Term
| What are compensatory damages? |
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Definition
| Damages intended to compensate a plaintiff for a legally recognized harm or injury. |
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Term
| In a tort action, what type of compensatory damages are available? |
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Definition
Compensation for past and present harms as well as future harms including:
1. Pain and suffering: Physical and emotional consequences of harm. Plaintiff must be aware of harm.
2. Loss of enjoyment
3. Emotional distress |
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Term
| What types of damages are available in a contract action? |
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Definition
1. Expectation
2. Reliance
3. Restitutionary
4. Nominal
5. Punitive (rarely) |
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Term
| What is the purpose of punitive damages? |
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Definition
| To punish a defendant who engages is serious misconduct with an improper state of mind. They are also intended to deter others from engaging in this type of conduct. |
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Term
| What are the constitutional restraints on punitive damages? |
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Definition
Punitive damages in a civil action may violate due process if such damages impose a grossly excessive punishment on the tortfeasor. Courts determine this by weighing 3 factors:
1. The degree of reprehensibility of the defendant's conduct.
2. The disparity between the harm or potential harm suffered by the plaintiff and the punitive damage award.
3. The difference between this remedy and the civil penalties authorized or imposed in comparable cases. |
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Term
| What factors should be considered in determining the reprehensibility of the defendant's conduct? |
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Definition
1. Whether the harm caused was physical rather than economic
2. Whether the tortious conduct demonstrated an indifference to or reckless disregard for the health or safety of others.
3. Whether the target was vulnerable financially
4. Whether the conduct involved repeated actions rather than an isolated incident.
5. Whether the damage was a result of intentional malice, trickery, deceit rather than mere accident. |
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Term
| Must a plaintiff establish actual damages before the award of punitive damages? |
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Definition
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Term
| When will an employer be vicariously liable for punitive damages for the tort of its agent? |
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Definition
| When the action was taken in the scope of employment or at the direction or approval of the employer. |
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Term
| What is the standard for the enforceability of liquidated damages clauses? |
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Definition
Whether the damages are reasonable in light of either anticipated or actual loss.
An unreasonable amount is unenforceable and characterized as a penalty. |
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Term
| Is an agreement to enforce other contract remedies aside from liquidated damages enforceable? |
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Definition
| Yes, with the exception of an agreement for specific performance. |
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Term
| What are incidental damages? |
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Definition
Reliance-type reasonable expenses incurred in a transaction that are recoverable without the special proof required for consequential damages.
For a seller, they include: charges, expenses, commissions, expenses for transportation, care, storage.
For a buyer they include expenses for inspection, receipt, transportation, care |
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Term
| What are consequential damages in a contract action? |
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Definition
| Damages that arise naturally from the breach if they were within the contemplation of the parties at the time the contract was created. |
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Term
| Lost profits and earnings must be proven with... |
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Definition
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Term
| What is the avoidable consequences limitation? |
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Definition
| A plaintiff is denied recovery for any harm or loss that she could have reasonably avoided. The burden is on the defendant to show that the plaintiff could have avoided such damages. An unsuccessful effort to mitigate is recoverable. |
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Term
| Can costs be recovered for a plaintiff's attempted but failed mitigation? |
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Definition
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Term
What is the direct benefit rule in a tort action?
Contract action? |
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Definition
A benefit received by the plaintiff as a direct consequence of the defendant's tortious conduct may offset damages which they are entitled.
Contract: If a defendant's breach results in a plaintiff's savings, those savings are subtracted from the plaintiff's damages. |
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Term
| What is a collateral source benefit? How does it work in the tort context? Contract context? |
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Definition
A benefit received by a third party (insurer) as a result of damages by a defendant does not reduce the damage award.
Contract: Not applied very often in contract. |
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Term
| Can emotional distress damages be recovered in a B.O.C. action? |
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Definition
| If the breach is likely to cause emotional distress, typically related to improper handling of a dead loved one, casket etc. |
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Term
| Special damages i.e. consequential must be... |
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Definition
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Term
| When are litigation expenses awarded? |
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Definition
| Usually only if authorized by statute or provided in the contract. |
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Term
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Definition
| A temporary restraining order is an injunction for a short period of time to "preserve the status quo until a preliminary injunction can be obtained" |
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Term
| What is a preliminary injunction? |
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Definition
| An injunction issued before or during a trial that is effective until there is a final judgment of the court. |
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Term
| What are the factors for a preliminary injunction? |
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Definition
1. Whether the plaintiff will suffer irreparable harm if the injunction is not issued (lack of adequate remedy at law)
2. Weighing the hardships of the defendant and plaintiff to see if the plaintiff's will be significantly greater in the absence of issuance.
3. The likelihood the plaintiff will succeed on the merits. |
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Term
| When is a permanent injunction established? |
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Definition
1. Irreparable harm
2. Balancing of the hardships must be significantly greater on the plaintiff's side.
NO LIKELIHOOD OF SUCCESS ON THE MERITS QUESTION |
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Term
| What is the doctrine of laches? |
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Definition
| The failure to assert one's rights in a timely manner resulting in the claim being barred. |
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Term
| What is the doctrine of unclean hands? |
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Definition
| The plaintiff is not entitled to an equitable remedy if he is acting unethically or has acted in bad faith with respect to the subject of the complaint. |
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Term
| What are the requirements for specific performance to be appropriate? |
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Definition
| 1. There must be a contract 2. The contract terms must be sufficiently certain to provide a basis for the order 3. The plaintiff must have performed or be ready wiling and able to perform 4. Damages must be an inadequate remedy 5. Relief must be equitable 6. Enforcement must be feasible. 7. Defenses |
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Term
| What defenses are available against specific performance? |
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Definition
| Laches, estoppel, unclean hands, etc. |
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Term
| What are the requirements for rescission? What type of damages are awarded? |
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Definition
1. Give notice of rescission
2. Return or tender the benefits.
Usually restitution. |
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Term
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Definition
| The judicial rewriting of an agreement. |
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Term
| In what contexts is reformation appropriate? |
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Definition
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Term
| What does not constitute a defense to reformation? |
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Definition
| The parol evidence rule, the statute of frauds, negligence. |
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Term
| What is a declaratory judgment? |
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Definition
| A judgment that determines the rights, status, or other legal relations that arise out of, or are affected by a deed, will, contract, statute, or ordinance. |
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Term
| When is restitution appropriate? |
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Definition
| When a person is unjustly enriched. |
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Term
| What is the difference between the recovery of restitution from an innocent wrongdoer and recovery from a "conscious wrongdoer"? |
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Definition
An innocent wrongdoer will only be liable to the extent of the value of the benefits wrongfully obtained.
A conscious wrongdoer will be liable for the greater of either the market value for the obtained services or net profit attained by the wrongdoing. |
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Term
| What is a constructive trust? |
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Definition
| A judicially created remedy that imposes a duty to convey property to the plaintiff if the defendant would be unjustly enriched by retaining it. |
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Term
| What must be established to secure a constructive trust? |
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Definition
1. The defendant holds title to property to be subject to the constructive trust
2. The defendant's retention of the property would unjustly enrich the defendant.
3. The legal remedy is inadequate. |
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Term
| What is an equitable lien? |
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Definition
| A judicially created remedy that recognizes the plaintiff's claim against the defendant by imposing a lien on the property as security for the claim. |
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Term
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Definition
| A judicially created remedy that permits the plaintiff to stand in the shoes of a creditor or leinholder if the plaintiff's properrt was used to discharge an obligation or lein on the property of a defendant. |
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Term
| Under what situations will restitution be reduced? |
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Definition
| Where the benefit has been lost, stolen, or destroyed. Where the defendant mistakenly receives a benefit which the defendant expends or consumes... |
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Term
| Is equitable resitution available against a bona fide purchaser without notice? |
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Definition
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Term
| A plaintiff who supplies goods or services in an emergency can obtain restitution if: |
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Definition
2. The goods or services were necessary to prevent the defendant from suffering serious bodily harm or pain.
2. The plaintiff intended to charge for the goods or services
3. The plaintiff did not have a reason to know that the defendant would not consent to receiving them |
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Term
| When can a plaintiff seek restitution for an unsolicited benefit? |
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Definition
1. Emergency
2. Supplying necessities
3. Public health and safety
4. Preservation of personal property of the defendant. |
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Term
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Definition
| The plaintiff can regain possession of the property and loss of use of the property in an action for replevin. |
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Term
| What is an action for ejectment? |
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Definition
| A common-law action to remove a person from their land who is wrongfully there and may also seek damages for the value of the use of the land. |
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Term
| What is the election of remedies rule? |
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Definition
| A plaintiff cannot pursue a remedy that is inconsistent with a remedy already chosen by the plaintiff. |
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Term
| Which damages are generally treated as being inconsistent with eachother? |
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Definition
| Damages, specific performance, and restitution. |
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Term
| The choice of remedy rule only applies: |
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Definition
| When the defendant has materially changed his position in reliance on the plaintiff's affirmation of the contract. |
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Term
| Can a plaintiff plead inconsistent remedies? |
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Definition
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Term
| What remedies are available for trespass? |
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Definition
1. Damages
2. Injunction
3. Restitution |
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Term
| What is the remedy for encroachment? (building a structure on plaintiff's land) |
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Definition
1. Damages
2. Injunction
3. Self-help |
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Term
| What is the remedy for injury to real property? |
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Definition
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Term
| What are the available remedies when a defendant trespasses onto the plaintiff's land for the purpose of severing items from plaintiff's land? |
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Definition
1. Damages measured by reduction in value of land or CONVERSION
2. Injunction
3. Restitution |
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