tort remedies review outline

8/10/2019 Tort Remedies Review Outline

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Christin Hill Bar Review

REMEDIES

TORT REMEDIES

I. DAMAGESA. Compensatory Damages: Plaintiff is entitled to compensatory damages to put her in the position she

would have been had the wrong not occurred. Must show:a. Causation: But forb. Foreseeability: The inury must been foreseeable at the time of the tortuous actc. Certainty: The damages cannot be too speculative.

i. !pplies to economic losses "special damages#$ but not non%economic damages"general pain and suffering$ disfigurement#

ii. All or Nothing Rule: &or future damages$ plaintiff must show that they are more li'elyto happen than not.

d. Unavoidability: The plaintiff must ta'e reasonablesteps to mitigatethe damagee. Calculation: single lump sum payment$ discounted to present value. &orget inflation.

B. Nominal Damages: (here the plaintiff has no actual inury$ the court may award nominal damages toserve to establish or to vindicate the plaintiff)s rights.

C. Punitive Damages: (here the plaintiff)s inury results from willful, wanton, or malicious conduct onthe part of the defendant$ the court may award punitive damages topunishthe defendant.

a. Plaintiff must firsthave been awarded compensatory$ nominal$ or restitutionary damages.

b. Calculation: Must be relativelyproportionalto actual damages. *++,: single-digit multipleof actual damages unless the defendant)s conduct is e-treme.

II. RESTITIONAR! REMEDIESA. Restitutionary Damages: (here the defendant has been unustly enriched$ the court may award

damages based on the benefitto the defendant.a. The amount is calculated based on the valueof the benefit.b. owever$ where both compensatory and restituionary damages are available$ plaintiff cannot

get both. /nstead$ she must ma'e an election of the two. 0enerally$ the plaintiff should beawarded the larger sum of the two.

B. Replevin: /n an action for replevin$ the plaintiff may recover possession ofspecific personal property.a. Must show: "1# that P has a right to possession$ and "2# there is wrongful withholdingby 3.b. Timing: !s long as 3 is still in possession$ P can recover the chattel beforetrial.

i. But$ to do so$ plaintiff will have to post a bond.ii. !nd$ defendant may defeat an immediate recovery by posting a re-delivery bond.

Through which$ the defendant can 'eep the chattel until after the trial.c. 0enerally coupled with damages for lost use of the benefitduring the wrongful withholding.d. 4o recovery is sale to a Bona &ide Purchaser

C. E"e#tment: /n an action for eectment$ the plaintiff may recover possession of specific real property.a. Must show: "1# P has a right to possession$ and "2# there is a wrongful withhold by3.b. 5nly available against defendant who haspossessionof the property.c. *sually coupled with damages for lost use of the benefit during the wrongful withholding.

D. Constru#tive Trust: 67uitable remedy imposed by the courts when the retention of property by 3%wrongdoer would result in unust enrichment. 3 serves a trustee and must return the property to P.

a. 8egal remedies muse be inade7uate "e.g the defendant is insolvent or the property is uni7ue#.b. Tracing: P can follow the property to whatever form it ta'es$ as long as the trust re can be id%ed

c. ona fide purchasersprevail over plaintiffd. Plaintiff prevails over unsecured creditors.E. E$uita%le &ien: where the defendant has improperly ac7uired title to a property$ an e7uitable lien allows

the court to order an immediate sale of the property$ and the monies received will go to the plaintiff.a. Must show "1# 3 misappropriated P)s property creating a debt or obligation to pay$ "2# P)s

property can be traced to property held by 3$ "9# retention would unust enrichment.b. /f the proceeds from the sale are less than the fair m't value of the property when it was ta'en$

a deficiency udgment will issue for the difference and can be used against 3)s other assets.c. (here misappropriated money is used to improve property$ only an e7uitable lien is available.

"e.g house remodel#d. +amerules as constructive trusts: tracing allowed; B&P)s prevail.

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III. IN'NCTI(E RE&IE)

A. Temporary In"un#tive Relie*: To recover to recover temporary in. relief$ P must meet a two%part test:a. !rreparable !n"ury: P must show that without the inunction$ she will incur irreparable inury

while waiting for a full trial on the merits.i. Balancing Test: harm to P if inunction is denied v. harm to the 3 if inunction is grantedii. (here 3 created the hardship < even if substantial < balance li'ely to weigh in P)s favor

b. #i$elihood of success: P must show that he=she has a strong li'elihood of success on themerits. The court will loo' to the probability of this success.

i. This is not an in7uiry on success of obtaining a permanent inunction.ii. The court should also impose a bondre7uirement on the plaintiff to reimburse the

defendant if the inunction inured him=her and the plaintiff does not succeed.B. Permanent In"un#tive Relie*: P must meet a five%part test >/ Put &ive Buc's 3own?

a. !nade%uate #egal Remedy: Money damages may be too speculative; 3 may be insolvent; thesheriff may be unable or unwilling to enforce a replevin or eectment action.

b. &roperty !nterest'&rotectable !nterest:i. Traditional (iew: e7uity will grant relief only were there is a protectable property right

involved.ii. )odern (iew: !ny protectable interest will suffice.

c. Feasibility of *nforcement: only an issue with mandatory inunction. 6nforcement problems

may stem from "1# the difficulty of supervision or "2# concern with effectively ensuringcompliance.

d. alancing of +ardships: Plaintiff)s benefit v. 3efendant)s hardship @ the public)s hardship >But$if the defendant)s conduct was willful$ no balancing?

e. efenses$ lac' thereof:i. #aches: (here there has been an unreasonable lapse of time between when the P

learned of the inury and when the P filed the lawsuit$ and that lapse of time ispreudicial to the 3$ laches will cut off the right to inunctive relief "but not A damages#.

ii. Unclean hands: The persons see'ing e7uitable relief must not be guilty of anyimproper conduct that is related to the lawsuit.

iii. !mpossibility: it would be impossible for the 3 to carry out the terms of the inunction.iv. Free peech: /nunction may be denied on free speech grounds.

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CONTRACT REMEDIES

I. DAMAGESA. Compensatory amages: based on inury to the P

a. e7uires: "1# causation; "2# foreseeability "tested at the time of formation; "C# certainty; "9#unavoidability "mitigation#

b. Conse%uential damages: available for related damages foreseeable at the time of formationc. eller breaches a land sale .: ,3 D out%of%poc'et loss 5 benefit%of%the%bargain

B. Nominal damagesare also allowed. But$punitive damagesare 45T allowed "if 3)s conduct is willful$characteriEe as a tort$ so you can get P3s#

C. #i%uidated damageclauses are permissible$ if they are validd. 3amages are very difficult to ascertain at the time of F formatione. This was a reasonable forecast of what they would be.

esult: if valid only li7uidated damage amount; if invalid actual damages available.

II. RESTITTIONAR! REMEDIESA. /f F is unenforceable!&T6 the P has performed "e.g. mista'e$ capacity$ +o&$ illegality#

a. P can get restitutionary damages for property=money give to$ or services rendered for 3 for theG!8*6 of the B646&/T.

i. 4ot necessary to find that the 3 actually benefited$ only that 3 received a benefitii. /f the value of the services is greater than the F rate$ P can still recover it.

b. P can get the property bac' if it is uni7ue or 3 is insolvent.c. /uasi-.: P awarded the reasonable value of 3)s illgotten gain or the difference between the

present value of the good less the value before the benefit conferred by P.B. /f F is breached

a. (here P is the non%breaching party:i. P may recover restitutionary damages for property=money given to$ or services

rendered for 3 for the G!8*6 of the B646&/T.ii. P can get the property bac' if it is uni7ue or 3 is insolvent.

b. (here P is the breaching party:i. Traditional Giew: P may recover 45T/40ii. Modern Giew: P may recover restitutionary interest$ but it ,!445T be greater than the

F rate and is reduced by any damages suffered by 3 as a result of the breach.

III. SPECI)IC PER)ORMANCEA. H part chec'%list < >/)m 3oing &ine Mom and 3ad? P must show:a0 !nade%uacy of legal remedies. 3amages may be inade7uate b=c "1# they)re speculative$ "2#

defendant is insolvent; "C# multiple suits are necessary; "C# the thing bargained for is uni7ue"tested at the time of litigation$ not F formation#. 8i7uidated damage clause I A is inade7uate

b0 efinite and Certain Terms: Terms of the F must be sufficient certain to constitute a valid Fc0 Feasibility of enforcement. J-. over the partiesK Too much court supervision neededKd0 )utuality of remedy: must show the other side can also secure performance. 5nly an issue

where P lac's capacity: ct will reect mutuality if it feels securethat P can and will perform.e0 #ac$ of efenses: *nclean hands; laches; unconscionability; mista'e; misrepresentation;

e7uitable conversion "sale to B&P#; +o& "satisfied if "i# part performance "ii# in reliance on F#.B. pecial problems:

a0 eficienciesfact patterni. +eller as P: ,!4 enforce F if the defect is minor. ,!445T enforce F if the defect is

maor unless the seller can cure the F before closing.ii. Buyer as P: ,!4 enforce the F even if the defect is maor "abatement < court will lower

the purchase price to ta'e into account this defect#. ,!445T enforce the F if thedefect is very maor.

b0 Time of the *ssence Clause< w= forfeiture provision. 67uity abhors forfeiture.i. !void forfeiture "and award +P#$ where: "1# loss to the seller is small; "2# tardiness is de

minims; "C# waiver < seller has accepted late payments in the past; "9# buyer wouldsuffer undue hardship

ii. Modern trend: cts would give P restitutionary relief if +P were not granted. But$ if buyerhas not made even an initial payment < the forfeiture clause will be strictly enforced.

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c0 *%uitable conversion: real property interest of the buyer and seller are switched upone-ecution of the land F.

i. Thus$ the buyer will be regarded as having the real property interest "the specificallyenforceable right to the land#.

ii. +eller will be regarded as having the personal property interest "the specificallyenforceable right to the money#.

d0 Personal +ervices Fs: Covenants Not to Competei. The covenant must protect a legitimate interest

ii. The covenant must be reasonable in both is geographical and durational scope.

I(. RESCISSION: e7uitable remedy whereby one who is fraudulently induced into entering a F may rescind F.2%+tep !nalysis:

A. 3etermine if there are groundsfor the rescission:a. &ormation grounds: "1# mista'e; "2# misrepresentation "C# coercion; "9# undue influence; "H# lac'

of capacity; "L# failure of consideration; "# illegality.b. Mutual mista'e of material fact D groundsc. Mutual mista'e of collateral fact I groundsd. *nilateral mista'e I grounds *486++ the non%mista'en party 'nows or should have 'nown of

the mista'e.B. 3etermine if there are valid defenses: *nclean hands; laches "negligence is 45T a good defense#.C. pecial &roblems:

e. *lection of remedies:i. P sues for damages first: rescission is 45T allowedii. P sues for rescission first: damages !6 allowed

f. Availability of Restitution: if a P who is entitled to rescission has previously renderedperformance on the F$ he=she can get compensated for it or get the property bac' viarestitution.

g. #egal Rescission: P accomplishes this by her own actions.i. P gives notice and tenders bac' any consideration receivedii. P then sues for restitution for anything given to 3.

(. RE)ORMATION: ct. modifies a written agreement to conform w= the parties) original understanding. C%+tepsA. 3etermine if there is a valid contractB. 3etermine if there are groundsfor reformation

a. Mutual mista'eb. *nilateral mista'e /& non%mista'en party F45(+ of mista'ec. Misrepresentation

C. 3etermine if there are valid defenses: unclean hands$ laches

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tort remedies review outline

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