Torts Remedies Flashcards
Torts Remedies
Damages
- Compensatory [Causal, Foreseeable, Certain, Unavoidable]
-Nominal
-Punitive
Legal Restitution
- Money
- Replevin (chattel)
- Ejectment (real property)
Equitable Restitution
- Constructive Trust
- Equitable Lien
Injunction
- Temporary Restraining Order
- Preliminary Injunction
- Permanent Injunction
Defenses
- Laches
- Unclean Hands
Legal Damages
Damages are a legal remedy awarded to make a plaintiff whole
Compensatory Damages
Compensate plaintiff for injury or loss. Monetary value of plaintiff’s harm (ie FMV of item, loss of use, etc.)
Limiting Issues
- Causation: Damages must be caused by the tortious act (“but for” causation)
- Foreseeable: Damages must be foreseeable by a reasonable person at the time of the tortious act (proximate causation)
- Certainty: Damages must be capable of being calculated with certainty and must not be overly speculative
- Unavoidable: The plaintiff has a duty to take reasonable steps to mitigate his losses.
Avoidable consequences doctrine: limits damages to those that could not have reasonably been avoided
Types of Compensatory Damages
General Damages: noneconomic losses directly attributable to the trot that all plaintiffs would have because they flow as a natural result of the tort (ie pain and suffering)
Special Damages: economic losses directly attributable to the tort that some plaintiffs may have and are unique to each plaintiff (ie medical bills, lost wages)
Past and Future Damages
Past Losses: a plaintiff can recover for past losses
Future losses: a plaintiff can recover for future losses only if they can be calculated with reasonable certainty
Pure Economic Loss
Not recoverable UNLESS the tort is intentional interference with business relations
Nominal Damages
Awarded when the plaintiff’s rights have been violated but the plaintiff suffered no loss
Purpose: Vindicate plaintiff’s rights
Punitive Damages
Awarded when defendant has displayed willful, wanton, or malicious tortious conduct. Measured by appropriate punishment for the misconduct.
ONLY AWARDED IF:
1) Actual damages (compensatory, nominal, or restitutionary);
2) Culpability of defendant is greater than “negligence”;
3) They are relatively proportionate to actual damages
Legal Restitution
When a defendant has derived a benefit (or been unjustly enriched), and it would be unfair to allow the defendant to keep that benefit without compensating the plaintiff (or where the plaintiff wants his property back)
Three Types
- Money Restitution: plaintiff is awarded the monetary value of the benefit received by the defendant (measured by the value of defendant’s gain)
Can EITHER get money restitution OR compensatory.
- Replevin: recovery, before trial, of a specific chattel wrongfully taken from a plaintiff who has right to possession
Property is ordered returned and plaintiff can receive damages for time he was deprived of chattel - Ejectment: used to recover specific real property from a plaintiff who has the right to possession but was wrongfully excluded
Property is ordered returned and plaintiff can receive damages for time he was deprived of the real property
Equitable Restitution
Only available when money damages is inadequate. Goal is to prevent unjust enrichment.
Types
-Constructive Trust
- Equitable Lien
Constructive Trust
Legal fiction created by court to compel defendant to convey title to unjustly retained specific property to the plaintiff (if it has been wrongfully acquired by the defendant).
Sole obligation of the trustee is to transfer property to plaintiff.
Requires:
1) Wrongful act leading to property taken;
2) Defendant has the legal title to convey (mere possession is not sufficient);
3) Money damages must be inadequate
- Money damages are too speculative, insolvent defendant,
replevin is unavailable (property has been sold), property is
unique (real property is always unique
4) Property can be traced to the wrongful behavior
- P receives benefit of increase in value, property must be solely
traceable to current form, presume investments come from
wrongdoer’s funds first, presume defendant spends own money
first, withdrawn traced proceeds are gone.
5) Priority of plaintiff over third parties with interest – Bona fide purchasers with legal title (incl. secured creditors) prevail over P, but P prevails over unsecured creditors
6) No deficiency judgment will be awarded for any shortfall
Equitable Lien
Creates a security interest in the property held by defendant. Property acts as collateral for the money owed to the P.
Similar to Constructive Trust except deficiency judgments permitted and property can be traced to commingled funds.
Requires:
1) Wrongful act leading to retention of property from rightful owner (ie embezzlement, fraud, theft, conversion, etc.)
2) D must have wrongfully acquired legal title to the property; mere possession is not enough
3) Money damages must be inadequate
- Money damages are too speculative, insolvent defendant,
replevin is unavailable (property has been sold), property is
unique (real property is always unique
4) Property can be traced to the wrongful behavior
- P receives benefit of increase in value, property need not be
solely traceable to current form, presume investments come
from wrongdoer’s funds first (investor fiction), presume
defendant spends own money (spender fiction) first, withdrawn
traced proceeds are gone.
5) Priority of plaintiff over third parties with interest – Bona fide purchasers with legal title (incl. secured creditors) prevail over P, but P prevails over unsecured creditors
6) Deficiency judgments may also be awarded for any shortfall
Injunction
Equitable remedy where court orders one to perform an act (affirmative or mandatory injunction) or stop performing an act (negative injunction)
Three Types
- Temporary Restraining Order (TRO)
- Preliminary Injunction
- Permanent Injunction
Temporary Restraining Order (TRO)
Designed to preserve the status quo for a short time pending further litigation regarding a preliminary injunction. Typically no longer than 10 days (14 until FR).
- Notice is typically required, but can be obtained ex parte in exceptional circumstances (an emergency or when notice would result in the harm trying to be avoided)
Requires:
1) Irreparable harm during waiting time if not granted;
2) Likelihood of success on the merits of the underlying claim;
3) Money damages are inadequate
- (ie too speculative, inadequate to compensate for loss, insolvent
defendant, replevin or ejectment unavailable, multiplicity of suits,
prospective tort (not occurred yet but is expected to occur),
property is unique
4) Balancing of hardships must favor the plaintiff
a) large disparity in hardship goes to the most impacted party;
b) willful misconduct weighs heavily against the wrongdoer;
c) Public interest - hardship to the public and/or any public benefit
5) No defenses are available. Laches and unclean hands are equitable defenses.
a) Laches - provides defense when plaintiff has unreasonably
delayed, resulting in prejudice to the defendant
b) Unclean Hands - provides a defense when a plaintiff has
conducted herself unfairly (unethically) in in the transaction in
the dispute
c) Ineffective defenses that may be raised:
Coming to the nuisance
Sale to a bona fide purchaser
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Preliminary Injunctions
Designed to preserve the status quo pending full trial on the merits. Harder to obtain than TRO. Same elements as TRO.
Key Purpose: preventing irreparable harm waiting for the full trial on the merits
Distinguished from TRO:
1) Cannot be ex parte
2) Timing and purpose
3) Key purpose is to prevent irreparable harm before full trial on the merits vs TRO preliminary injunction hearing
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