TRAVIS FALL 2011
a. THE BASIC REMEDIAL TOOLS
i. Why Do People Sue:
1. Money, validation, enforce a contract, get D to do something, prevent D
from doing something, protection of an interest/right/valuable, tool to
prompt behavior, prevent unjust enrichment, clarity, change policy/law,
gain leverage in other suit or as a discovery tool
Damages Coercive Orders
Compensatory (from injury to $) Injunctions:
Nominal (Symbolic award) Preventative
Punitive (punish or deter egregious Interlocutory
Quasi-contract Constructive Trust
Quantum Meruit Equitable Lien
b. LAW V. EQUITY
Definition Damages ($) Injunctions (Action/inaction)
Decision Maker Jury Judge
Flexibility Mechanical (treated as right More flexible with relief
less discretion) (more discretion)
Priority First Option Fall back option (when legal
remedy is inadequate)
Defenses Fewer defenses More defenses because it’s
about justice as a whole
Subject of Judgment In rem (about thing/item, In Personam (orders to D as a
money) person and contempt power)
a. COMPENSATORY DAMAGES
i. CONTRACT DAMAGES (can Prove Breach of Contract)
1. Three Different Measures
i. the goal is to complete the contract from the plaintiff’s
perspective, put the plaintiff in the position they would
have been in had the contract been completed, plaintiff gets
the benefit of the bargain
1. Difference between the perfect world (proper
performance) and actual world
ii. Eastlake Construction Co. v. Hess (Wash 1984)
1. P Hired D to build condos. D breached by not
installing specified kitchen cabinets, court found
damages by: value of cabinets specified – value of
them installed. The court could also have measured
the FMV of the condo with installed cabinets –
FMV of the condo with specified cabinets.
b. Reliance (P)
i. The goal is to undue the contract from the plaintiff’s
1. Difference between the world before the contract
was formed and the actual world (P can pay money
to 3rd parties here)
c. Restitution (D)
i. The goal is to undo the contract from the defendant’s
1. Difference between before the contract was formed
and the actual world. Make sure the D was not
unjustly enriched (undo what flowed to D)
i. Liquidated Damages Clause
1. Contracting Parties can stipulate to a specific sum
on money that would be payable as damages to a
non-breaching party for a material breach of the K
a. Damages must be difficult to ascertain at the
time of the K
i. Can Show 3 ways:
ii. Foreseeability Problem
iii. Uncertainty Problem in Proving
causation/fact of damages and/or
iv. Proof of damages problem
b. Amount must be a reasonable approximation
i. To determine if reasonable estimate,
can compare it to actual harm or
ii. Hard to prove damages can be taken
into account to say the estimate is
3. Factors to Consider
a. Terminology Matters
i. “Penalty” is not Liquidated Damages
Clause, but can still get ordinary
measure of damages
ii. Must be express not implied in K
b. Intent of the parties
c. Unequal bargaining power
d. Fixed sum regardless of gravity of the
e. Recovery always greater than actual
damages cost (more like a penalty)
f. Recovery in specific facts greater than actual
g. Reasonable if LD acts as a ceiling because P
could get more under the contract
h. Equity, should courts enforce?
1. Mitigation is not considered here, get entire LD
1. Burden of Proof on person challenging clause
iv. Alternative Performance Argument
1. One side can argue, LD not breach so no damages,
just alternative performance
v. Truck-Rent-A-Center, Inc. v. Puritan Farms 2nd., Inc. (N.Y.
1. K, D leased 25 new milk delivery trucks from P for
a term of 7 years. D would pay weekly fee and had
option to buy after a year. LD cause said ½ of all
rental fees due in the K period. D terminated after 3
2. Damages Difficult to ascertain, could P re-rent
trucks? It was a reasonable estimate because trucks
used by D, so makes sense that the rental value
would be cut in ½, was a dying market so allocated
risk, no disparity in bargaining.
vi. Lake River Corp. v. Cardorundum Co. (7th Cir. 1985)
2. No Double Counting
a. No double counting or else P will be put in a better position than if
the K had been completed
b. What can you get at the same time?
i. NO Expectancy + reliance
ii. YES Reliance + Restitution (as long as no double counting)
iii. YES Expectancy + restitution (as long as no double
3. How to Chose A Theory
a. P can chose which theory they want
i. If you have a losing contract, you would be happy about the
1. If losing K (and no expectancy damages) try for
restitution or reliance
b. If you cannot chose expectation damages with reasonable
certainty, try for restitution or reliance
4. Buyers Breach/Seller’s Remedies
a. Basic Measure’s For Buyers Breach
1. Remaining K price – variable costs saved
1. Variable costs expended – portion of K price
1. Value to D directly at P’s expense – portion of K
b. Basic Measure for Buyers Breach (This one or above?)
i. K price –
ii. market price/resale price –
iii. already paid k price +
iv. incidental damages –
v. variable costs saved
1. If no FMV, can’t resell, or lost volume seller then
don’t subtract market price/resale price
c. Basic Rules
i. Seller can get incidental damages, but NOT consequential
ii. Incidental Damages
1. Direct harm that the seller suffers, usually a cost
necessary to mitigate harm from the breach
a. Transportation, storage, adjustments to make
iii. Consequential Damages
1. Indirect harm to seller, usually the seller’s lost
profits from some other transaction
a. Foregone employment with someone else,
profits would have been made from prestige
if K had been performed
i. We don’t want buyers insuring the sellers on their entire
1. If the K is going to make or break the business, the
seller should be on the hook.
ii. We want to encourage efficient breach.
e. Sprague ? Or Under Nominal Damages?
5. Seller’s Breach/Buyers Remedies (Especially in Construction)
a. Basic Measure (Dif than above basic damage measures why?)
i. Cost of repair/replace/complete +
1. Unless clearly disproportionate to the value of the
repair, then get diminution in value
2. Cost of Repair
a. Costs of material + labor
b. (Lost profits not subtracted here)
3. Diminution in Value
a. Difference between value as is and value if
it conformed to the K
ii. Incidental damages +
1. Delay In Construction
a. Lost Use/reasonable rental Value/Interest
(No double counting)
iii. Consequential damages –
1. Lost business opportunities with 3rd parties
iv. Costs saved
1. what buyer did not take out on the contract price,
other expenses saved like advertising
v. When is cost clearly disproportionate to the value of the
Ratio Cost of Repair v. Difference in Value of Item
Cost of Repair v. Difference in Value of entire K
Cost of Repair v. Overall K
Cost of Repair v. Assets of D
Personal v. Commercial Personal, more likely to get cost of repair
Aesthetics v. Functional Aesthetics, more likely to get cost of repair
Bad Faith Courts informally consider this, if bad faith, more likely to get cost
Repairs Already Done If P already repaired and wants reimbursement, likely to get it
Size of K/ Other Damages Likely to get award cost where damages are large and cost of repair
Awarded is small, less likely if K was cheap but repair is very expensive
Uncertainty If value of repair is uncertain, usually give the benefit of the doubt
to the buyer
6. Lost Volume Seller
a. When the seller would have sold another good to another party,
just giving him damages for the first good is not going to make
i. Note: allows seller to recover for both goods, applies to Ks
for services and lease agreements too
b. Applies in two other situations
i. No FMV of the good
ii. Cannot resell the good
1. Do not subtract the resale or rental price in these
i. Seller would have to solicit the additional sale even if there
had been no breach
ii. Seller would have succeeded in the solicitation
iii. Seller would have been able to perform both Ks
iv. Possible fourth requirement, the addition sale would have
ii. TORT DAMAGES
a. To make the injured party whole by substituting money for their
losses. Putting someone in the same position they were in before
the tort occurred. Most similar to reliance in the contract context.
a. (3) Injury to personal property
b. (4) Injury to real property
c. (5) Physical Injury to person
3. Personal Property
i. Default Rule
1. Pre-tort value (FMV at time and place right before
destruction ) – scrap value (what could get for
property as scrap) + loss use (maybe applies. Like
sub. Or interest or what someone could have rented
that for that time, or if damage is income producing,
actual value to P. For rental and actual value to P,
need to subtract costs).
a. FMV = what a willing buyer would pay a
willing seller on the market when both have
all the info. Most common, can always get
this. Want to always argue for actual value
to P or sentimental value to P. Argue actual
if no market for item.
b. Actual Value = original cost, replacement
cost, cost to reproduce, depreciation in
i. Clothes/household items.
1. Only has scrap value (perm. Damaged has more)
iii. Lane v. Oil Delivery, Inc. (1987)
1. Family fire in home caused by oil delivery
company. Remanded and said P may not be entitled
to full replacement cost because condition of items
matters. P must prove such certainty as the nature of
the case permits. Owner may give an opinion of
worth although he or she is not an expert. The basis
for opinion cannot be mere speculation and witness
must establish grounds for any opinion given.
iv. Carbasho v. Musulin (W. Va. 2005)
1. P hit by D, P’s injuries settled , but D killed her dog
– element of a tort. Held for FMV, wont even give
actual value. P wanted court to use sentimental
value but court says valuation problem with this.
v. Sentimental Value Issue
1. Usually actual or intrinsic value to P (not
2. Sentimental value to P only to items generally
capable of generating “purely sentimental feelings”
( no other worth), not just emotions peculiar to the
owner. Objective standard.
a. Can include racing rings not wedding rings.
Heirlooms, trophies, photos.
vi. Other Issues:
1. Wholesale v. Retail
a. If owner is merchant or consumer makes
difference in how to measure value.
2. Clothes/Household Items
a. FMV unless holding them for business
a. Maj. FMV
b. Min, Actual to P
b. Damaged Permanent
i. Default Rule
1. Pre tort value (fmv) – post tort value (fmv) + loss
use (maybe applies. Like sub. Or interest or what
someone could have rented that for that time, or if
damage is income producing, actual value to P. For
rental and actual value to P, need to subtract costs).
a. Dim in value = change in value of property
or pre tort – post tort.
1. Property is permanently damaged where the repair
is not possible or economically feasible
a. Maj: if cost of repair exceeds pre-tort value
of the property.
b. Min: if cost of repair exceeds diminution in
c. Damaged Temporary/Reparable
i. Default Rule
1. Reasonable cost to repair + loss use (maybe applies.
Like sub. Or interest or what someone could have
rented that for that time, or if damage is income
producing, actual value to P. For rental and actual
value to P, need to subtract costs).
1. Repair is possible and economically feasible, can be
brought back to original value. P can get cost to
a. Maj: if cost of repair does not exceed pre-
tort value of the property.
b. Min: if cost of repair does not exceed
diminution in value
1. Property owner who holds property for personal
reasons can recover reasonable restoration costs
even if those costs exceed the diminished value of
the property and the pre-tor value of the property.
2. The “reason personal” rule allows an owner to elect
to recover restoration costs rather than diminution
in value in appropriate cases where restoration is
reasonable = reason personal must be objectively
reasonable and restoration costs must be objectively
reasonable in light of P’s reason personal and the
diminution in value of the land.
iv. If cannot be repaired to its original condition
1. P is entitles to recover diminution in value of the
land, measured as the difference between the market
value of the property immediately before damage
and market value immediately there after
v. Hewlett v. Barge Bertie (1970)
1. Barge owner sunk barge, finds some uses for it,
another barge hits it court awarded $2,895,
damaged temporarily and used majority view to cap
at pre-tort FMV, although the $2,895 did not go
d. Permanently and Temporarily Damaged Property need to no?
1. Cost of repair + diminution in value + lost use
e. Limits to all Above 3 Categories? (Can be unfair to P)
i. Reasonable Cost To Repair:
1. Majority caps this at pre-tort FMV (P’s want this)
2. Minority caps this at drop in FMV (Diminution in
4. Real Property
a. Miller v. Cudahy Co. (10th Cir. 1988)
1. P owns land used for farming. D, a Salt Co., has salt
seeping into P’s property in an under ground aquifer
which was used by P for irrigation. P’s soil ruined,
could no longer grow lucrative crops. Tort harm to
1. Court held that the damage was temporary and
repairable (fixable) so applied cost of repair + lost
use. However, here, P did not repair and cost to do
so was infeasible (salt will be there for 200 years)
so court awarded P lost crop profits/ongoing lost
use (corn – wheat), which as $3 million.
a. P wanted temporary repair because can re-
sue every time new injury. Also gives D an
incentive not to harm again.
b. D wanted damaged permanently as to bar
the SoL claim and only pay once.
b. Measures are The Same as Real Property
1. Pre tort – scrap value + lost use (maybe)
ii. Permanently Damaged
1. Diminution in value + lost use (maybe)
iii. Temporarily Damages
1. Cost of Repair + Lost use
iv. Permanently and Temporarily Damaged
1. Cost of repair + diminution in value + lost use
c. When is P entitled to Cost of Repair/ Court’s always question this:
i. Majority: When cost of repair less than pre tort value
ii. Minority: when cost of repair is less than diminution in
iii. Reason Personal
1. P can get cost of repair where there is a personal
reason for wanting it fixed (objective)
d. Distinguish Between Temporary and Permanent
i. 2 Approaches
a. Is it too expensive to repair?
a. Can the injury be abated?
ii. Classification Affects the outcome
1. Affects Measure of recovery
2. Also Affects SoL
a. Perm: runs when P learns of damage
b. Temp: has not started to run
5. Personal Injuries (Bodily Injuries to Persons)
i. Nature of D’s conduct only affects the amount recoverable
with regard to punitive damages for the most part they are
independent from the basis of the claim.
ii. However, there is a distress component for physical harm,
which includes the mental suffering in addition to the
physical harm. Not considered special damages because no
need to allege these in the complaint, understood.
iii. Consider periodic payments
1. Less uncertainty/more litigation
2. Economically inefficient
3. Requires mechanism to deliver funding
4. Would drop contingency fee basis (how would
lawyers get paid)
5. Option of long-term annuity payment
6. D won’t pay more than P’s actual costs
7. P likes this if lives longer than life expectancy
8. Good if P is bad at money management
9. D may be insolvent, not able to make payments in
10. More difficult for courts to enforce
11. P wants closure/made whole
12. When would attorney be paid?
iv. Both minors and parents have claims
1. Child: pain suffering and lost earnings
2. Parent: Loss of earning of child during minority,
travel, lodging, telephone
b. Categories of Damages
i. Lost earnings
1. Money from existing job that P lost/will lose
because of temporary absence
ii. Lost earnings capacity
1. Money from a potential job that P lost or will lose
because of an injury
a. Job P would have had x earnings capacity
b. (Diminished capacity)
i. Job P would have had – job P does
have x work expectancy
a. Race/Gender (windfall v. mistakes)
b. Geographic Location
c. Likelihood of Latent Disease
i. Demonstrate with reasonable
ii. Usually have to bring claim for all
past/present/future before SoL runs
d. Likelihood of Degree
e. Costs Saved
i. Award should deduct taxes would
have to pay
g. Present Value
i. Award reduced to this usually
ii. How does one calculate this?
i. If present value should account for
ii. Since Frankel, know that without
inflation, people left badly
iii. Medical expenses
1. Past (to trial) and future (trial and forward, what
will need x life expectancy)
2. Rely on medical bills (Insurance doesn’t take away
3. Parents can recover for paying for child
4. Future medical expense: rely on expert testimony
5. For future expenses must show more likely than not
will need procedure, 51%
6. “Single Action Rule” – must be able to show future
harm at once, if develop later can’t collect.
iv. Special expenses
a. Show reasonable necessary
b. Public v. Private (chance of recovery)
3. Special Education
4. Money management
5. Home remodeling
v. Pain and Suffering
1. How should this be calculated:
a. Per Diem Argument:
i. Daily value for pain x life
ii. Allowed in CA
b. Job offer, Per Diem argument
i. Can Be both per diem (suggest a
number) and golden rule
ii. unfairly prejudiced the jury.
iii. There is no market for this
iv. Illusion of validity
c. Golden Rule approach: how much would
d. Lump Sum arguments, many jx permit this
i. Best estimate of future expenses at
iii. Allowed in CA
iv. Anchoring a number that is close to
what jury should chose, tactic
e. Willingness to pay arguments
i. most jx rejected
2. Should These Arguments Be Allowed?
i. let adversarial system play out
i. Illusion of certainty in calculation
ii. Golden rule shifts jury’s attention
away from evidence, to what they
c. Frankel v. United States (E.D. Pa. 1970)
1. Automobile collision with car driven by Army, P
sustained serious irreversible personal injuries. Her
guardian brought suit for medical expenses and
1. To calculate lost earning when someone does not
have a job, Job P would have x work expectancy.
Frankel after college would have made $5K per
year until age 65.
2. Also do not reduce to present value because P
would get windfall then, so institutionalization will
be reduced to present worth.
d. Wilburn v. Maritrans GP Inc. (3d Cir. 1998)
1. P injured when swept off the deck of the tug during
1. Use “shockingly excessive standard to review jury
verdicts. Loss of future earnings is subject to
mathematical calculation. P was 38, was receiving
$44K as barge captain could receive $50k,
assuming retirement age of 65 = $162,000. One
million dollars for physical and psychiatric
disorders was not excessive.
e. Debus v. Grand Union Stores Vermont (1993)
1. P was injured while shopping at D’s store when a
pallet of boxes, piled high and imbalanced, toppled
over and fell upon her. Boxes contained cans of pet
food. Had 20% permanent disability. During closing
argument P suggested that jury think about P;s
injury in terms of daily pain and suffering,
suggested an average daily figure then multiply by
days P would live. “Per Diem” argument.
1. Per Diem arguments OK if made under the ordinary
supervision and control of trial court. Told them it
was only a “suggestion”.
a. Judge can explain to jury difference between
evidence and argument
b. Jury instructions counsel the jury that
arguments of counsel are not evidence and
guide the jury to estimate the proper amount
based on the evidence
c. Defense counsel can anticipate per diem
arguments and be prepared to counter them.
1. Suggesting a time-unit calculation technique for
fixing damages for pain and suffering is O.K. but
prohibit any suggestion by counsel of specific
monetary amounts. Also should give a specific
a. Illusion of certainty
b. No evidentiary basis for formula
c. Juries are misled and deceived by effect of
d. Defense counsel put in difficult position
f. Remittur and Additur
i. Amount of a damage award is an issue of fact for the jury
however, most jx provide only deferential review allowing
a reviewing court to disturb a jury verdict only when it is
excessive or shocks the conscience or is obviously the
result of passion or prejudice.
1. Reviewing courts, if determine award is excessive,
generally does not set-aside entire verdict. Instead
sets aside portion concludes excessive. In many jx P
has option of accepting the remitted verdict or
seeking anew trial on damages
1. P may also seek review is think jury verdict is
inadequate. Usually only found inadequate if fails to
include an element of damages that was proven or if
view in light most favorable to D fails to award
substantial amount of compensation for pain and
suffering. Additurs incursion into jury so should
only be done with great caution. Courts less likely
to do this.
iii. LIMITS ON DAMAGES
1. Two Approaches Courts Can use To Limit Damages
i. No Cause of Action
i. P can state cause of action but courts will only award a
2. Types of Limits
a. Distress Damages/Emotional Harm
b. Economic Loss Damages
e. Duty to Mitigate
f. Collateral Source Rule
i. C – f , can be discussed in all claims
3. DISTRESS DAMAGES EMOTIONAL HARM
a. Contracts (remedial): Contract claim will not support distress
1. Kwan. V. Mercedes-Benz of North America, Inc.
(1994). Problems with car and getting them fixed
gave car owner lots of distress about safety of
family in his car. Court said no emotional distress
damages because Consumer Act comparable to
provisions normally available to a buyer for a
seller’s breach of contract for the sale of goods.
Here, no physical harm so no emotional distress.
Contract restatement required breach of contract
that is very personal in nature, which s car is not,
mental distress not foreseeable.
2. P cannot recover distress damages in contracts
regardless of core injury
a. Breach that causes physical harm/
independent tort cause of action
b. Emotional Interest Contract – where
emotional component is the essence of the K
i. Loved ones remains disposal
b. Torts (substantive level): If there is no core injury, only emotional,
than there is no cause of action.
1. Bogus insurance claims
2. Judicial efficiency
3. Measurement Too Speculative
4. Floodgate of litigation
5. Causal connection between stress and injuries is too
6. Inherent difficulty of proof in such cases requires
excessive reliance of P’s testimony
7. Too speculative
1. P suffers distress from viewing an injury to a loved
one, if they are in the zone of danger
a. 3 requirements
i. P is in zone of danger (exposed to
risk of bodily harm by D’s conduct)
ii. Harm to an immediate family
iii. Serious distress from witnessing the
harm to family
2. Parasitic damages, if able to state an action for
invasion of another interest, than can only be
limited remedially (foreseeability and certainty)
3. Physical manifestation of emotional distress (emo
distress serious enough to cause physical injury)
4. IIED, when D acts recklessly or maliciously to
inflict mental distress P may recover if suffers
severe distress without physical manifestations
i. Intentional Act
ii. Outrageous conduct
c. Crinkley v. Holiday Inns, Inc. (4th Cir. 1988) (physical
manifestation of emo distress)
1. Couple checked into hotel, and hotel bandits beat up
husband several times. Wife was bound and gagged
and stolen from too. Sued hotel etc. for inadequate
security of reasonably forseeable assault.
1. Found D’s were negligent in providing inadequate
security and that it caused injuries and that they
could get $500,000 in compensatory damages,
which included physical damage to wife, who
suffered heart issues after bing under the stress of
i. Thin-Skulled P
1. Take P as found him, even if ordinary person not
ii. Physical Pain can equal sever psychological conditions too
e. Goldberg v. Mallinckrodt, Inc. (2d. Cir. 1986)
1. D lied about spinal dye having no negative
consequences and then P used it on two patients
who were paralyzed from waist down etc. P sued D
for fraudulent misrepresentation.
1. P’s lost income for not doing procedures anymore is
not a direct result of D’s alleged fraud.
2. Emo distress not compensable.
3. Emotional disturbance suffered must be serious and
verifiable and must be ties as a matter of prox.
cause to the observation of the serious injury or
death of an immediate family member. Finally, P
must himself have been in the zone of danger. Here,
these things have not been meet.
4. ECONOMIC LOSS DAMAGES
i. Generally defined as damages resulting from inadequate
value because the product is inferior and does not work for
the general purposes for which it was manufactured and
ii. It includes both direct and consequential economic loss.
iii. The former is the loss in value of the product itself; the
latter is all other economic losses attributable to the product
1. Damage to product itself of monetary loss caused
by the defective product which DOES NOT cause
personal injury or damage to other property.
b. Substantive Theory
1. Traditional view precludes any recovery for
negligently inflicting economic losses absent
physical harm to person or property.
2. If core injury, P can recover pure economic loss
i. Provides predictability in otherwise
uncertain area of law and places
reasonable limits on tort feasors
ii. Such pecuniary losses are too remote
iii. Encourages settlement.
iv. Maintain fundamental distinction
between tort and contract law
v. To protect commercial parties’ (or
party best situated) freedom to
allocate economic risk by contract
3. J’Aire did we read this case?
a. P can recover for lost business in tort, even
though purely economic harm.
1. NO DIRECT LIMIT FOR ECONOMIC LOSES IN
BREACH OF CONTRACT CLAIMS.
i. Special relationship that created a duty to protect from
1. Factors to Consider:
a. K intended to benefit P
b. Harm was forseeable
c. Harm was certain
d. D’s conduct was morally blameworthy
e. Public policy favors duty
f. Close connection between Ds conduct and
ii. Intentional interference would permit recovery of pecuniary
d. Clark v. International Harvester Co. (Idaho 1978)
1. Defective tractor manufactured by D. P alleged a
breach of implied/express warranties and negligent
design and manufacture. Damages based on
downtime when equipment was being repaired and
asserted that the tractor failed to function as
1. The purchaser of a defective product who has not
sustained any property damage or personal injury,
but only suffered economic losses cannot recover
those losses in a negligence action against the
2. Manufacturer cannot be held for the level of
performance of his products in the consumer’s
business unless he agrees that the product was
designed to meet the consumer’s demands.
3. Limited to physical injury.
4. Econ loss only = no cause of action
5. Injury to subject matter of K (tractor), is not enough
for core injury.
1. Law of negligence does not impose a duty to build a
tractor that plows fast enough and break down
infrequently enough for P to make a profit. This is
not to say that such a duty could not arise by a
warranty – express or implied – by agreement of the
parties or by representations of the defendant but
the law of negligence imposes no such duty.
e. Defective Products Can Cause
i. Physical Injury TO Person = recoverable
ii. Physical Injury to Property = recoverable
iii. Economic Injury from Loss of Bargain = Absent fraud,
remedies governed by warranty law, no
iv. Other Economic Injury = No recovery
a. Contract (Remedial Level):
1. Kind of harm must be forseeable, and the degree of
harm must be forseeable (at remedial level)
2. The loss must be reasonably forseeable from the
perspective of the breaching party at the time the
contract was formed.
3. Forseeability at time K was made - “Hadley “ Rule
applied strict and general: Apply to torts below?
a. Strict = D “tacitly agreed, by implication or
expressly at the time of the contract to
accept the risk of the particular loss”
b. General = rejected tacit agreement test for
the recovery of consequential damages. Loss
must have been forseeable at the time of
contracting even if it was not actually
c. General = those which flow directly and
immediately as a natural consequence of the
kind of wrongful act by the breaching party.
Presumes they were forseen by the D.
d. Special = Although actually caused by D’s
acts would not necessarily always follow
from such conduct. Liability attaches only
by reference to the special character,
condition, or circumstances of the non-
breaching party and the loss must be forseen
by the breaching party rather than implied
1. Party should be held accountable only for those
risks that were forseeable at the time of making
2. Forseeability of potential risks should have
modified a persons behavior.
b. Torts (Sub Level):
1. Kind of harm must be forseeable, not necessarily
the degree of harm though
2. Once a duty is established, the actor is responsible
for all the ensuing harm proximately caused by
conduct in breach of that duty.
a. Polemis – all direct consequences are
compensable regardless of the
unforseeability of the consequences
b. Wagon Mound – does not seem consonant
with justice that actor should be liable for
everything direct because some things are
c. Palsgraph – once duty established, duty
arises from the foreseeability of harm to that
person. In absence of forseeabiliy, there is
no duty and thus no liability. “unforeseen
P’s” get no recovery.
3. Thin-Skulled P
a. Forseeability does not limit damages in
cases where the extent of a personal injury is
greater than anticipated.
4. Usually greater recovery in torts than in contract.
ii. Overall policy
1. Excluding recovery of damages that are too remote.
c. Redgrave v. Boston Symphony Orchestra (Pg. 630) (K breach
about foreseeability but mostly certainty)
1. Actress hired to narrate symphony but D canceled
their contract with her because she was politically
involved. P wanted compensation for the damages
of the cancellation which she alleged led to 3rd
parties not offering her parts.
1. Court held that it was forseeable that D’s canceling
of the K would lead to P losing other work
opportunities as well.
2. But, court said P could not prove with certainty that
D’s conduct caused the harm.
i. A limiting factor in contract and tort liability is the
requirement that the injured party must prove damages with
1. Applies in showing that D acted in illegal
manner/(causation) should we know this causation
2. AND the extent to which to which the D should be
held accountable for the consequences of their
misconduct (amount of damages).
ii. A p may satisfy this burden upon producing a reasonable
evidentiary basis that would allow damages to be calculated
without speculation or conjecture. Mathematical exactitude
is not required.
1. Must be flexible and pragmatic in order to
accommodate differences in torts and contracts and
broad categories that range of harms. Can
sometimes use opinion evidence. Usually all that is
requires is proof of actual or estimated costs.
iii. If P fails to meet this, may still receive nominal damages.
i. Compensatory damages should be awarded to make an
injured party whole but not to punish.
ii. Balance difficulty in quantifying harm against the policy of
compensating for the injury.
c. Tort (Causation - substantive damages - Remedial)
i. Rest. Second of Torts 912, - as the nature of the tort and
ii. Emotional damages etc. more inherent, so lower certainty
required here than for contracts.
iii. Higher hurdle for causation certainty than damage certainty
because its an element of claim. Once D liable lower
standard for damage certainty.
iv. Wrongdoer bears the burden of uncertainty that exists in
our system of settling differences. Esp when D’s actions
prevented the P from making a just and reasonable estimate
of the losses suffered.
v. Where courts determine that no rational basis exists to
measure damages, the task of calculating any potential
recovery is considered insurmountable.
vi. Youst v. Longo (Tort/causation)(Majority) (Cal. 3d 1987)
a. P claims D, a harness driver of another
horse, negligently and intentionally
interfered with the owner of P’s horse
during a race, thereby preventing the owner
from the chance of winning a particular cash
a. P must show a probable loss
i. Preponderance of the evidence
standard (more likely than not) (<
b. The chance of winning a contest is too
uncertain upon which to base tort liability.
No sufficient degree of certainty that the
plaintiff ever would have received the
anticipated benefits. Certain contests have a
higher probability of ultimate success than
others. This one does not. On the facts, it is
not reasonably probable that horse would
have finished higher than did. Winner of
horse race not always the leader, horses can
break the pack, even as a matter of strategy
and many race are won by a nose.
i. Would other wise open the floodgate
of litigation on alleged missed
opportunities to win various types of
contests despite the speculative
outcome of them. In fact, it is the
vii. Lost Chance Approach (Causation or damages Minority):
1. P gets the value of change in odds (change in
percentage (%)) x (change in outcome ($))
2. For adverse odds gets: (change in percentage) x
(make whole amount of a full life)
What about damages? Youst Lost Chance
51 % Yes c/a $51k
49 % No c/a $49k
Likelihood of Adverse Event
Odds more than double of adverse event happening
Can recover full
d. Contract (Causation and damages = Remedial)
i. Higher level of certainty required here, than torts because
tort elements like pain and suffering and emotional distress
are inherently difficult to quantify into dollar amounts.
ii. Can be determined in any manner reasonable under the
iii. Two ways to prove lost profits
1. Before and After theory and
2. Yardstick test, compares similar businesses
iv. Cannon v. Yankee Products Co. Inc. (Mass. App. 1977)
a. Worm discovered by customer of restaurant
in a plate of peas prepared by restaurant but
grown by D. Customer made a stink in the
presence of 50 or so customers. Supposedly
the word spread and P noticed a reduction in
the number of customers at his restaurant.
Noticed other customers eating elsewhere.
Made efforts to increase volume of business
but were futile. P brought suit against D for
breach of warranty and wanted damages for
a. Cannot recover damages where they are
remote, uncertain, contingent or speculative
as not to be susceptible of trustworthy proof.
A claimant cannot prevail when any
essential element is left to conjecture,
surmise, or hypothesis.
b. Here, no evidence of diminution of receipts
or sales but no evidence of how much of this
constituted loss of profits. No opinion or
basis of one.
c. But, will get nominal damages.
d. nature of them that makes such competitions
e. To allow recovery without proof of probable
loss would essentially eliminate the tort’s
element of causation.
v. Where the value of a chance for profit is not outweighed by
a countervailing risk of loss and where it is fairly
measurable by calculable odds and by evidence bearing
specifically on the probabilities that the court should be
allowed to value that lost opportunity.
7. DUTY TO MITIGATE (Remedial Level)
1. Allows damages reasonably incurred to mitigate
2. Burden of proof on P
3. Component of damages
1. Precludes an injured party from recovering damages
that could have been averted by taking reasonable
steps following accrual of the harm.
2. No restriction on a party’s substantive entitlement
to damages but a limitation on the measure of
damages recoverable for a tort or contract breach.
3. Excludes damages that result from a failure to
4. Burden of proof on D
5. Affirmative defense
i. An injured party is not expected to undertake extraordinary
measures to suffer undue hardship.
ii. Fairness, social responsibility.
i. Can have both affirmative and negative in this context:
a. P’s reasonable efforts to obtain substitute
employment increase damages
a. P’s failure to accept a substitute employment
reduces recovery, unless sub is inferior or
ii. General rule is that party injured must make every
reasonable effort to minimize damages and may not recover
for damages which could have been avoided by reasonable
efforts under existing circumstances.
iii. Parker v. Twentieth Century-Fox Film Corporation (Cal.
a. P was under written contract for her services
as an actress in a motion picture. D decided
not to make film P was hired for and offered
to employ her in some other film. D claims
P refused to mitigate D’s damages by taking
the other film offered to the P.
a. General rule is that the measure of recovery
by a wrongfully discharged employee is the
amount of salary agreed upon for the period
of service less the amount which the
employer affirmatively proves the employee
has earned or with reasonable effort might
have earned from other employment.
Employer must show however, that the other
employment was comparable or
substantially similar to that of which the
employee has been deprived.
b. Employees rejection of or failure to seek
other available employment of a different or
inferior kind may not be resorted to in order
to mitigate damages.
c. Here, other offer was both different and
i. Ca v. Australia
ii. Song/dance v. Country western
iii. New K took P’s approval rights over
director and screenplay
a. If you do actually mitigate, you do not get to
i. Lobermeier v. General Telephone Company of Wisconsin
a. P sustained a ruptured eardrum with
resulting hearing loss while talking on the
phone in his parents’ home. Phone installed
and maintained by D. P’s injuries caused by
a lightning-induced electric charge. P had
ear drops and was recommended to have
surgery. Dr. performed surgery on patient.
But Dr. then suggested another surgery
which patient declined because future
surgery was risky. D said P did not properly
mitigate his damages.
a. Matter of fact to be determined by jury
whether a reasonable person under the
circumstances would submit to a second
surgical procedure. Jury decides reasonable
course of conduct to mitigate the injuries.
a. Approaches to refuse surgery
i. Doctor Decides
ii. Reas Person
iii. P decides
ii. Proof Needed
1. D must prove that a person of ordinary intelligence
and prudence under the same or similar
circumstances would have elected to undergo the
recommended medical procedure. If the defendant
meets the burden of proof, the consequences of the
injured party’s failure to mitigate damages is that
the fact finder will not allow damages for those
consequences of the injury which the plaintiff could
have avoided by the exercise of ordinary care.
8. COLLATERAL SOURCE RULE
i. D’s sometimes make payment of undisputed some before
trial. Such pre-trial payment to a P are then credited against
the wrongdoers ultimate liability.
ii. The collateral source rule states a negative corollary to the
above mentioned situation:
1. Compensation or other benefits which an injured
party receives from a source unaffiliated or
independent of the responsible party NOT deducted
from the D’s liability.
2. It also serves as an evidentiary preclusion device:
the D may not introduce evidence that the P has
insurance coverage or has received gifts or benefits
from other source.
iii. Difficulty comes in trying to determine if a source is
a. Private things
b. Private medical insurance
a. Public sector social (security) benefits
c. Unemployment benefits
i. Injured person can end up receiving double compensation
for a single harm.
ii. Exception to the traditional goal of compensatory damages
to place plaintiffs as nearly as practicable in the position
they held prior to the harm.
iii. Would have less incentive to purchase insurance if
insurance benefits were viewed as an offset to tort liability.
iv. Without the rule, P’s would be net losers because they paid
the insurance premiums.
v. If insurance provided for subrogation rights, the injured
party may not in fact receive a double recovery.
vi. This rule also serves as a rough offset for the attorney’s
vii. Between the tortfeasor and the P, any windfall should be
enjoyed by the innocent party.
viii. Tortfeasor should not garner the benefits of the victim’s
ix. Policy encourages citizens to purchase and maintain
insurance for personal injuries.
x. Double recovery is justified only in the face of some
exceptional, supervening reason, as in that case of accident
or life insurance. Where it is felt unjust that the tortfeasor
should take advantage of the thrift and prescience of the
victim having paid the premiums.
xi. Most insurance provide for either subrogation or refund of
benefits upon a tort recovery.
xii. Also, generally the jury is not informed that the P’s
attorney will receive a large portion of the P’s recovery in
contingent fees or that personal injury damages are not
taxable to the P and are normally deductible by the D.
Hence P rarely receives full compensation.
xiii. More policy (page 678).
c. Helfend v. Southern California Rapid Transit Dist. (Cal. 1970)
1. Bus-auto collision.
1. Judgment for P in this tory action against the D
government entity should be affirmed. The t.c.
properly followed the collateral source rule in
excluding evidence that a portion of P’s medical
bills had been paid through medical insurance plan
that requires the refund of benefits from tort
2. D’s should not be permitted to show that P had
received medical coverage from any collateral
b. NOMINAL DAMAGES
c. PUNITIVE DAMAGES
1. Not available to redress all legal wrongs.
2. Awarded to punish D’s for egregious conduct and deter defendants and
others from future offenses. These damages are intended to make public
examples of inappropriate behavior. They are also supposed to hurt D’s
1. Not an independent cause of action but a derivative claim, so entitlement
to an exemplary award is dependent upon the success of the underlying
a. Jx divided over what type of showing is necessary to satisfy the
damage element of an underlying claim and therefore render a D
liable for punitive damages.
i. (Minority) An award of nominal damages cannot support
an award of punitive damages.
ii. (Majority) An Award of punitive damages is O.K. if
underlying claim only got nominal damages.
1. All that matters is D has violated a right.
iii. All jx’s:
1. Need at least an ward of nominal or compensatory
2. Generally available when a D acts with an evil motive such as spite, ill
will, intent to injure or fraud or when a D acts with gross recklessness or a
willful disregard for the rights of others.
a. Principal case describes this as:
i. Conduct giving rise to punitive damages is malicious,
wanton, willful, or sufficiently egregious conduct.
3. Ca Civil Code
a. Proven by clear and convincing evidence that the defendant has
been guilty of oppression, fraud, malice, the P may recover
punitive damage award.
i. Malice = conduct intended by the D to cause injury to the P
OR despicable conduct which is carried on by the D with a
willful and conscious disregard of the rights and safety of
ii. Oppression = despicable conduct that subject a person to
cruel or unjust hardship in conscious disregard of that
iii. Fraud = intentional misrepresentation deceit or
concealment of a material fact known to the D with the
intention on the part of the D of thereby depriving a person
of property or legal rights or otherwise causing injury.
b. There must be malicious intent OR reckless indifference
1. desire to do harm
ii. Reckless indifference
1. Known danger
2. Conscience disregard
4. Never awarded automatically or as a right
a. Trier of fact has discretion whether to award them at all and if so,
in fixing the amount.
5. USSC said they do not constitute excessive fines but have recognized that
at some point a punitive damage award may be so excessive that it violates
a D’s right to due process.
a. Due process also requires minimum procedural safeguards to
ensure that punitive damages awards are not arbitrary deprivations
i. Have been challenged under:
1. 8th amendment
a. cruel and unusual
b. rejected by USSC
2. procedural due process (Honda Motor Case)
a. need meaningful judicial review
b. must have some factors to restrict the
discretion of the jury
3. substantive due process
a. limit to punitive damages because it is the
deprivation of property without due process
b. award cannot be grossly excessive
i. reprehensibility of D’s conduct, can
punish D for acts to P but not anyone
ii. ration between actual potential harm
and award, no more than 9:1 ratio
(can’t be ten times more)
iii. other sanction generally; sanctions
for similar conduct as benchmark
6. Other Jurisdictions
a. Some allow for punitive damages based on a showing of gross
iii. Factors in Determining the Amount
1. Nature and reprehensibility of the D’s wrongdoing
2. Seriousness of the harm resulting from the misconduct
3. D’s awareness that resulting harm would happen
4. Relationship between actual harm and amount of punitive damages
5. Total deterrent effect of other damages and punishment in posed upon the
6. Duration of the misconduct
7. Any attempt to conceal the misconduct
8. D’s intent
9. Actual and Potential harm
11. Relationship between the D and P
12. D’s financial condition
a. Most common measure
i. Net worth of D’s assets less the value of its liabilities
ii. Usually evidence of wrongful profits standing alone is
insufficient to assess a D’s wealth (not ceiling of punitive
b. principal of diminishing marginal utility – requires us to see if
award is excessive or proportional
c. Such proof is not necessary to sustain an award for punitive
d. Bifurcation needed here, because jury may be biased if know how
much money D has
e. BMW v. Gore (USSC 1996)
1. Decision by national distributor of automobiles not
to advice its dealers, and hence their customers, or
predelivery damage to new cars when the cost of
repair amounted to less than 3% of the car’s
suggested retail price (fraud). T.C. awarded $2
million dollars in punitive damages to purchaser of
one of these cars.
1. Fact that BMW is a large corporation does not
diminish its entitlement to fair notice of the
demands that the several States impose on the
conduct of its business.
1. Car accidents, Campbell’s insurance refused to pay
out and refused to settle case for $50,000. Instead
went to trial and got Campbell’s personally liable
for $185,849. Campbell’s sued State Farm for bad
faith, fraud, and IIED. State Farm had national
scheme to cap payout on claims company wide
which was stupid in this instance. Plus told
Campbell’s to sell their shit to move things along
1. Applies guideposts from Gore. The wealth of the D
cannot justify an otherwise unconstitutional
punitive damages award.
a. award cannot be grossly excessive
i. reprehensibility of D’s conduct, can
punish D for acts to P but not anyone
ii. ration between actual potential harm
and award, no more than 9:1 ratio
(can’t be ten times more)
iii. other sanction generally; sanctions
for similar conduct as benchmark
13. Whether D profited financially from its misconduct
14. Mitigation (other punishments/sanctions D has already faced)
1. An appellate reviewing court will not set aside an award of punitive
damages unless it is so excessive that it appears to be the result of passion
or prejudice. Look to abuse of discretion.
2. Trial court review, shocks the conscience/passion and prejudice
v. Mass Disaster/Products Liability Issues
1. Courts try to accommodate the goals of punishment and deterrence
without imposing ruinous liability.
2. At some point, the numerous awards based on the same conduct exceed
the goals of deterrence and punishment and threaten the viability of the
3. Creates a race to courthouse among P’s
1. Punishes D’s for anti-social conduct without the benefit of the
constitutional safeguards that apply in the imposition of criminal
2. Does not keep with the traditional compensatory goal of damages law.
3. P’s receive a windfall in excess of what is necessary to compensate them
for their losses.
1. Necessary to assess the true societal costs of D’s misfeasances
2. Provides a fund from which P’s can recover attorneys fees and other
litigation costs that are otherwise noncompensable.
1. Many states have sought to restrict punitive damage awards through
various legislative and judicial measures.
a. Some states require P’s to make a prima facie showing of liability
for punitive damages before they may plead damages for such
b. Other states require a showing before allowing discovery of D’s
c. Many states require proof by clear and convincing evidence to
prove liability for punitive damages
d. Many states require punitive damages to be assessed in bifurcated
i. Liability v. amount of PD
ii. Award of PD v. amount of PD
e. Some states have placed ceilings on the dollar amounts allowable
as punitive damage awards
f. Some states require a portion of punitive damages awards to be
paid to the state rather than to the P.
g. Now clear and convincing evidence standard
h. More specific jury instructions
1. Usually punitive damages not allowed here regardless of how willful,
intentional, or malicious the breach.
i. But allowed if breach is also independently a tort (does not
include good faith and fair dealing)
ii. Special relationship:
a. Insurer’s bad faith to settle (Campbell)
because has almost fiduciary relationship,
unequal bargaining power, purveyor of a
vital service, public trusts them, insurer in
superior bargaining position, attempts to
restore the balance in the contractual
x. Wauchop v. Domino’s Pizza, Inc. (N.D. Ind. 1993)
a. P died as a result of an automobile accident where her minivan was
struck by a car driven by Domino’s franchise employee. The
franchise agreement said the store will not offer delivery service to
any customer whose order cannot be delivered within 30 minutes
of the time such order is places. P alleged that delivery rule
warranted punitive damages.
a. Reckless indifference
i. Known danger
1. Evidence that employees knew of known danger
2. Media criticism of danger
3. Franchise has hard time getting insurance because
ii. Conscience Disregard
1. Never talked about safety of policy
2. Did not investigate the realities of guarantee
3. No mandatory safe driving instructions
xi. Corporate Context
1. To prove state of mind
a. Look to high up officials
i. People with managerial capacity acting within scope of
duties of corp. OR
ii. Participation or consent or after the fact gratification from
iii. Retention of an unfit employee
xii. Class Actions
1. Court sets punitive damages for entire class with no opt. out chance.
xiii. Silverman v. King (N.J. 1991)
a. P house dealer at Casino. Dealt D wining hand, D gave dealer a big
hug and lifted him off the ground while doing so. P was
particularly susceptible to this type of contact because had
previous back problems.
a. D did not know of P’s condition so no known danger and therefore
no punitive damages.
III. RESTITUTIONARY REMEDIES
a. LEGAL RESTITUTION
a. K deals with bargained for losses and gains
b. Tort deals with unbargained for loss
c. Restitution deals with unbargained for gains
d. FOCUS ON D’S GAINS NOT P’S LOSSES
a. Can be used in place of contract or tort because you have no claim
there or one fails
b. Can be used in addition to a contract or tort claim because the
measure of recovery is not enough
c. Can be sole remedy or in addition to other claims
d. Restitution = an independent substantive basis of recovery that is
allowed as necessary to avoid unjust enrichment.
e. LIMITED TO THE MEASURE OF THE D’S GAINS.
a. Developed separately both at law and in equity.
a. Common law courts developed restitutionary device called quasi-
contract based on assumpsit.
b. The courts here, infer a contract where one perhaps does not exist
because equity supposes there ought to have been one.
iii. Types of Quasi-Contract Actions
a. Action P’s used to recover for breaches of express contracts.
b. Fiction designed to oblige payment to the P of the amount of unjust
c. Actions for money had and received or for money paid.
2. Quantum Meruit (“as much as he deserves”)
a. Value of services rendered without a K
b. Allows recovery of the reasonable value of beneficial services
rendered or materials furnished under circumstances not covered
by express contract where retention of the benefit would constitute
c. Without this, the D would be unjustly enriched at the P’s expense.
d. Used for reasonable value of services rendered to a D.
3. Unjust Enrichment
a. Court must find (no regard to the intention of the parties):
i. An enrichment in the sense that the D has received
something of value (at P’s expense) AND
1. Benefit = any form of advantage
ii. The enrichment should be disgorged from the D to rectify
an unjust result (to P).
1. It is not necessary to prove tortious, illegal, or
fraudulent conduct by the D to establish that the
enrichment is unjust.
2. Innocent people can be ordered to restore property
to another in order to prevent unjust enrichment.
b. Doesn’t Apply
i. In setting of a marital relationship. Where both spouses
perform the usual and incidental activities of the marital
relationship and upon dissolution there can be no
1. Where agreement between spouses and
extraordinary or unilateral effort by one spouse
which insures solely to the benefit of the other by
the time of dissolution, restitution is appropriate.
i. Award to appellee should be limited to the financial
contribution by appellee for appellant’s living expenses and
direct educational expenses. Appellee should not recover
more than the benefit of her bargain.
iv. Limits (Applies in failed contract scenarios)
1. Limits recovery to what D actually got
2. Limits recovery to what P bargained for
v. Pyeatte v. Pyeatte (Ariz. 1982)
a. Wife and husband entered into an agreement whereby husband
would go to law school and wife would support him through that
and then she would go and get her education and he would support
her. They divorced before wife got any support. Wife brought
contract suit but the terms of the spousal agreement were not
sufficiently definite to constitute a binding enforceable contract.
a. But, affirmed T.C.’s award as an equitable award of restitution.
Where a person has rendered services to another or services which
have inured to the benefit of another, is entitled to restitution
therefor if the services were rendered.
i. Awarded wife $23,000 in damages for husbands “breach”.
Cost of wifes education. Wife did not get cost of husbands
education because her education was less expensive.
b. Must show:
i. Received a benefit
ii. By receipt of that benefit was unjustly enriched at P;s
c. Here, court inferred a quasi-contract (constructive contract, no
valid K needed) by law as a matter of reason and justice from the
acts and conduct of the parties and circumstances surrounding the
transactions and are imposed for the purposes of bringing about
justice without reference to the intentions of the parties. Quasi-
contract inferred by circumstantial evidence rather than by express
written or oral terms. Not a contract but more of a duty imposed in
vi. Monarch Accounting Supplies, Inc. v. Prezioso (Conn. 1976)
a. P leased an office building from the D. D subsequently executed
another lease with an outdoor advertising company for purposes of
installing a large sign on the roof of the building. P sued D for
unauthorized use of the premises. Contract did not refer to the roof.
But D did not reserve control of the roof so had no right to lease
the roof premises.
a. P entitled to damages for unjust enrichment of the D. D received a
benefit to which he was not entitles to the detriment of the P (P had
right to sublet or use roof as he wanted).
b. Damages should be the benefit received. The benefit was the rent
that was received by the D less his expenses.
c. A prospective award is not properly includable within the concept
of damages, only focus on benefit unjustly RECEIVED and
RETAINED by D.
a. Since they both needed each others permission, should they split
the sign rent in half?
b. EQUITABLE RESTITUTION
1. Same elements required as under law:
a. D enriched at P’s expense
b. Retention of benefit unjust
2. Plus additional required elements:
a. Fiduciary/confidential relationship
b. OR fraud mistake duress undue influence
c. AND remedy at law inadequate
i. Since the remedy of constructive trust is equitable in
nature, the court must inquire into the adequacy of
available legal remedies to provide redress for the
ii. Two Types
1. Constructive Trust
i. Method for disgorging unjust enrichment.
ii. Imposes an equitable duty on a defendant to convey
property acquired under certain circumstances to the
1. Circumstances include
a. Title to property by fraud
b. Various other wrongdoings
iii. Based on fiction that the D became an involuntary trustee
of the unjust enrichment for the benefit of the plaintiff. D
would be unjustly enriched if allowed to keep anything.
iv. Has nothing to do with an express trust, which is created by
the intention of the parties. The constructive trustee is
designated by the court in order to recover the enrichment
held by the wrongdoer.
1. Implied by the facts surrounding a transfer or
property. A constructive trust is created without
reference to the intention of the parties.
a. Trustee holds title to property subject to
equitable duty to hold it for or convey it to
the holder of the beneficial interest.
v. Also used on insurance contexts, where there is a breach of
fiduciary relationships, has parted with misappropriated
property, or unique property wrongfully withheld.
i. Where the D has exchanged the property by
buying/selling/transferring it and P can trace new property
back to the original property – P can recover the new form
of the goods!
ii. Disgorges from the D anything traceable from unjust
iii. Can seem punitive in nature (like when property purchased
with embezzled money increases in value and have to give
that back). However, wrongdoer must return all profit.
i. P can get the increase in value of property
ii. Rightful owner may compel conveyance of the property in
specie. Therefore by obtaining specific enforcement of the
1. P gets priority against all other creditors
iii. P can exercise rights against 3rd parties except bona fide
purchasers for value
iv. Can obtain specific restitution of property.
i. No deficiency judgment is value of property decreases
ii. Will be denied if adequate remedy at law exists
iii. Sometimes issues with no jury trial where equity takes
e. County of Cook v. Barrett (Ill. App 1975)
1. P filed a complaint against D seeking a constructive
trust and an accounting for bribes allegedly received
by him while he held office. D served an elected
position of trust and duties of faith. Salary fixed by
law. D began receiving kickbacks from voting
machine companies to use their products. Payments
were approximately $180,000 in total.
2. Previous complaint failed because County had no
damage and suffered none, so no unjust enrichment
at expense of county.
1. Constructive trust arises not by agreement but by
operation of law and is imposed upon grounds of
public policy to prevent a person from holding for
his own benefit that which he has gained by reason
of a special trust or confidence reposed in him by an
innocent party. Purpose is to prevent unjust
2. To make a case a P must allege facts which disclose
either actual or constructive fraud or an abuse of a
3. Here, D was fiduciary of the people of Cook County
as an elected public official he held a position of the
highest public trust. Exact fiduciary perimeters of
his obligation are not necessary to locate. He was
bound to act solely for the benefit of his principal.
So, when he got benefit, that benefit should be
4. Absence of damage immaterial.
2. Equitable Liens
i. An equitable lien operate as a charge or encumbrance on
property. It is also available where the plaintiff can trace
misappropriates property to its product.
ii. Treats the title to the property as belonging to the claimant.
iii. Preferred when:
1. The property has declined in value and
2. When there is not a severable interest in the D’s
property against which the P is making an equitable
iv. Grant security interest in property, rather than specific
b. Elements For EL on Specific Property (R. Section 161)
i. A debt, obligation between parties arising out of an express
or implied agreement of the parties
ii. Specific property or res to which the debt or obligation
iii. A clear intent, express, or implied, that the property serve
as security for the payment or obligation; and
iv. No adequate remedy at law
i. To disgorge benefits unjustly acquired by the D.
i. P can get the money interest secured by the new form of the
good if he can trace it back.
i. P gets priority over creditors
ii. P, as a general creditor, gets a deficiency judgment for the
balance of the claim if the property decreases in value of
some of the funds have been dissipated
iii. If D insolvent, EL takes priority over other creditors
iv. Gives a security interest to the extent of the benefits
unjustly held by the D.
v. Remedies imposed against the particular property rather
than the D’s general assets
vi. El holder obtains a priority position over general creditors
of the D
i. P does not get the increase in value of the good itself
ii. P cannot assert rights against 3rd parties
iii. Less expedient because requires foreclosure of the property
in order to realize payment of the lien
iv. Can’t collect from a bona fide purchaser of value
g. Middlebrooks v. Loans (Ga. 1980)
1. P filed a complaint against D, her parents, alleging
that in reliance on their promise to repay, she loaned
them $25,000 which they had since used to build a
home on land which they owned, that they now
refused to repay said loan and that this constitutes
2. D said P’s claim failed to state a cause of action
because they never had an intent to repay the loan.
1. A promise made without a present intent to perform
is a misrepresentation of a material fact and is
sufficient to support a cause of action for fraud. If
this can be proven, P entitled to equitable lien on
the home and land.
2. P has an inadequate remedy at law because D’s had
mortgaged the home and lot so could only take
subject to the rights of the mortgagee. In contrast if
P is given an equitable lien, P establishes
entitlement to right of a mortgage only if the
mortgagee is a bona fide purchaser.
3. Judgment of T.C. reversed.
c. LIMITS ON EQUITABLE RESTITUTIONARY REMEDIES
a. Equity limits a person’s ability to obtain a constructive trust, or EL
by requiring the claimant to trace or follow the misappropriates
property into its substituted form.
b. Restitution of traced property may be asserted not only against the
wrongdoer but also against the 3rd party holding the exchanged
property provided they are not a bona fide purchaser.
c. If cant trace only remedy is a personal claim against the wrongdoer
and claimant may be forced to stand in line with creditors.
2. Advantages of Tracing
a. A claimant may obtain specific restitution of property which has
been subsequently increased in value through imposition of a
b. Holder of equitable interest may receive a priority over the general
creditors of insolvent or unavailable wrongdoers.
3. G & M Motor Company v. Thompson (Okl. 1977)
i. D was an accountant of P until his death. During this time P
embezzled $78k from the company, a portion of which was
used to pay premium of various insurance policies insuring
the life of descendent.
i. T.C. allowed to impress a constructive trust upon proceeds
of life insurance policies where a portion of the premiums
were paid with wrongfully obtained funds.
ii. Prevent unjust enrichment.
iii. Where wrongdoer mingles wrongfully and rightfully
acquired funds, owner of wrongfully acquired funds is
entitled to share proportionately in acquired property to the
extent of his voluntary contribution.
iv. Here, above principal applies because a portion of the
premiums were paid with wrongfully acquired money.
v. Company is entitles to a pro rata share of insurance
proceeds but not to exceed the total amount of embezzled
monies, interest and costs.
4. Co-mingled Funds
a. Even in comingled accounts, courts will impose an EL on the
account to allow restitution of the amount which rightfully belongs
to the P.
i. Withdrawls: How to I.D. Whose Money (Without regard to
Actual Intent of Wrongdoer)
1. First-In, First-Out Rule
a. The first money put into the account would
be presumed the first money withdrawn.
b. P benefitted or hurt under this depending
entirely upon the fortuity of how the money
was used. If the first out was claimants and
had dissipated, the equitable remedy was
2. Jessel’s Bag Rule
a. The first withdrawals from the comingled
fund are presumed to belong to the
wrongdoer and the remaining balance is
subject to the equitable interest asserted by
b. Benefits the claimant, P can easily reach
money left in the account.
c. Bad for claimant when the first funds
withdrawn are profitably invested.
a. Modified Jessel’s bag to give the claimant a
choice between the assets traceable to the
funds drawn out first to those withdrawn
from the account at a alter time.
4. Restatement Approach (majority in America)
a. Systematic application of the modified
choice principal. Gives claimant a
proportionate share in the fund and its
traceable products, enforceable through an
EL or CT.
ii. Replacement Funds
1. Majority view is that if the wrongdoer manifests an
intention to restore the claimant’s funds, the EL will
be extended to cover new deposits.
2. Absent such proof, the general rule holds that the
claimant’s equitable interest in the fund cannot
exceed the lowest intermediate balance of the
d. Quick Comparison
Rights Right to prop itself Right to money secured by prop
Increase in Value P gets it P doesn’t get it
Deficiency Judgment Nope if value decreases Yes if value decreases
Tracing Yes, right to new property Yes, right to money secured by
the new property
Rights Against Third Parties Against 3rd parties, except bona Against D only but superior to
fides’ all creditors
i. EQUITABLE DEFENSES
3. Unclean hands
IV. COERCIVE REMEDIES
a. PREVENTATIVE INJUNTIONS
i. Professors Notes:
1. Usually preventative injunctions are to prevent future harms.
2. Multiplicity could be basis for injunction.
3. Some jurisdictions require irreparable harm in addition to an inadequate
legal remedy. (Very similar)
4. Courts consider when deciding to give injunction:
i. Negative injunctions preferred because more practical
b. Balance hardships
c. Public interest
d. Tribunal integrity
i. Judges concerned, if giving injunction there will be
problems, it will be used improperly.
1. Problems with enforcement (impossible or unlikely)
a. For example, out of state conduct can’t be
enforceable, no jurisdiction.
2. Improper use of extraordinary tool.
3. First full paragraph page 72
ii. Boomer/Walgreens (illustrate this)
ii. Boomer v. Atlantic Cement Company (N.Y. 1970)
a. D operates a large cement plant near Albany. Neighboring
landowners allege injury to their property from dirt, smoke, and the
vibration emanating from the plant (nuisance). Can get damages
for past harm. During trial a nuisance was found, and temporary
damages have been allowed. What should court do about future
harm to people?
2. Different Options Both Parties Fought For
a. P Prefers
i. Issue injunction to shut plant down
ii. Invokes public interest
1. Taking without just compensation. Inverse
condemnation. Private property can take property as
long as they are willing to pay for it. Only the
government can do this.
2. Public health/Clean-air
a. Courts don’t think its their place to handle
public health issues. Legislative role will
impugn the courts integrity.
b. D Prefers
i. No injunction, only damages (every few years)
ii. Invokes public interest
1. Provides jobs
2. Lots invested in Plant
a. Court granted injunction conditioned on the payment of permanent
damages to plaintiffs which would compensate them for the total
economic loss to their property present and future caused by the
defendant (redressing all of plaintiffs complaints based on their
economic loss). This may spur research for improved techniques to
minimize nuisance. The conduct that adversely affects the plaintiff
simultaneously confers a social benefit.
i. Injunction or permanent damages
a. Does not agree with majority that assessment of permanent
damages should be ordered in lieu of an injunction, where
substantial property rights have been impaired by the creation of a
nuisance. It has long been the rule in this State, that a nuisance
which results in substantial continuing damage to neighbors must
be enjoined, so allowing cement company to continue to pollute
upon payment of permanent damages compounds a serious
i. Full injunction with an 18 month delay, develop new
iii. Walgreen Co. v. Sara Creek Property Co. (7th Cir. 1992)
a. Walgreen operated a pharmacy in mall since it opened. Its current
lease promises that landlord, Sara Creek, promises not to lease
space in the mall to anyone who wants to operate a pharmacy to a
store containing a pharmacy. Landlord feared anchor store would
go out of business and informed Walgreen that she intended to
buy-out anchor tenant and install in its place Phar-Mor a deep
discount chain. Phar-Mor would include a pharmacy same size as
Walgreen and a hundred feet from it. Walgreen brought breach of
K suit and T.C. entered permanent injunction. Sara said remedy at
law adequate (could calculate loses), sometimes courts should
allow efficient breach.
a. The choice between remedies requires a balancing of the costs and
benefits of the alternatives. Person seeking injunction has burden
of persuasion, damages are the norm, so P has to show why his
case is special. Injunction here was O.K. because lower court
noticed uncertainty in determining lost profits to Walgreen over
the next ten years and cost for fact finding high. Essentially
damages are costly and inaccurate. Cost of judicial supervision
here, small, and would set of a continuous rounds of negotiations
based on lost profits. Cost of damages would exceed cost of
i. Injunctions have benefits because cost less than fact finding
for damages. Hard to determine what price is adequate
compensation here because market is best judge of
ii. Injunctions have disadvantages, cost courts for continuing
supervision by the court. It also creates bilateral monopoly.
Buying injunction can lead to inefficient result when
bargaining range is that close. Can set of round of
b. Professor Notes
i. Hard to tell if this is efficient breach, but if parties went at
it they could figure that out. However, this fact finding
could take a long time.
ii. Effect of injunction different in Walgreens, but applied
iv. Golf-Ball Problem (Page 53)
1. P wants:
a. Injunction from court to relocate the ninth green
b. Legal remedies inadequate
i. Small damages, no tangible harm
ii. No real drop in value
c. Multiplicity of suits (keeps happening)
d. Land, give land special status
e. Can afford to move easier than family
2. D wants:
a. Slight interference
b. Legal damages O.K.
c. Not uncertain
i. Factors controllable
d. Not irreparable harm
f. Ninth hole is what gives greens their value.
g. Put up a safety net.
h. Improves property value in area/jobs
3. Should court issue injunction in this case?
a. Discretion allows judges wide leeway to craft what the injunction
b. LIMITS ON COERCIVE REMEDIES: EQUITABLE DEFENSES
1. These four defenses apply to all equitable remedies like injunctions,
constructive trusts, and equitable liens.
2. Modern equity defenses preserved even though the system of law and
equity has merged.
3. The defenses still have a moralistic foundation: a court will not grant
equitable relief if the plaintiff has behaved in a way prejudicial to the
defendant or offensive to public policy.
1. Laches (Delay)
a. Bars a P who has not acted promptly in bringing the action.
“Equity aids the vigilant, not those who slumber on their rights.”
b. With legal claim = only SoL applies, with both claims = SoL and
laches apply and equitable claim only = laches only applies.
c. Laches is flexible and focuses on weather the claimant delayed
unreasonably in asserting the action.
d. Certain factors, like the loss of facts, may excuse or toll the
running of the period of delay. Also looks to weather the delayed
claim would likely produce a substantial prejudice to the
defendant, such as from loss of material evidence, faded memories,
or economic losses.
e. Encourages parties to act fast and considers the underlying policy
claim of bringing repose to a stale claim.
f. Usually applies as a defense to equitable claims, so P can still
bring a legal claim.
g. A party can be foreclosed from a right or remedy because the delay
may result in prejudice to another who has objectively relied to
their detriment on a certain state of facts.
h. Kohle v. Eastman (5th Circuit 1980)
1. P sued based on patent infringement and wants to
impose the equitable restitutionary remedy of
constructive trust on the proceeds of D’s use of
SGK’s patented invention. D claims that P’s claims
are barred by Laches and Estoppel.
1. Laches elements are: 1) unreasonable delay and 2)
delay resulted in prejudice to D.
a. Presumed unreasonable if beyond SoL, and
P has burden of justification. When action
brought within SoL period, D must show
that the delay is unreasonable and that he
has suffered injury.
b. Look to when P knew or should have known
c. Factors that constitute prejudice:
i. Witnesses died
ii. Witness memory dulled
iii. Records destroyed/missing
iv. D made heavy capital investments
connected to alleged infringement
d. Factors that excuse delay:
i. Suing others in infringement actions
is not a complete bar, P must at least
inform the potential infringer of his
intent to pursue his rights under the
patent, here this was meet, sent
threatening letters, sued only 3 years
after suspecting infringement
2. Estoppel arises only when “one has acted as to
mislead another and the one thus misled has relied
upon the action of the inducing party to his
a. Requires: 1) delay, 2) prejudice, and 3)
misleading action by the plaintiff which
causes the D to engage in conduct which
would result in its injury if the suit were
allowed to go forward.
b. Here, no misleading conduct to abandon
2. Estoppel (Actions Inconsistent with the Right the Plaintiff Now Asserts)
a. Like latches, is a negative bar to what otherwise may be a
b. A party can be foreclosed from a right or remedy because the delay
may result in prejudice to another who has objectively relied to
their detriment on a certain state of facts.
c. The government as a D can more easily show prejudice to itself
when it asserts equitable defenses.
d. Geddes v. Mill Creek Country Club (Ill. 2001)
1. P filed complaint against D for intentional trespass
and intentional private nuisance based on errant golf
balls hit onto their property from D’s adjacent golf
course. D thought the P’s should be estopped from
bringing their claim.
2. P’s chose the fairway over other options, at a great
expense the golf course was redesigned to
accommodate the P’s, the contract between them
memorialized P’s requests.
1. General rule: where a person by his or her
statements and conduct leads a party to do
something that the party would not have done but
for such statements and conduct, that person will
not be allowed to deny his or her words or acts to
the damages of the other party.
2. Party claiming estoppel has the burden of proving
by clear and unequivocal evidence.
a. Barred from asserting actions may otherwise
have existed against the party who, in good
faith, relied upon such conduct and has
thereby been led to change his or her
position for the worse.
3. Elements: Party claiming estoppel must
demonstrate that (essentially that P misled D and D
relied to his detriment)
a. The other person misrepresented or
concealed material facts
i. Can arise from silence too, if have
duty to speak, had opportunity to do
so, and knowing the circumstances
b. The other person knew at the time he or she
made the representations that the
representations were untrue
i. No intent to mislead necessary
ii. Just can’t raise claim inconsistent
with previous declaration
c. The party claiming estoppel did not know
that the representations were untrue when
they were made and when they were acted
d. The other person intended or reasonably
expected that the part claiming estoppel
would act upon the representations
e. The party claiming estoppel reasonably
relied upon representations in good faith to
his or her detriment and
f. The party claiming estoppel would be
prejudiced by his or her reliance on the
representations if the other person is
permitted to deny the truth thereof
4. Here, D’s estoppel defense is meritorious.
a. (1-2)P’s by conduct encouraged building of
5th hole would damage D’s now to change.
Knowingly agreed to placement of fairway.
b. (3) D’s did not know at time of agreement or
construction that P’s would act contrary to
c. (4) P’s expected Sho-Deen would perform
provisions of agreement.
d. (5) D’s reasonably relied on P’s conduct to
their detriment. Adults, contracted with.
e. (6) D’s would be prejudiced if P’s were
permitted to deny their conduct. Spent lots
of money on plans, could of made money if
houses were there instead.
3. Unclean Hands
a. Legally sound claim that is morally tainted.
b. Interest of the court and the public, rather than relative fairness
between the parties, that creates this bar.
i. This applies when the 1)party seeking relief has behaved
inequitably 2) with respect to the rights being asserted in
the case. Specifically related to matter before the court.
d. Courts will not lend their assistance to wrongdoers.
e. Marked by maxim: “he who comes into the court of equity, must
come with clean hands.”
f. The inquiry is whether the behavior is offensive to the court. If so,
P will be left with a legal claim.
g. Conduct must occur during accrual of the action, basis cannot be
conduct which occurs during litigation.
h. Equitable defenses against governmental agencies are strictly
limited to instances where the agency’s misconduct is egregious
and the resulting prejudice to the defendant rises to a constitutional
i. North Pacific Lumber Co. v. Oliver (Or. 1979)
1. P hired D and under employment contract could not
compete with P for two years following termination
of employment. D voluntarily left and started
working for competitor. D submitted considerable
evidence of bad working environment. D claimed
unclean hands because employer had practice of
essentially stealing money through improper profits
on the resolution of claims, even though D
benefitted from this too.
1. Justified in quitting and working for competitor.
Courts will not interfere on behalf of a P whose own
conduct in connection with the same matter or
transaction had been unconscientious or unjust or
was bad faith, violated principles of equity and
2. Applied for the protection of the court. Has some
a. Misconduct must be serious
b. Bear relationship to subject matter of the
3. Here, yes clean-hands rule invoked. A court of
equity should not lens its aid to an employer who
attempts to enforce a contract of employment the
performance of which involves participation by the
employee in such wrongdoing. Don’t want to get
involved with a tainted relationship.
a. Initially in equity, now codified in law primarily.
b. Similar to clean-hands.
c. Measured at time of K formation.
d. This defense is specifically limited to contract remedies.
e. The defense does not create rights to support a claim for damages,
can limit effect of bad provision or make contract unenforceable.
f. Look to procedural and substantive issues. Process: manner of
contract formation – bargain struck was flawed with sharp
practices, lack of meaningful choice. Substance: terms themselves
to determine if the consideration exchanged was excessively
g. Senter v. Furman (Ga. 1980)
1. P executed warranty deed on his home for
consideration of ten dollars and other good and
valuable consideration when he was 74 and in poor
health. P claims induced to execute the deed by
fraud and undue influence at a time when he was
facing a malpractice claim which could of cost him
all of his assets. P claims D promised to give
property back to him after his suit was over.
1. Equity will not enforce the alleged trust
arrangement. P essentially used a conveyance to
conceal assets from creditors.
c. INTERLOCUTORY INJUNCTIONS
i. What It Is
1. Interlocutory relief is expedited relief for a short term that a court may
give before final adjudication of a case on its merits.
2. Given when a P needs immediate court action to avoid irreversible loss
while awaiting a trial on the merits.
3. Considered extraordinary relief that require a strong showing of its
4. A P must be prepared to compensate a wrongfully enjoined D for losses
unless P ultimately wins. (Deters P’s who doubt the strength of their
5. Preserve the status quo while litigation is pending.
6. Usually has to post bond to get the relief, which D can recover if P loses
7. In personam.
ii. Two Forms
1. Temporary Restraining Orders (Emergency)
a. A TRO is a brief stop-gap measure for a truly urgent situation.
b. Can be replaced with a PI after the court has had a few days to
receive some greater amount of evidence.
c. Usually only lasts enough time to get parties in room together with
judge to decide.
d. Constitutional limits of First Amendment.
i. Likelihood of Success on the Merits
1. Facts to look at:
a. Lawyer given honest advice
ii. Irreparable injury
1. Even if have high probability of success on merits
and balance of hardships favors P, court should not
issue an injunction without a showing of loss
beyond economic loss compensable with damages.
2. Facts to look at:
a. Cannot recreate, replace, rebuild, unique,
historical, difficult to figure out monetary
iii. Also balance; balance of hardships and public interest as
well as practicality and tribunal integrity
1. Here, need to have likelihood of success on merits
and chance of irreparable harm
2. D prefers this
a. Pre-discovery hard to know
b. Damage could happen if unlikely to win but
c. Can be imprisoned, contempt, before we
even know you have committed a wrong
d. Judge must find P’s claim is likely to be
successful on the merits and that there will
be irreparable harm to a significant portion
of the orchard.
e. The strength of the claim must have a
“probability” of success on the merits at the
ii. Alternative: sliding-scale jurisdiction
1. Need strong irreparable harm but we do not care if
likelihood of success on substantive merits of claim
2. Court will grant preliminary injunction for a weak
substantive claim only if the showing of irreparable
harm is exceptionally strong.
3. P prefer this.
a. High chance of abuse by P, unnecessary trial
and D will not be able pursue action
b. Un-doable so no going back, and can go
back with likelihood of success on the
g. Notice must be given unless:
i. Impossible/difficult to provide notice
ii. Good reason while notice would be harmful
i. Old: 10 days unless good cause for longer
ii. New rule: 14 days unless good cause for longer
iii. If no notice: hear on PI ASAP
iv. D can seek to dissolve on 2 days notice
i. Binding on person who received actual notice AND parties’
officers, agents, employees, and attorneys
2. Preliminary Injunction (Pressing but not an emergency)
a. A PI is appealable and can last until trial.
b. Notice must be given, opportunity to show up.
c. Duration, lasts until trial
d. Security bond to protect D.
i. Binding on person who received actual notice AND parties’
officers, agents, employees, and attorneys
f. Four traditional prerequisites for issuance of a preliminary
injunction are (burden on movant for these):
i. Substantial likelihood that movant will ultimately prevail
on the merits
1. Indicates only a probability
2. This factor huge with settlements
3. Sub. Likelihood of success (30-50%)
4. Probability (+50%)
ii. Showing that movant will suffer irreparable injury unless
1. Narragansett Indian Tribe v. Guilbert (Ist. Cir.
a. Although alteration to real property is
usually considered irreparable, here, court
found the possibility of irreparable damage
in the absence of an injunction was “very
faint” because there had already been
extensive site preparation work at the time
of the suit.
iii. Proof that the threatened injury to movant outweighs
whatever damage the proposed injunction may cause the
opposing party and
iv. A showing that the injunction, if issued, would not be
adverse to the public interest
g. Standard of Review
i. Standard of review for D.C.’s grant of denial of a PI is
whether there was an abuse of discretion by the trial judge.
Standard = deferential because decision is discretionary.
1. “Whether the judge exceeded the bounds of
permissible choice in the circumstances” not what
appellate court would have done in trial court’s
ii. Factors Showing Error:
1. T.C.’s decision must be based on relevant factors
2. T.C. must apply the correct legal standard for the
3. T.C. must apply correct law with respect to the
underlying issues in the case.
iii. Federal Rule of Civil Procedure 65(c)
1. Covers procedural requirements and courts have interpreted Rule 65 to
incorporate common law substantive requirements.
2. A P 1) must convince the court that an interlocutory order is necessary to
preserve the status quo pending trial because otherwise irreparable harm
will result. 2) P must also make some showing of the strength of the claim
in the underlying suit.
a. Bond security requirement in case the P is wrong.
i. Typically, in trial, everyone pays their own way, usually
only P has to loss cost of own attorneys fees
ii. This really is not a litigation cost, is cost based on outcome
decision, not litigation
iii. Helps to address the potential abuse concerns, counter
balance to extreme PI stance where someone can be held in
contempt for no proven reason.
iv. TRO/PI Motion in Siegel v. LePore
1. Court needed to consider whether the prospect of the vote recount could
do irreparable harm to Bush campaign. Court concluded that the harm had
not been shown.
a. Irreparable Injury must be neither remote or speculative, but actual
and imminent. Speculative if recount may eventually place Vice
President Gore ahead of Bush. Merely recounting does not equal
2. Traditional Jurisdiction
a. Low chance of irreparable harm so no injunction issued.
b. P could still go to trial and win at trial
c. If only wanted settlement leverage, and don’t get this, then do not
go to trial
v. Campaign committee for Bush sought to restrain the vote recount in Florida
demanded by the campaign committee for Gore. USSC intervened and ruled in
favor of Bush.
a. Can give supporting documents
b. Attach declaration of client
c. Survey map
2. Give Notice
3. Ready to Post Security
4. D can motion to get into court sooner
5. D CANNOT APPEAL A TRO ONLY A PI
6. Do not go to trial just appeal a PI
a. Abuse of discretion standard
b. Appellate courts are fairly differential (because trial court’s
decision is fairly subjective)
7. D can change action as a result of PI
Wed. Nov. 30th Optional Review 630 – 830
Nov. 21 945 -1145
Nov. 28 945 – 1145
Dec. 1 945 – 1115
Dec. 5 945 - 1115