Torts

Question 1

What are the 3 kinds of remedies available to Plaintiffs?

Answer 1

Legal Remedies, Restitutionary Remedies, and Equitable Remedies

Question 2

What are the Legal Remedies available to P in tort case?

Answer 2

Damages

Question 3

What are the Legal Restitutionary remedies to P in tort case?

Answer 3

Restitutionary Damages, Replevin and Ejectment

Question 4

What are the Equitable Restitutionary Remedies to P in tort cases?

Answer 4

Constructive Trusts/Equitable Liens

Question 5

What are the Equitable Remedies to P in tort cases?

Answer 5

Injunctive Relief

Question 6

What are Compensatory Damages based on? What are the requirements P must show?

Answer 6

Based on Damage to P.

1) Causation (actual ‘but for’ cause)
2) Foreseeability (proximate cause)
3) Certainty (damages can’t be too speculative)
4) Unavoidability (P must take reasonable steps to mitigate damages)

Question 7

Past losses vs. future losses?

Answer 7

past losses must be more certain than future and for FUTURE damages must prove they are MORE LIKELY THAN NOT

Question 8

“Certainty” rules in torts:

Answer 8

Economic losses (special damages) must be certain (must be able to calculate with sufficient certainty)
Non-Economic damages (general damages like pain/suffering) no basic certainty rules applied (jury can award any amount)

Question 9

Form of judgment payment; awards; inflation for COMPENSATORY DAMAGES:

What is the 1 sentence you write down in regards to judgment:

Answer 9

award must be single lump sum (installments not allowed); award is discounted to present value; inflation not taken into account
Write: “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)

Question 10

Punitive Damages: How to get them in? award amount?

Answer 10

to punish defendant, must first be awarded compensatory or nominal damages (or restitutionary)
Fault must be MORE THAN MERE NEGLIGENCE
AWARD: max is 9:1 ratio, relatively proportionate to actual damages

Question 11

Basic idea behind Restitutionary Remedies

Answer 11

Remedies based on theory that D should not be unjustly enriched (is enriched by doing a tort)

Question 12

Types of restitutionary Remedy

Answer 12

Legal restitutionary remedy and equitable restitutionary remedy

Question 13

Legal Restitutionary remedy vs. compensatory

Answer 13

Legal restitutionary based on benefit to the D, and amount is calculated based on the value of the benefit. Compensatory focus on the injury to the plaintiff

Question 14

Examples/3 hypos for compensatory vs. legal restitutionary remedy:

Answer 14

1: car gets destroyed: Only compensatory available (no benefit to D, P is harmed)
2: D drives through P’s UNUSED land (only nominal and restitutionary damages, but no harm to P so no compensatory available)
3: BOTH compensatory and restitutionary: D steals your machine (you’re harmed, he’s benefitted)

Question 15

Remedy if there’s both a compensatory and restitutionary damage: how does punies fit in?

Answer 15

ONLY win remedy for one of the two, P gets the larger sum

P can also get punitive damages for restitutionary damages so long as underlying claim is a tort

Question 16

What is it called when P wants possession of personal property back? what is the test?

Answer 16

Replevin 2 part test: 1) plaintiff has a right to possession and 2) there is wrongful withholding by defendant

Question 17

For replevin, when can P get property? how? Can D stop it?

Answer 17

Can get property BEFORE trial, but must put down a bond. D can rebut this bond by posting a bond of his own called a re-delivery bond

Question 18

For replevin, what other damages usually come with?

Answer 18

Either compensatory or restitution because defendant who takes property always gets a benefit and the plaintiff usually suffers a harm.

Question 19

What is it called when D has possession of your real property and you want him off?
Example of proper vs. improper action?
Almost always coupled with what damages?

Answer 19

Ejectment 2 part test: P has a right to possession, there is wrongful withholding by D
Improper = guy walks across lawn everyday (he has no possession though!)
Proper: Adverse possessor or holdover tenant
Coupled with compensatory or restitution (D pays no rent (restitution), you get no rent (compensatory)

Question 20

Types of equitable restitutionary remedy:

Answer 20

Constructive Trusts, Equitable Liens

Question 21

Constructive trust definition:

Answer 21

Imposed on improperly acquired property to which defendant has title. Defendant serves as “trustee” and must return the property to the plaintiff
REMEMBER: MUST HAVE TITLE NOT JUST POSSESSION

Question 22

Equitable Lien definition:

Answer 22

D has wrongful title to your property, court will force a sale, any deficiency after sale becomes deficiency lien against D
REMEMBER: MUST HAVE TITLE NOT JUST POSSESSION

Question 23

When is equitable lien/constructive trust allowed? what other unique rules?

Answer 23

1) Legal Remedy is inadequate remedy b/c D is insolvent or property is unique (constructive trust) (YOU CAN TRACE; Bona fide purchasers prevail over P (in that case trace the funds from sale); P prevails over unsecured creditors)

Question 24

When to choose equitable lien or constructive trust?

Answer 24

If value of property goes up do a constructive trust so you get prop back, if it goes down do equitable lien you get cash right away and a deficiency judgment
IF D’s property CANNOT BE TRACED SOLELY to P’s property, only equitable lien is available. ex: D misappropriates your $ to increase value of his house, equitable lien on house is only remedy

Question 25

Equitable remedies:

Answer 25

Injunctive relief

Question 26

Threshold issue with injunctive relief:

Answer 26

is it a permanent (issued AFTER trial) or temporary injunction (issued BEFORE trial) you’re looking for

Question 27

Temporary injunctive relief analysis:

Answer 27

Temporary Injunction: In issue is whether plaintiff can obtain temporary/preliminary injunctive relief. To do so, plaintiff must meet a 2-part test:

(i) Irreparable Injury: (Discuss facts in time-frame context; balance hardships)
(ii) Likelihood of Success: (Discuss the “probability.” Impose bond requirement.)

Question 28

TROs

Answer 28

Issued pending a hearing to determine if preliminary injunction should be issued, test SAME for temp injunctive relief; however ex parte is okay (if tried to get D in), adversarial proceeding NOT required
limited to 10 DAYS

Question 29

Permanent Injunction 4 part test

Answer 29

I’M FEELING BOLD AND DETERMINED:

1) (I)nadequate Legal Remedy; 2) (F)easibility of Enforcement 3) (B)alancing of Hardships 3) (D)efenses

Question 30

Permanent injunction FIRST: “I’M”

Answer 30

inadequate legal remedy alternative: Replevin (Sheriff can’t recover, re-delivery bond), Ejectment (sheriff won’t act) and money damages (too speculative, insolvent, irreparable injury, mulitiplicity of actions) no good

Question 31

Permanent Injunction STEP TWO: “FEELING”

Answer 31

Feasibility of enforcement: negative injunction no enforcement problem; Mandatory injunction: enforcement is difficult to supervise, concern with effectively ensuring compliance. IF GREAT SKILL, JUDGMENT OR TASTE REQUIRED: DENY INJUNCTION; Out-of-State act required: GRANT IF D IS RESIDENT

Question 32

Permanent injunction STEP THREE: “BOLD”

Answer 32

Balance Hardships:1) Gross disparity req’d b/w D’s detriment and P’s benefit to deny injunction 2) NO BALANCE IF WILLFUL BEHAVIOR 3) Consider money damages instead of injunction; 4) Hardship to the Public

Question 33

Permanent Injunction STEP FOUR: “DETERMINED”

Answer 33

Defenses: 1) Unclean hands only available if P’s bad behavior relates to lawsuit. 2) Laches: concerned with AFFECT of passage of time, clock runs when P learns of injury, cuts off P’s rights when it is UNREASONABLE and PREJUDICIAL to D. If Laches applies consider money damages
3) Impossiblity 4)Free Speech

Question 34

Who is bound by injunction

Answer 34

Agents, employees, D, others acting IN CONCERT with notice (Guy selling t shirts knowing manufacturer had injunction to stop)

Question 35

Erroneous injunction rule:

Answer 35

STILL ENFORCEABLE, D must have it modified or resolved

Question 36

Contempt:

Answer 36

Civil contempt: used to coerce defendant (money fines, imprisonment but he can get himself out)
Criminal contempt: used to PUNISH D (money fines, imprisonment but can’t get out)

Question 37

Injunctive relief is always coupled with?

Answer 37

Damages for harm suffered prior to injunction

Question 38

Evaluating a tort remedies claim, what overall things do you think about for seeing what remedy to apply?

Answer 38

Was Plaintiff Hurt? (Compensatory) Was Defendant benefitted? (Restitution) Does P want property back? (Replevin/Ejectment) Is plaintiff still being harmed? (injunction)

Question 39

Available remedies for Dispossession:

Answer 39

Compensatory; Restitution (If D benefits); Replevin; Mandatory Injunction; Constructive Trust/Equitable Lien; Self-help (reasonable force to recapture)