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*****Tort Remedies*****
I.
Tort Remedies
a. Legal Remedies
i. Damages (defendant is ordered to pay money to the plaintiff)
1. Compensatory Damages (based on the injury/harm to the plaintiff)
a. Put the injured party in the position he would have been in
had the injury not occurred (make him whole)
b. Four Requirements for Recovery:
i. Actual Causation
1. But for the defendants conduct, the injury
would not have occurred
ii. Foreseeability (proximate causation)
1. The injury must have been foreseeable by
the defendant at the time of the tortious act
iii. Certainty
1. The damages cannot be too speculative
a. Past losses must be established with
more certainty than future losses
(e.g., past medical expenses must be
proven with records/receipts; future
medical expenses can be more
speculative)
2. If there is a historical record, that can help to
provide certainty (e.g., If defendant causes
plaintiffs restaurant to burn down, and the
restaurant has been in business for three
years, the historical record of the
restaurants profits over the years can be
used to determine what his lost profits will
be for the next year while the building is
being rebuilt)
3. For future damages (e.g., future lost
income), the plaintiff must show that the
damages are more likely to happen than not
(all or nothing rule)
a. If the odds are more than 50/50,
plaintiff can recover everything, but
if the odds are less than 50/50, the
plaintiff can recover nothing
iv. Unavoidability
1. Plaintiff must have taken reasonable steps to
mitigate damages
c. Personal Injury Torts (a particular problem area)
i. Certainty Rules
1. Certainty rules apply with regard to
economic losses (special damages) (e.g.,
medical expenses, lost earnings).
2. Certainty rules do not apply to noneconomic losses (general damages) (e.g.,
pain and suffering; permanent
disfigurement). The jury may award any
amount is wishes (subject to proper
instructions)
ii. Form of Judgment Payment
1. Award must be a single lump sum payment
(cannot be made in installments)
2. Award must be discounted to present value
3. Inflation is not taken into account (but there
is a modern trend to take this into account)
2. Nominal Damages (awarded when the plaintiff has no actual
injury)
a. Serve to establish or vindicate the plaintiffs rights
i. Examples: Defendant regularly trespasses across the
plaintiffs property to get to the bus; Defamatory
statements made against a plaintiff where there is no
actual economic injury (doesnt lose his job, etc.)
3. Punitive Damages (awarded to punish the defendant)
a. Requirements:
i. Plaintiff must have first been awarded
compensatory, nominal, or restitutionary damages
ii. Defendants fault must be greater than negligence
iii. Award must be for an amount relatively
proportionate to actual damages (some
proportionality)
1. Rule of thumb: Punitives awarded should be
no more than a single digit multiple of actual
damages
b. Restitutionary Remedies (based on the concept that the defendant should not be
unjustly enriched)
i. Legal Restitutionary Remedies
1. Restitutionary Damages (based on the benefit to the defendant)
a. If both compensatory and restitutionary damages are
available, plaintiff must elect one or the other (the one that
will give him the greatest recovery)
i. Example: Plaintiff had a piece of vacant land
containing a dirt road that the defendants trucks
crossed everyday as a shortcut. Plaintiff isnt really
injured (nominal damages), but defendant benefited
(less gas expended, less travel time, etc.).
iii. There is no contempt (criminal or civil) for noncompliance with a money judgment
1. Exception: Defaults in alimony and child
support payments
e. Injunctions are almost always coupled with damages for
injuries incurred in the time period prior to obtaining the
injunction
II.
NOTE: Satisfaction
a. If a plaintiff recovers full payment from one tortfeasor, either by settlement or
payment of a judgment, there is a satisfaction and she may not recover further
against any other joint tortfeasors
i. However, until there is a satisfaction, she may proceed against other
jointly liable parties
*****Contract Remedies*****
III.
Legal Remedies
a. Damages
i. Compensatory (based on the injury to the plaintiff)
1. To make the party whole (as if the contract had been fully
performed)
2. Requirements:
a. Causation (but for the defendants breach, the injury to the
plaintiff would not have occurred)
b. Foreseeability (at time of contract formation)
c. Certainty
d. Unavoidability (mitigation of damages)
ii. Consequential Damages
1. Available for related damages (those that dont flow naturally from
the breach) that were foreseeable at the time of formation
a. Example: Reputation Fact Pattern. A construction contract
between a company and a contractor provided for a certain
quality of materials to be used. The contractor intentionally
used substandard materials. Compensatory damages for
either tearing the building down and rebuilding, or for a
reduced sale value, are available. Also, the company had a
lot of publicity about this construction project and the
companys reputation would take hit because it either
wouldnt sell it with top of the line materials or the project
would be delayed. Company may be able to recover
consequential damages for this because contractor knew
about all of the publicity and the reputation of the company
at contract formation.
iii. Nominal Damages
1. Can be recovered (but in a commercial setting, no one would really
sue for them)
IV.
V.
ii. Replevin
iii. Ejectment
b. Equitable Restitutionary Remedies
i. Constructive Trust
ii. Equitable Lien
Equitable Remedies
a. Specific Performance (to force a party to perform the contract according to its
terms)
i. Requirements:
1. Contract Is Valid and Its Terms are Certain and Definite
a. Plaintiff must show the contract terms with more certainty
and definiteness than what would be required in an action
for money damages at law
2. Contract Conditions of the Plaintiff Are Satisfied
a. Plaintiff must be able to show that his contract conditions
have been fulfilled (already performed, ready and able to be
performed, or are excused from being performed)
b. The Only Two Bar Exam Fact Patterns (both involving land
sale contracts)
i. Deficiencies Fact Pattern (seller cannot deliver the
agreed upon consideration; e.g., structural damage
to a house that has been contracted for purchase)
1. If Plaintiff Is the Seller
a. Plaintiff can enforce the contract
through specific performance only if
the defect is minor
b. Plaintiff cannot enforce the contract
through specific performance if the
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
TORTS
Destroyed Property or Damaged Property (including encroachment/nuisance)
a. Compensatory Damages
Dispossession of Personal Property
a. Compensatory Damages; Restitutionary Damages (if defendant benefits);
Replevin; Mandatory Injunction (if chattel is unique and damages/replevin wont
work); Constructive Trusts/Equitable Liens (particularly if defendant is insolvent
and/or tracing is involved); Self-Help (reasonable force to recapture);
Simple Trespass
a. Nominal Damages; Injunction (to avoid multiplicity of actions)
Destruction/Damage of Realty
a. Compensatory Damages; Injunction
Dispossession of Real Property
a. Compensatory Damages; Restitutionary Damages; Ejectment (since this is
available, no injunction is available)
Encroachment
a. Compensatory Damages; Injunction; No Restitution
Nuisance
a. Compensatory Damages; Injunction; No Restitution
Personal Injury Torts
a. Compensatory Damages; Injunction (only against prospective intentional tortious
conduct)
Fraud
a. Damages; Constructive Trust/Equitable Lien
Note: Always consider if the tort claim should also be analyzed as a contract case and
whether punitive damages should be awarded (if conduct is really wrongful and
egregious)
CONTRACTS
XVI. Personal Property Sale Contracts