Tort Remedies: Injunctive Relief

Question 1

What is “injunctive relief”?

What issues arise?

Answer 1

Where damages or restitution are INADEQUATE to remedy a tort, P may be able to get an injunction

• Decree ordering D to perform
• Decree forbiding D to perform

ISSUES:

1. when is it available
   (i) legal remedy inadequate
   (ii) feasible to enforce
   (iii) balancing of hardships
   (iv) no defenses
2. Defenses
3. Interlocutory Injunctions
   (i) preliminary injunction
   (iii) TRO

Question 2

When is injunctive relief available?

Answer 2

(i) legal remedy inadequate
(ii) feasible to enforce
(iii) balancing of hardships
(iv) no defenses

Question 3

What does it mean for legal remedy to be inadequate?

Answer 3

1. Money damages won’t give adequate relief
2. Injury is certain, but damages are difficult to assess
3. Multiplicity of suits –> wrong is continuous or has been threatened on numerous occasions so that P would have to bring multiple suits to recover all damages
4. Irreparable injury (loss of unique property) Example –> land, family heirloom
5. Tort has not yet been committed, so no money damages are available (prospective tort)
6. Inadequacy of replevin

Question 4

What issues arise in terms of feasibility of enforcing decree?

Answer 4

Negative (prohibitory) decrees - order D to stop doing an act

Mandatory Injunctions - order D to do an affirmative act

ISSUES:

• mandatory are harder to enforce due to supervision issues. To overcome, it will often be framed as negative if possible.
• court has power to issue injunctions in other states, but must be feasible to enforce
• courts CAN imprison D to comply, BUT not if it’s a money decree

Question 5

What is the rule w/ regards to balancing of hardships?

Answer 5

Majority (liberal) view –> if harm to P does not outweigh harm to D or public:
- court will DENY injunction and limit P to damages

HOWEVER –> will not balance hardships if conduct was INTENTIONAL

Minority (strict) view –> No balancing of hardships. If other requirements are met, injunction must be granted as a matter of course.
EXCEPTION –> some minority courts balance hardships in nuisance cases at preliminary injunction state - which may have the effect of postponing relief until after trial

Question 6

What is an “interlocutory injunction”?

What is required?

What types of cases is it allowed in?

Answer 6

“interlocutory injunction” = used to preserve the STATUS QUO until a full trial on the merits can be held

PRELIMINARY INJUNCTION REQUIREMENTS:

1. Likely to prevail on the merits
2. irreparable harm before trial can be held if injunction is not granted
3. Notice
4. Hearing
5. Bond to secure against D’s losses if injunction was improper
6. balance of hardships

TYPES OF CASES:
-tort or K, as long a change in status quo before trial can result in irreparable injury

Question 7

What is the rule w regards to “preliminary injunction” and hearing?

How long does it staying effect?

Answer 7

• granted only after adversary-type hearing

- generally remains in effect until conclusion of full trial

Question 8

What is a TRO?

What are the rules re notice?

What are rules re: duration?

Can it be ex parte?

Answer 8

“Temporary Restraining Order” = appropriate in DRASTIC CIRCUMSTANCES where irreparable harm will occur before a hearing on preliminary injunction can be held

NOTICE –>

• less formal notice is required
• no notice may be require if P can may strong showing as to why no notice should be required

DURATION –>
will be short. Usually 10 days (14 in federal courts)

CAN be ex parte