Remedies final exam outline

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					                  REMEDIES FINAL EXAM OUTLINE
I. Tort
   A. Injury to Plaintiff (damages)
      1. Compensatory
          a. Definition – seek to place plaintiff in the position he would be in today if
              defendant had not committed the wrong
          b. Application
              i. Assess how much money is needed to repair or replace the thing that is injured
              ii. Then either:
                   ‾ Award cost of restoring to original condition and value
                   ‾ Award difference in value between uninjured property and injured
                        property (diminution in value)
          c. Permanently injured (Tera Products v. Kraft)
              i. Facts: A tract of land was purchased that had PCB contamination. Damages
                   were permanent as they exceeded the fmv. Rule: If the damage is permanent
                   the measure of damages is limited to the difference between the fair market
                   value of the property before and after the injury, based on the rationale that
                   “economic waste” results when restoration costs exceed the economic
              ii. Cost of restoration exceeds market value prior to injury
              iii. If injury is permanent – measure of damages is limited to the difference
                   between fair market value of the property before and after the injury
          d. Assessing the value of property (Obrien v. Moran)
              i. Navy tug hit and sank a barge. No similar barges were available on the open
                   market. Having failed to prove the value of the barge, D failed to prove that
                   repairs were unreasonable. Libellant should have shown what the worth
                   actually was. This may have been found upon
                   ‾ Capitalization of earning capacity
                   ‾ Market value of similar property
                   ‾ Replacement cost less depreciation
          e. Limitations on damages
              i. Causation
                   ‾ Damages limited to that which the defendant caused
                   ‾ Mixed motive
                        1. If right reason provides sufficient independent cause – wrong reason
                            does not cause the harm unless pretextual
                        2. If independently would not have produced conduct – harm is wrongful
                   ‾ Physical injury/economic loss
                   ‾ Loss of chance
                        1. Plaintiff has a chance to avoid harm but defendant’s wrong reduced
                            that chance.
              ii. Avoidable consequences (mitigation of damages)
                   ‾ Limits the amount of damages a plaintiff can recover to the amount he
                        could not have avoided by reasonable conduct (does not necessarily have
                        to be successful)
                   ‾ Plaintiff make reasonable efforts to minimize loss
           ‾  Affirmative defense which defendant must plead and prove:
              1. Plaintiff’s efforts were unreasonable
              2. Amount of loss reasonable efforts would have prevented
      iii. Foreseeability
           ‾ Plaintiff can recover damages for loss that defendant did not have reason
              to foresee at the time of the action as a probable cause.
           ‾ Reason to know, not actual knowledge
      iv. Certain
           ‾ Plaintiff cannot recover damages that exceed amount evidence establishes
              with reasonable certainty
      v. Collateral source
           ‾ Benefits bestowed by sources other than defendant’s do not off set
              plaintiff’s recovery.
      vi. Statutory
           ‾ Can limit how much may be awarded and who receives the award
      vii. Constitutional
           ‾ If too excessive violates constitutional limitations – must receive fair
              notice of conduct subject to punishment and severity of the penalty
           ‾ Look at:
              1. Reprehensibility of the misconduct
              2. Relation between harm and damages awarded
              3. Difference between punitive damages and similar penalties
2. Actual Damages
   a. Direct Loss
      i. Value immediately before injury minus value immediately after
   b. Loss of use
      i. Compensate for inability to use property while repairs are being made
           ‾ Cost of temporary substitute
           ‾ Lost profits
   c. Intangible Loss
      i. Subjective value (Mieske v. Bartell Drugs)/ Landers
           ‾ Mieske: 37 reels of film that were destroyed. The footage was
              irreplaceable, so court affirmed 7500. Mieske and Landers: when it
              comes to property that it is irreplaceable: start with the fair market value,
              then if it has no market value but can be replaced or reproduced then the
              value to the owner is the proper measure of damages (this will exclude
              sentimental value, however minority of jurisdictions allow sentimental).
           ‾ Value to individual
           ‾ Destroyed property has no market value and cannot be
              replaced/reproduced therefore value to owner is the measure for damages.
              1. Market value
              2. Cost to replace/reproduce
              3. Value to plaintiff
              4. Emotional distress
      ii. Pain and suffering
           ‾ Must be consistent with prior awards in same jurisdiction
   ‾    Plaintiff must be aware (not in a coma)
   ‾    Cannot make pre diem argument or ask jury to put self in plaintiff’s place
   ‾    Pain and suffering is an uncertain damage award because there is no
        market for it.
     ‾ The jurisdictions are split on the per diem analysis for pain and suffering,
        some jurisdictions say it is reversible error.
     ‾ Most jurisdictions only allow pain and suffering awards when there has
        been a physical injury, this is because pain and suffering awards are often
        considered parasitic damages (on top of the damages).
     ‾ Seffert:
        1. Disfigured and permanently crippled. Jury awarded a large amount of
            damages for pain and suffering. Trial judge denied a motion for a new
            trial. Each case must be decided on it’s own facts. Didn’t shock the
        2. Rule: whether or not the verdict is so out of line with reason that it
            shocks the conscience and necessarily implies that the verdict must
            have been the result of passion and prejudice.
     ‾ Sharman:
        1. women hit by car and becomes a quadriplegic.
        2. Rule: Damages have to be “reasonable” and not “ideal”
iii. Loss enjoyment of life (hedonic damages)
     ‾ Reduce capacity for joy from activities that once brought joy (running,
        tennis, dancing)
iv. Indignity and Emotional Distress
    - Joan v. City of Chicago: Strip search. Damages awarded were excessive
        as compared to similarly situated cases.
    - Rule: To determine whether the award was excessive must look at the
        totality of the evidence and comparability to other cases.
v. Wrongful death
     - Green v. Bittner
     ‾ Belongs to the survivors, including:
        1. Out of pocket costs – funeral expenses
        2. Loss of support – lost income
        3. Loss of service – cost to replace services (nanny for lost mom)
        4. Loss of society – affection, care, comfort, companionship
        5. Grief and distress
vi. Loss of Consortium
    - Whittlesy v. Miller:
            o Respondent's husband was injured in an automobile accident
                involving petitioner. The husband settled his claim with petitioner,
                but respondent filed an independent action to recover for loss of
            o Rule: consortium damages were distinct from the damages incurred
                by the "impaired spouse." Did not amount to double recovery.
    - Components
        1. Services
                        a. Pecuniary losses to the plaintiff (cost to replace services)
                    2. Society
                    3. Sexual relations
   3. Nominal Damages
      a. Plaintiffs who suffer no actual loss can recover a trivial amount to vindicate rights
      b. Typically $1
      c. Usually arises when plaintiff misjudges the likely extent of recovery
   4. Punitive Damages
      a. Seek to impose an additional burden on the defendant beyond the cost of
      b. Rationale – retribution and deterrence
      c. Conduct must be willful, wanton and malicious as well as fraudulent and
      d. Determining Amount
           i. Reprehensibility of conduct
                ‾ More reprehensible the greater the damages
                ‾ Intentionally seek to hurt plaintiff
                ‾ How serious was the harm sustained by the plaintiff
           ii. Defendant’s wealth
           iii. Amount of compensatory damages
           iv. Amount likely to deter similar conduct by defendant and others
B. Restitution
   1. Definition – a person who has been unjustly enriches at the expense of another is
      required to make restitution to the other.
   2. Beacon Homes v. Holt
   3. Legal remedies
      a. Unjust enrichment
           i. Received a benefit and retention of benefit would be unjust
           ii. Benefit can be transfer of property or saved from expense
           iii. Requirements
                ‾ Receive a benefit
                ‾ Liable to pay for benefit if circumstances of its receipt or retention if
                    unjust not to do so
   4. Stewart v. Wright
   5. Measuring the enrichment
      a. Restitution can be measured by D’s gain, look at:
           i. Facts of the case,
           ii. nature of the benefit conferred (i.e., money, property, profits, services, etc.)
           iii. nature or degree of D’s wrongdoing
           iv. substantive policies underlying the claim or defense.
      b. Frambach v. Dunihue
   6. Equitable remedies
      a. Constructive trust (Sieger v. Sieger)
           i. plaintiff sued his wife for relying on her - wife transferred title to land that
                was the labor of the husband - court held that plaintiff owned property and
        defendant held title in trust for plaintiff - wife obtained title in bad faith and
        therefore has constructive trust to benefit her husband
   ii. Created and imposed by operation of law to prevent unjust enrichment,
        without any reference to the trustee’s actual or supposed intent to create a
        trust, and sometimes in contravention of the “trustee’s” intent.
   iii. D who is unjustly enriched becomes the TRUSTEE over the unjustly acquired
        property (both tangible and intangible) and must transfer it to P (only duty is
        ‾ P must be an equitable owner, and d has legal title
        ‾ D got it thru misappropriation: fraud, breach of fid duty
   iv. If property is worth less than the claim, p can not sue for the remainder but if
        property is worth MORE than the claim, P gets the windfall
b. Equitable Lien
   i. Leyden v. Citicorp Industrial Bank
        ‾ Petitioner and Tommy Howe were divorced they owned a property in joint
            tenancy. Petitioner was ordered to quit claim her 1/3 interest and Howe
            would execute a promissory note in the value of 10,000. The petitioner
            filed the dissolution decree. Tommy got a loan from Citicorp, after the
            deed was recorded, the howes filed for bankruptcy and the debt evidenced
            by promissory notice to petitioner was discharged. Citicorp foreclosed.
            Petitioner filed a complaint asking for a declaratory judgment that the
            recorded dissolution decree created a judicial or equitable lien on the
            property. Citicorp transferred the property to the evan’s. If an equitable
            lien were not imposed, Tommy would be unjustly enriched.
        ‾ Rule: If a transferee has notice of the equitable lien the transferee who
            pays value for the property is on notice of the equitable lien, the transferee
            takes the property subject to the lien-they were on constructive notice.
   ii. Similar to constructive trust but does not require the defendant to hold the
        property – court imposes a lien against the property to secure the plaintiff’s
   iii. act as a security interest for judgments. As a security interest held by the D,
        the plaintiff is a secured creditor. Distinguishable to the constructive trust
        because if the plaintiff shouldn’t get all the property then should get an
        equitable lien.
   iv. Is available for p if p is not the legal holder of the property
   v. To secure debts by giving the holder the right to sell the property to satisfy
   vi. If property is worth less than the claim, p can still sue for the remainder but if
        property is worth more than the claim, must give back the surplus
   vii. Pro tanto = no pro rata share of the profits if d acted in bad faith
   viii. If d sold property to 3rd part bfp, then p must go after d for $ damages, the
        property is cut off
   ix. P is a secured creditor, and has priority over unsecured creditors, not all
c. Subrogation (Wilson v. Todd)
           i. Where property of one person is used in discharging an obligation owed by
               another or a lien upon the property of another under such circumstances that
               the other would be unjustly enriches by the retention of the benefit thus
               conferred, the former is entitles to be subrogated to the position of the oblige
               or lien holder.
       d. Advantages of Constructive Trusts and Equitable Liens
           i. Tracing
               ‾ Trace property into other forms
               ‾ G&M Motor Company v. Thompson
               ‾ In Re Allen
           ii. Priority Over Other Creditors
               ‾ Banton v. Hackney
C. Injunction
   1. Requirements For Provisional Relief
       ○ TRO
           ▪ Plaintiff must show immediate and irreparable injury will result absent the
           ▪ Plaintiff must show that injury will occur before a hearing can be heard on
               whether to grant a preliminary injunction.
       ○ Preliminary injunction
           ▪ Plaintiff must show immediate and irreparable injury will result absent the
           ▪ Plaintiff must show the injury will occur during the pendency of the lawsuit.
       ○ Five Factor Test
               1. Unless the restraining order is issued, they will suffer irreparable harm
               2. Hardship they will suffer absent the order outweighs any hardship the
                    defendant would suffer if the order were to be issued
               3. They are likely to succeed on the merits of their claim
               4. The issuance of the order will cause no substantial harm to the public
               5. They have no adequate remedy at law.
   2. Hearing Requirement
       ○ Due process clause requires that all affected individuals be given notice of an
           injunction hearing and an opportunity to participate.
       ○ Rule 65 FRCP – allows courts to issue ex parte TROs, but creates a strong
           presumption in favor of contested hearings.
       ○ Can be waived if giving notice would frustrate plaintiff’s ability to protect its
           rights (Vuitton).
       ○ Except for TROs - can be immediately appealed [28 USC 1291(a)(1)]
   3. Persons Bound
       ○ FRCP 65 – TRO/preliminary injunction is binding only upon the parties to the
           action, their officers, agents, servants, employees, and attorneys, and upon those
           persons in active concert or participation with them who receive actual notice of
           the order by personal service or otherwise.
       ○ Substitution of parties
           ■ If person bound is a public officer and is replaced by another officer, the new
               officer is bound.
      ○ Successors in Interest
         ■ Persons acquiring an interest in property that is subject of a litigation is bound
             by, or entitled to the benefit of, a subsequent judgment despite lack of
   4. Notice
      ○ FRCP 65(d) – preliminary injunction is binding only on those who receive actual
         notice of the order by personal service or otherwise.
      ○ Requirements:
         1. Notice must come from a source that is entitled to credit
         2. Must adequate inform defendant of the act sought to be prohibited.
   5. Bond Requirement
      ○ Post security to protect the defendant against loss.
      ○ FRCP – 65(c) – no restraining order or preliminary injunction shall be issued
         except upon the giving of security by the applicant, in such sum as the court
         deems proper, for the payment of such costs and damages as may be incurred or
         suffered by any party who is found to have been wrongfully enjoined or
      ○ Exception – indigents, rich who can easily afford to pay damages
      ○ Recovery limited to the amount of bond and to the amount of loss proven by the
   6. Stays
      ○ Party against who injunctive relief is granted can seek a stay from an appellate
      ○ Ordinarily required to seek relief from the court that issued the order within 2
         days [FRCP 65(b)]
      ○ Requirements
         1. Petitioner made a strong showing that it is likely to prevail on the merits of its
         2. Petitioner shown that without such relief it will be irreparably injured
         3. Would the issuance of the stay substantially harm other parties interested in
             the proceedings?
         4. Public interest
B. Permanent Injunction
   1. Framing
      ○ FRCP 65(d) – imposes limits on the form, scope and content of injunctions.
         “Every order granting an injunction and every restraining order shall set forth the
         reasons for its issuance; shall be specific in terms; shall describe in reasonable
         detail, and not by reference to the complaint or other document, the act or acts
         sought to be restrained.”
      ○ Injunctions which implicate constitutional rights scrutinized with greater
      ○ If no constitutional right – courts rarely conclude that an injunction is too vague.
      ○ Contempt
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Description: Remedies such as injunction, restitution, contracts, and torts