Modern Damages Remedies Handout Modern Damages by mikeholy


									                                        Remedies Handout #1

Chapter 2.      Modern Damages

A.      The Nature Of Legal Damages

Gavcus (16)

Cause of action: trespass to realty and conversion ( Section 968.20=replevin action)

Remedy: damages
      -nominal damages ok for trespass to realty
      -no punitives without compensatory damages
      -no physical injury to realty: ways of measuring damages to realty = zero
              -cost to repair = zero
              -diminution in value = zero
              -cannot recover cost of locks and burglar alarm
      -consequentials recoverable so long as proximately caused by trespass
              -physical injury = mental distress damages recoverable
                        -failure of proof re: emotional distress (cost of treatment)
      -attorneys fees recoverable if both
              -prior litigation (the Section 968.20 action) was between P and a third party and
              -prior litigation was the proximate result of D’s wrongful act

1.      Proof of the Existence of Damages

Youst (19)

Cause of action: negligent or intentional interference with prospective economic advantage
                        -harness driver (D) interfered with P’s horse during a race, preventing P from
                        the chance of winning a cash prize
                        -issue: is interference with the chance of winning a contest too uncertain upon
                        which to base tort liability? Yes
                        -causation issue: is it reasonably probable that the lost economic advantage
                        would have been realized but for D’s interference? No
                        -Restatement 2d of Torts addresses the speculative nature of the outcome of a
                        horse race: requires a substantial certainty or at least a high probability of
                        success; certain contests may have a higher probability of ultimate success than
                        others; too speculative here;

Remedy: compensatory damages + punitives ($250,000)
      -the difference in prize money between Bat Champ’s actual finish and the finish which would
      have occurred but for D’s interference:
        -3 alternative amounts: for either 1st, 2d or 3d place

Pollock (21)

Cause of action: personal injury = negligence (never mentioned in case)

Remedy: damages
      -issue: existence of injury: without injury, P has not proved prima facie case for negligence,
      fraud or trespass to chattels
      -possibility (43%) v. probability = reasonable certainty = more probable than not

2.      Proving the Amount of Damages
        a.    Lost Business Profits

Atkin Wright (28)

Cause of action: negligence in the operation of the intercept
                  Interference with prospective business relationships

Remedy: damages
      -fact of damages (existence) = reasonable probability: needs more proof: P’s burden
      -amount of damages: not so exacting: must be more than speculative
      -here, no proof of lost net income: 3 months decline in revenues = speculative
      -no punitives without compensatory damages

        b.      Lost Capacity to Earn

Washington (31)

Cause of action: personal injury (negligence stemming from car crash); liability not at issue

Remedy: damages: economic: lost earning capacity
             -injury disabled P from pursuing the wrestling sport (D claims this item is based upon
             speculation and conjecture)
             -P compiled an outstanding record as an intercollegiate wrestler (103 wins and 4
             losses); P was a prime candidate for the 1972 US Olympic team;
             -P offered no evidence of his earnings at the time of the injury;
             -settled law in Nebraska that loss of earning capacity is a separate element of damages;
             -distinguish between: loss of past earnings = special damage v. impairment of earning
             capacity = item of general damages
             -recovery for loss or diminution of the power to earn in the future is based upon such
             factors as P’s age, life span, health, habits, occupation, talents, skill, experience,
             training, and industry;
                -ruling: ample evidence to sustain jury’s award for loss of earning capacity;
                -D can’t complain about the sufficiency of the evidence since D convinced the court to
                exclude P’s evidence of what a wrestling coach earns;

Childs (33)

Cause of action: wrongful death (under the Federal Tort Claims Act and Georgia’s wrongful
      death statute
                -negligence action against the US government under the Federal Tort Claims Act
                -US vicariously liable for the negligent act of USPS truck driver
                -P = Debra’s mother, Rosa Reese who is also the administrator of General Gordon’s

Remedy: damages
             -funeral and medical expenses not at issue
             -economic value on the loss associated with decedents’ (Debra and General) deaths
             based upon their lost future income, fringe benefits and household services;
             -issue: how to measure future economic damages; these amounts must be discounted;
             -Georgia’s wrongful death statute provides for the recovery of the full value of
             decedent’s life; two categories of damages:
                      (1) those items having a proven monetary value, such as lost potential lifetime
                      earnings, income, or services, reduced to present cash value and
                      (2) lost intangible items whose value cannot be precisely quantified, such as a
                      parent’s society, advice, example and counsel;
             -conclusion: the court may consider the economic losses as well as any non-economic,
             intangible losses

        c.      Pain and Suffering
                6.     Jury Instructions

McDougald (51)

Cause of action: negligence (personal injury action)

Remedy: damages
      -non-economic/non-pecuniary/ general damages
             -is P’s awareness relevant in calculating damages for loss of enjoyment of life? Yes (but
             see dissent)
             -is loss of enjoyment of life a separate item of damages from pain and suffering? No
             (but see dissent: loss of enjoyment = objective v. pain and suffering = subjective)
B.      The Divergence Between Tort and Contract in Limiting Damages

Evra (68)

Cause of action: negligence

Remedy: damages: compares and contrasts consequential damages in contract and tort law
      -consequential damages in tort are all those proximately caused by tort
      -consequential damages in contract are limited by foreseeability (Hadley v. Baxendale) =
      whatever is in the contemplation of the parties at the time the contract is formed
             -contract liability is strict
      -compare and contrast:
             -avoidable consequences
             -contributory negligence

3.      Where Do Tort Damages End?

Stern (73)

Cause of action: negligence

Remedy: damages
      -what kind of damages? Economic damages: when recoverable? Absent contract or injury to
      person or property, P may not recover in negligence for economic loss
      -economic loss is recoverable if tort is intentional

J’Aire (77)

Cause of action: negligence; interference with prospective economic advantage
                -construction work on restaurant stalled, causing loss of business profits
                -clearly foreseeable that delay would injure P’s business
                -focus on the foreseeability of the injury and the nexus between D’s conduct and P’s

Remedy: damages (economic losses)

Rule:   P’s interest in prospective economic advantage may be protected against injury occasioned by
        negligent as well as intentional conduct (minority rule)
                 -don’t need privity of contract between P and D;
                 -criticism: fears of excessive liability; fraudulent or collusive claims; liability imposed for
                 remote consequences

Rardin (79)

Cause of action: tortious conduct in contractual setting
                         -press damaged; the contract indemnified Rardin against physical damage to the
                         press caused by the negligence of Whitacre’s contractor, T&D;
                         -court ruled that Illinois law does not provide a tort remedy in this kind of case;
                         -the issue is not causation; it is duty: D could not estimate the consequences of
                         his carelessness; P could have protected itself from the consequences of a delay
                         or P could have negotiated for a liquidated-damages clause in his contract with
                         Whitacre that would have compensated him for delay in putting the press into
                         working condition after it arrived;
                         -Illinois law does not permit a tort suit for profits lost as the result of the failure
                         to complete a commercial undertaking

Remedy: damages: consequentials (not recoverable here)
             -the damages Rardin seeks from T&D are the profits that he lost as a result of the delay
             in putting the press into operation in his business

C.      Limitations on Damages Recovery
        1.     Avoidable Consequences

Bright (86)

Cause of action: personal injury (based on negligence): liability not contested

Remedy: damages
             -issue: Robbins’ alleged failure to mitigate damages due to her religious beliefs as a
             Jehovah’s Witness
             -rule: no recovery for damages that could have been avoided by using means which a
             reasonably prudent person would have used to cure the injury;
             -did P’s religious beliefs relieve her of duty to mitigate?
             -court opts for objective test: in considering whether P acted as a reasonably prudent
             person, jury may consider P’s testimony that she is a believer in the Jehovah’s Witness
             Faith, keeping in mind that the overriding test is whether P acted as a reasonably
             prudent person
             -judgment reversed and remanded for a new trial on damages alone
Dissent:        P’s duty to mitigate damages, though neutral on its face, is discriminatory as applied to
                a practicing Jehovah’s Witness whose religion forbids the acceptance of blood
                -the sincerity and good faith of P’s beliefs were not contested at trial
                -the trial court’s jury charge was an appropriate accommodation of P’s religious beliefs;
        2.      Collateral Source Rule

Helfend (97)

Cause of action: personal injury (negligence)

Remedy: damages
      -collateral source rule (aids P, not D) If an injured party receives compensation for his injuries
      from a source wholly independent of D, such payment should not be deducted from the
      damages which P would otherwise collect from D.

D.      Enhancement and Adjustment of Compensatory Damages
        2.    Punitive Damages

Tuttle (104)

Cause of action: personal injury

Remedy: damages
      -punitive damages: far more likely to be found in tort than in contract cases where malice is
      proved by clear and convincing evidence.

Gore (114)

Cause of action: fraud in the inducement of a contract
                         -BMW failed to disclose to buyer that the car had been repainted
                         -BMW argued that it was under no obligation to disclose repairs of minor
                         damage to new cars;

Remedy: compensatory and punitive damages, and costs
             -jury found BMW liable for compensatory damages of $4,000 + $4 million in punitive
             damages, based on the finding that the nondisclosure policy constituted “gross,
             oppressive or malicious” fraud

Issue: whether award of punitive damages was excessive;
       -Supreme Court: only when an award is “grossly excessive” is it arbitrary in violation of the Due
       Process Clause of the 14th Amendment;
       -here, no aggravating factors; no bad faith; no deliberate false statements
        -court draws no bright line: remands for further proceedings

Dissent:        J. Scalia does not regard the 14th Am’s due process clause as a secret repository of
                substantive guarantees against “unfairness”
                J. Ginsburg thinks the majority unwisely ventures into territory reserved for the states

        3.      Attorney Fees

Sala (131)

Cause of action: personal injury (negligence)

Remedy: damages
      -attorney fees: American rule: each party pays own attorney fees
                       -statutory (e.g., civil rights statutes)
                       -judicial doctrines:
                                -”common fund” doctrine (this case): analogous to an action in quantum
                                         -reasonable percentage standard (e.g., 1/3 of recovery)
                                         -lodestar method (hours worked times hourly rate)
                                -bad faith litigation
                                -when D’s breach of contract or tort leads P into litigation with a third
                                party (e.g., failed claim in Gavcus v. Potts)
                       -contracts may stipulate that breaching party pays nonbreaching party’s
                       attorney fees

E.      Tort Reform

Best (142)

Cause of action: personal injury (product liability action)

Remedy:         damages + declaratory and injunctive relief (to strike the statute that puts a $500,000
                cap on compensatory damages for noneconomic injuries)
                -non-economic damages in a personal injury action include pain and suffering, disability,
                disfigurement, loss of consortium and loss of society;
                -P challenges the cap on following grounds:
                        (1) it violates the special legislation clause of the Illinois Constitution
                        (2) it contains 3 arbitrary classifications that have no reasonable         connection
                        to the stated legislative goals;
                -court rules that the statutory cap on compensatory damages for noneconomic losses is
                arbitrary; moreover, the cap violates the constitutional prohibition against special
                legislation and also violates the separation of powers clause of the Illinois Constitution
                -dissent: there is rational basis for the cap: under rational basis review, we ask only
                whether the means chosen by the legislature are rationally related to the purposes of the
                law; disagrees with the majority’s conclusion that the cap on noneconomic damges
                improperly intrudes on the judicial power of remittitur

Chapter 3       Equitable Remedies--The Injunction

A.      Traditional Maxims Assist and Limit Injunctions
        1.     Equity Acts in Personam

Tabor (161)

Cause of action: breach of contract action brought in Wisconsin by breaching party (seller)
                        -non-breaching buyer sues first in Illinois; then, breaching seller sues in

Remedy: injunction to stop seller from bringing the breach of contract action in Wisconsin
               -seller ignores injunction so buyer asks Illinois court to hold seller in contempt

Issue: When may a court in one state enjoin a foreign (i.e., in another state) court proceeding?
       Rarely; only if the foreign proceeding will be likely to result in fraud or oppression

Note 2(c), page 163, discusses 1998 Supreme Court ruling in this area

Matarese (168)

Cause of action: fraud in the inducement of a contract
                         -D bought realty in his own name, using P’s money

Remedy: constructive trust
              -the Rhode Island court ordered D to convey the land to P, reserving for D a fee simple
              interest in the top floor of the building
              -if D refused, P could apply for the appointment of a commissioner to make the
              conveyance in D’s name;

Issue: whether the court had jurisdiction to compel an action relating to real property by a person no
       longer in the state? The court had jurisdiction over D; therefore, the court had power to order a
       conveyance even though the land was located abroad.

McNulty (171)
Cause of action: income tax evasion
                       -debtor won Irish Sweepstakes, but defeated IRS’s claim by depositing his
                       winnings in a secret bank account on the Island of Jersey
                       -D is in federal prison (US)
                       -US won a civil action for collection of taxes ($67,791) owed by D

Remedy: injunction
               -US seeks injunction directing D to repatriate his assets from the Island of Jersey and
               deposit them with the clerk of the court;
               -court issues injunction, given its jurisdiction over D, satisfied that the order would not
               violate the banking laws of the Island of Jersey;

Subsequent Events:       McNulty was found in contempt for failing to obey the order to repatriate
                         (coercive civil contempt); after 5 months, D was discharged without complying
                                 -keeping him jailed any longer would constitute criminal contempt

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