Tort Remedies - Legal Remedies Flashcards
What are the Legal Remedies for Torts?
Damages ($$)
What are the Restitutionary Damages for Torts?
Legal Restitutionary Remedies
* Restitutionary damages (reasonable $$ value of benefit)
* Replevin
* Ejectment
Equitable Restitutionary Remedies
* Constructive trusts
* Equitable liens
What are the Equitable Remedies for Torts?
Injunctive relief
Legal Remedies - Damages
What are the three types of damages available in tort cases?
- Compensatory damages
- Nominal damages
- Punitive damages
Legal Remedies - Damages
When are compensatory damages used?
Provide monetary compensation to plaintiff for damage (loss or injury incurred by plaintiff)
To put injured party in the position they would have been in had the injury not occurred
Two types of damages:
* General Damages: compensation for foreseeable losses (pain and suffering)
* Specific Damages: compensation for unforeseeable losses (ex. wage losses) that must be specifically pleaded
Legal Remedies - Damages
What is required to obtain compensatory damages?
a. Actual causation
* Use but-for test
b. Proximate causation
* Injury was foreseeable at time of tortious act
c. Certainty
* Past losses: requires more certainty than future losses (ex. use historical record)
* Future losses: requires showing that they’re more likely to happen than not (greater than 50%)
d. Unavoidability
* P took reasonable steps to mitigate damages
Awarding damages for future losses is very speculative
Legal Remedies - Damages
In what torts are compensatory damages used?
Personal Injury Torts
Legal Remedies - Damages
For personal injury torts, in what form must the judgment payment be in?
Simple, lump-sum payment
NO installment payments
“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)”
Award must be discounted to present value
Inflation not considered under traditional rule
Legal Remedies - Damages
Do the Certainty Rules apply for both economic and non-economic losses?
(Personal Injury Torts - Compensatory Damages)
Economic Losses (Special Damages)
* Basic certainty rules apply - damages calculated must be made with sufficient certainty
Non-Economic Losses (General Damages)
* Basic certainty rules do NOT apply - jury can award any amount within judge’s instructions
Legal Remedies - Damages
When are nominal damages used?
When no actual injury is sustained, nominal damages are used to establish/vindicate a plaintiff’s right
Ex. Plaintiff can sue for nominal rights to establish ownership of a dirt road (to prevent prescriptive easement)
Legal Remedies - Damages
When are punitive damages used?
To punish a defendant for willful, wanton, or malicious conduct
Usually used for intentional torts (sometimes for reckless misconduct)
What is required for punitive damages?
- Compensatory or nominal damages (or restitutionary damages)
* Punitive damages CANNOT be awarded by itself - D engaged in wanton, willful, or malicious conduct (it was greater than negligence)
- Capped at 10x compensatory damages (unless conduct was particularly egregious)
What is the due process limitation for punitive damages?
“Grossly excessive” punitive damages are invalid under 5th Amendment and 14th Amendment’s Due Process Clause.
“Grossly excessive” - look at if D had fair notice of possible magnitude of punitive damages
* Reprehensibility of D’s conduct
* Difference between punitive damages and actual/potential harm P suffered
* Difference between punitive damages and criminal/civil penalties for similar misconduct
