ie money damages)?
- Defendant is insolvant
2. For constructive trusts, the property is unique
Hypo: Doofus improperly acquired title to Bowater’s property. Doofus is now insolvent. Doofus sold the property for $50,000, which he put in a bank. What can Bowater do?
Trace money right into bank
Hypo: Doofus improperly acquired title to Bowater’s property. Doofus is now insolvent. Doofus sold the property to Lulu, a BFP. Bowater wants to have a constructive trust imposed on the property. Can he?
No, only option is tracing.
deficiency judgment in connection with an equitable lien, what is your positioning with unsecured creditors?
To the extent you have a deficiency judgment in connection with an equitable lien, you stand on equal footing with other unsecured creditors.
If the property value subsequent to taking goes up, what do you go for, a Constructive trust or an equitable lien?
go with a constructive trust.
If the property value subsequent to taking goes down, what do you go for, a Constructive trust or an equitable lien?
go with an equitable lien (P will get defiiency judgment for how much it went down)
When defendant’s property cannot be traced solelely to plaintiff’s property what remedy is available?
only an equitable lien is available.
Hypo: Doofus misappropriates money and uses it to remodel his house. Since title to the home was not obtained by use of the money, the proper remedy is what?
An equitable lien on the property.
What type of remedy is an injunction?
An equitable remedy
