20190406231027remedies_1_.pptRemedies
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EQUITY COMMON
(Court directs a person LAW
To do or refrain from doing (Court determin-
Something) ation of legal
| Rights & award
| Of damages)
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Injunction Replevin
_________ |
| | Ejectment
Mandatory prohibitory |
| Damages
Mandamus 1)compensatory
| 2)punitive
Specific 3)nominal
performance 4)liquidated
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Reformation |
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Rescission |
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________________ _________________
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Declaratory judgment
restitution
Common law Remedies
- Determination of legal rights &Damages
- Purpose
- Tort=put ∏in the same financial condition as before the injury
- Contract=put ∏ in the SAME condition as if the contract had been preformed
- Determination of legal rights:
- Declaratory judgment (court declares a law or official behavior to violate the Const. or a law)—can be equity
- Action to quiet title (determine who owns property)
- Ejectment (remove a person from real property)
- Replevin (Recover personal property unlawfully in the hands of another)
Common law Remedies
- Damages:
- Compensatory (to compensate for injury)
- Punitive (for specific or general deterrence)
- Nominal (a trivial amount where no loss can be proven)
- Liquidated (contract parties agree in advance to an amount if a breach occurs)
Damages: general principles
- 1) No speculative damages
- 2) damages are typically limited to those REASONABLY FORESEEABLE by the ∆.
- Book example—a contract for deliverance of goods to open a new business. If ∏ sues for lost good will due to failure to open the store; If ∆ didn’t know it was for a store opening, those damages would not be recoverable (not foreseeable by ∆.
- 3) future profits are difficult to establish
- 4)rule of mitigation
- ∏ has a legal duty to take reasonable steps to minimize damage
- Prevents recovery for damages that are foreseeable and could have been avoided.
- 5) ∏ has the burden of proof (preponderance of evidence) to document monetary loss
Damages: general principles
- GENERAL DAMAGES
- The natural & necessary result of the injury Those foreseeable)
- Do not need to be listed in the pleadings (complaint) but DO need to be substantiated at trial
- Battery=unauthorized touch=general $$=pain & suffering, mental anguish
- Special Damages
- Unnatural damages (special) that arise from an injury (those not foreseeable)
- Need to be included in the complaint and documented at trial
- Battery= hospital expenses, loss of earnings, diminished ability to work
Damages: general principles
- Benefit rule
- Where ∆’s misconduct causes both injury to the∏ but also confers some benefit, ∏’s damage award will be reduced by the amount of the benefit
- Macomber v. Dillman
Punitive damages
- Awarded to deter the behavior that led to the injury
- Specific deterrence= to deter the specific ∆
- General deterrence=to deter the ∆ and all similar in the ∆’s class (all auto mfgrs.)
- No punies for
- Breach of contract
- Normal or gross negligence
- Have to get to willful & wanton conduct for punies
The exercise of reasonable care
Simple negligence, failure to exercise reasonable care
Affirmative defenses=contributory & comparative negligence as well as assumption of risk.
Gross negligence, reckless disregard for consequences to the safety and property of others=criminal negligence but not punies
An awareness that behavior could cause harm & decision to continue
Willful & wanton behavior (intentional, deliberate, purposeful, malicious (ill will) punies no contributory defense p.275
More Punitive damages
- Punitive damages are generally created by the legislature
- Antitrust, environment, securities fraud or violation, insurance where co. wrongfully refuses to pay, wrongful discharge on race or sex=compensatory, punies & equity (reinstatement)
- Wilen v. Falkenstein
Other damages
- 1) Hedonic damages
- Loss of enjoyment of life
- As opposed to loss of limb, or money
- Loss of consortium
- Loss of friendship
- Exonerated prisoners
- Sep. 11th recovery fund
- Most states recognize this kind of damages but some do not.
- The controversy is about how to establish them
- Some states allow expert testimony but most do not
- Some include it in pain & suffering
Other damages continued
- Nominal Damages= A token sum of money where there has been a breach of a duty but no identifiable harm
- Trespass
- General Sheron
- Liquidated damages
- Those agreed to in a contract or $$ deposited against future damages (rental deposit)
- Courts are suspicious
- Not allowed if amount is to deter a breach rather than compensate for a loss.
- Ok if damages are difficult to calculate or uncertain
- Parties agree in advance
- Amount is reasonable given the loss
- End of chapter scenario # 2 p.246
Common law remedies for other than $$damages(determination of legal rights)
- 1) declaratory judgment
- Judicial determination of legal rights. Declare a statute unconstitutional (accompanied by request for an injunction)
- Some states consider it an equity remedy
- Action to quiet title
- Judicial determination of rightful ownership of real property
- Ejectment
- Action to remove one from real property
- Replevin
- Action to recover personal property in the wrongful possession of another
Equity Remedies
- 1) only available where payment of $$ damages will not make the ∏ whole
- Never available where money damages makes the ∏ whole
- Never tried to a jury (judge acts as a court of conscience)
- Today, most trial courts of general jurisdiction have both common law & equity jurisdiction
- Not unusual to ask for both a common law remedy & an equity remedy. Common law case can go to a jury but equity will be decided by judge.
injunctions
- Mandatory
- Compels one to act (writ of mandamus)
- Prohibitory
- Prohibits one from acting
- 3 different injunctions
- “Permanent”
- After a full adversary hearing—can be dissolved or modified—if a law is declared unconstitutional there must be an injunction to stop enforcement of it.
- Preliminary
- Notice & hearing but not a full adversary hearing (testimony but no compulsory witnesses or cross). Typically to preserve status quo until a trial determines legal rights (Definus v. odegaard)
- TRO
- Ex parte=only one side. No notice and no hearing, typically domestic violence cases and stalking cases
Proofs for injunctions
- 1) permanent
- Because it is a full civil trial—preponderance of evidence
- Tom Brady v. The NFL; injunction to stop the owners lock out and declaratory judgment (trial, April 6, 2011)
- 2) preliminary
- A)probable success on merits and/or irreparable harm (the greater the harm, the less likelihood of success necessary)
OR
- B) serious legal issues are raised & balance tips in movant’s favor
- Harper v. Poway Sch. Dist
- 3)TRO
- A)irreparable harm to moving party & no time for a hearing
- B)balance
- Uncompensatable harm to ∆
- Harm to ∏ if not granted
Recission & reformation
- Recission
- Contract law only
- Contract made via deception or mistake
- If granted, Court cancels the contract
- Reformation
- Contract fails to accurately express the intent of the parties via mistake or bad language
- Court rewrites the contract
- DOT v. Ronlee, Inc.
Equitable Maxims
- Short statements that epitomize an equity principle. Some follow
- 1) clean hands doctrine
- 2) equity will not enforce a one-sided contract
- 3) for every wrong, there is a remedy
- 4) equity won’t tolerate unfair delay (Latches)
- Campbell Soup v. Wentz Bros.
- N.Y. Giants v. L.A. Chargers
- Archie Sparro and the horse Kerro
- Blach v. Hillel Torah North Suburban school
- Isbell v. Brighton Area Schools
restitution
- To return property in possession of ∆ to the ∏.
- Can be either equity or common law
- Equity=∆ returns the property to ∏
- Common law (replevin) sometimes property is not returnable– return of $$ rather than property
- Amount is determined by ∆’s gain rather than ∏’s loss
- ∆ takes ∏’s car worth $4,000 and sells it for $8,000, ∆ will be forced to forfeit $8,000 to ∏
- Iacomini v. Liberty Mutual Ins. Co.
Remedies
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__________________|_____________________
| |
EQUITY COMMON
(Court directs a person LAW
To do or refrain from doing (Court determin-
Something) ation of legal
| Rights & award
| Of damages)
| |
Injunction Replevin
_________ |
| | Ejectment
Mandatory prohibitory |
| Damages
Mandamus 1)compensatory
| 2)punitive
Specific 3)nominal
performance 4)liquidated
| |
Reformation |
| |
Rescission |
| |
________________ _________________
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Declaratory judgment
restitution
