REMEDIES

Course-LL.B-I

Subject-Law of Tort I

Unit-IV

1

How do you approach a remedies essay question?

• Determine if there are legal remedies available

• Determine if there are equitable remedies available

• Determine if there are any equitable defenses that may apply

What must you do before discussing remedies in an essay question?

• Determine what substantive law is involved AND

• Establish if the plaintiff has a case

What are the primary 2 categories of remedies?

• Legal Remedies

• Equitable Remedies

In what order must remedies always be analyzed and why?

• First look for LEGAL remedies

• Secondly, look for equitable remedies

• Reason: legal remedies must be analyzed first because equitable remedies are not available UNLESS the plaintiff can first show that no adequate legal remedies were available

DAMAGES• Damages are legal remedies

• Compensatory damages

• Punitive Damages

• Liquidated Damages

• Nominal Damages

• Statutory Damages• Statutory damages are available when a statute provides for a minimum recovery

amount in the case of violation. P must prove the statute was violated and that the violation caused the plaintiff actual harm before any recover can exist

RESTITUTION

• Intended to prevent the Defendants unjust enrichment and work to disgorge the defendant of benefits wrongfully obtained.

• Can be both Legal and Equitable

• Lets flip to the next slide to look at the legal and Equitable remedies

Legal Restitution

• Remember, we want to always go for the legal remedies first

• Thus, we look to the legal restitution:

• Money (This is not money damages, it is more like disgorging the D of benefits he

gained wrongfully)

• Replevin

• Ejectment

• Quasi Contract (unjust enrichment)

Equitable Restitution

• Constructive Trust

• Equitable Lien

• Rescission

• Reformation

COERCIVE REMEDIES• Used to force an individual to either do a

certain act or to refrain from doing a certain act

• If they do not follow the orders give them by the court – they are in contempt

• Coercive remedies include:

• Injunctions (torts)

• Specific Performance (Contracts)

Review: Legal Remedies in Tort

• Damages

Compensatory Damages

Consequential Damages

Nominal Damages

Punitive Damages

• RESTITUTION

Money

Replevin

Ejectment

Equitable Remedies Available in Tort -Review

• Equitable Restitutionary Remedies

Constructive Trust

Equitable Lien

• Equitable Coercive Remedies

Injunctive Relief

Contract – Legal RemediesDamages

• Compensatory Damages

• Consequential Damages

• Liquidated Damages

• Nominal Damages

Restitutionary

• Quasi Contract

• Replevin

• Ejectment

Contract Equitable Remedies• Constructive Trust

• Equitable Lien

• Rescission

• Reformation

• Specific performance

Let’s break down Damages

COMPENSATORY DAMAGESCompensatory damages are calculated on the cost of the injury to the Plaintiff and areIntended to compensate the plaintiff for her loss

In tort cases, we want to put the plaintiff BACK into the position they were in prior to the harm suffered (or as close as possible)Paulsgraph

In Contracts, we want to put the innocent party in the position they WOULD BE IN if the contract had been fulfilled (expectation)Hadley v. Baxendale

Contracts Expectation Interests

• Definition: the expectation interest provides the non breaching party with the profits it would have received had the contract been performed

• Rule: Compensatory damages for breach of contract usually are computed based on the non breaching partys expectation interest

Contracts: Reliance Interest• Definition: Reliance interest seeks to place

the non breaching party in the position it would have been in had the contract never been created

• Rule: Compensatory damages for breach of contract are computed based on the reliance interest when the non breaching party suffered harm due to its reasonable reliance on the contract

What is required to get compensatory damages?

• D must breach a duty or contract

• The breach is the actual and proximate cause of the harm or injury in dispute

• Harm was foreseeable at the time of the breach

• Damages can be calculated with reasonable certainty AND

• P made all possible mitigations

The “Certainty” Requirement• Rule: Actual Damages must be certain and not speculative

• The amount need not be “absolutely certain” but they need to be able to be approximated under reasonableness

• Example: a restaurant owner has been in business for 5 years, he has made 100k a year in profits for those last 5 years on an average – Joe Dry Cleaner next door has a fire that burns down Restaurant owners business. Restaurant owner can claim that his damages were 100k because it has been reasonably certain and established that he has made 100k a year and expected to make the same amountthis year, but for the fire.

• Another example: O just started a business which was destroyed by A when A drove his car into the business and it blew up. O sues A for damages. **The damages are too speculative here and O will not likely get much for actual damages because the value of the damages cannot be ascertained.

How are future losses created

“All Or Nothing Rule”

Rule: To be compensated for future losses, a plaintiff must demonstrate that the losses are more likely than not to occur. Upon such a showing, the plaintiff can recover in full for all future losses stemming from the injury or breach

Consequential Damages• Consequential damages are those that arise as a natural, proximate or

probable consequence of the tortious act or breach of contract. The are awarded distinct from and in addition to compensatory damages when it is determined that compensatory damages will not make the plaintiff sufficiently whole.

• BAR TIP: Be sure to differentiate between:

1) Compensatory Damages = money it will cost P to restore himself in tort or to reach the position he would have been in if the contract had been completed.

2) Consequential Damages = money the P has lost due to the tort or contract breach (lost income, lost profits, discomfort, annoyance, inconvenience etc)

Elements of Consequential Damages

1) The damages must arise naturally from the tortious conduct or breach of contract, AND

2) The damages were reasonably foreseeable

Nominal Damages

• Definition: Nominal Damages are used to vindicate a Plaintiffs right when (1) that right has been violated; (2) No loss is sustained; OR (3) the injury cannot be measured (it is too speculative)

Punitive Damages• For Torts only

• Used to punish and deter repetitive unlawful acts

• We need a “hook” to hang punitive damages on before we can seek them.

• The hooks you can use are:

1) Compensatory Damages

2) Consequential Damages

3) Nominal Damages

You will need to establish at least one of these to hang your punitive damages on.

Punitive Damages RULE - Due Process prohibits the imposition of grossly excessive punitive

damage awards against tortfeasors. To determine if damages are grossly excessive, courts balance:

1) The degree of reprehensibility of the conduct

2) The disparity between the harm suffered and the amount awarded, AND

3) The amount of damages commonly awarded for comparable conduct

Liquidated Damages• Liquidated means the amount of damages can

be approximated, the parties have either agreed on an amount or the amount is certain

• Unliquidated means that there is some disagreement on the amount of damages the amount cannot be determined

Liquidated Damages• Definition: Liquidated damages are damages

specifically provided for in the contract between the parties

Contract Liquidated Damages

• Rule: Parties to a contract are generally permitted to agree on the amount of damages for the manner in which damages will be recovered in the event of breach by either party. A liquidated damages clause will be upheld if:

1) The amount agreed upon is a reasonable estimate of the amount required to compensate for the loss, AND

2) Damages were difficult to ascertain at the time of contract formation

3) The Amount stated in the liquidated damages clause must be compensatory in nature and not punitive.

Review: Legal Restitution Damages• Definition: Legal restitution damages are

based on the value of the benefit conferred on the defendant.

• We want to “disgorge” the money from the defendnat

Review: Legal Restitution Damages -Rule: Legal Restitutionary damages can be measured by:

1) The reasonable value of the benefit conferred, OR

2) the extent to which the Defendants property value was increased or other interests advanced

NOTE:

1) A plaintiff cannot be awarded both compensatory AND restitutionary damages

2) Restitutionary damages are not available when the claim is only for partial damages

BAR TIP: if the plaintiff has suffered an injury AND the defendant has received a benefit, discuss both compensatory and restitutionary remedies but only award the plaintiff one remedy.

Replevin

• Definition: Replevin is the restitutionary remedy that allows the plaintiff to recover possession of “personal property”

Replevin

RULE: Replevin is available when the Plaintiff establishes:

1) He had the legal right to the possession of the property and

2) The defendant is wrongfully withholding the property

NOTE: The plaintiff can recover the personal property before trial IF:

1) A preliminary judicial hearing is held AND

2) The plaintiff posts a bond

3) The plaintiff may also request monetary damages for the loss of use while the property was wrongfully withheld (loss of money, rental value etc)

Ejectment

• Definition: Ejectment is a legal restitutionary remedy that allows a plaintiff to recover possession of real property

Ejectment - RuleRule: Ejectment is available when the plaintiff establishes:

1) She had the legal right to possession of the property, AND

2) The Defendant is wrongfully in possession of the property

3) Self Abatement is not allowed!

4) The execution of a writ of ejectment must be carried out by the sheriff.

5) Again, discuss the monetary damages as well if an ejectment issue arises because the plaintiff may have a loss of rental value, loss of profit, etc..

Contracts: QUASI CONTRACT

• Definition: Quasi Contract relief may be available if a contract fails and results in the unjust enrichment of one of the parties.

Contracts: Quasi Contract Rule

Rule: Quasi contractual relief will be available when the plaintiff can show that:

1) One party has conferred a benefit on the other

2) The conferring party has a reasonable expectation of being compensated

3) Benefits were conferred at the express or implied request of the other person AND

4) Unjust enrichment would result if the D was allowed to retain the benefits

Equitable Remedies

Constructive Trust:Definition: A constructive trust is an equitable restitutionary remedy used to return

legal title to property in which the defendant has improperly acquired the title to the proper owner

Rule: a court may create a constructive trust over the property and declare the defendant as trustee with the sole duty being to return the legal title to the rightful owner. A constructive trust is generally available only if a legal remedy would be inadequate

Note: If the defendant has transferred title to the plaintiffs property to a third person, a constructive trust can still be imposed over the property unless the transferee was a bona fide purchaser

Equitable LienDefinition: An equitable lien is an equitable restitutionary remedy used to reimburse

the plaintiff for a benefit conferred on the Defendants property, or a benefit gained by the defendant through improper taking of use of the plaintiffs property

Rule: A court may provide the plaintiff with a security interest in property owned by the defendant to reimburse the plaintiff for a benefit conferred on the Defendant. An equitable lien is generally available only if a legal remedy would be inadequate. (D is insolvent - Bankruptcy issues)

Note: Since this is a security interest, P may foreclose the lien by forcing a sale of the property and applying the proceeds to the payment of the claim if the defendant does not pay.

Note: The purpose of this is to provide P with a security interest in D’s property. We want to do this when D has a potential of filing for bankruptcy and getting out of paying his debts all together. When D tries to sell, liquidate or file for bankruptcy P will be paid the amount of the debt or part of it based on the actions of D.

Tort – Mandatory Injunction

• Definition: A mandatory injunction is a court order that compels a party to perform an affirmative act

• Example: the court orders joe criminal to pick up trash along the highways for one week

Tort – prohibitory injunction

• AKA – negative injunction

• A court order to prevent or stop the D from doing an act

Tort Injunctive Relief

Definition: Injunctive relief is an equitable coercive remedy in which the D is ordered to engage in or refrain from doing a specific act.

• Injunctions are enforceable through the courts contempt power

• Two types of injunctions

1) Temporary restraining order (TRO)

2) Permanent Injunctive relief

Tort: Temporary Restraining Order

Definition: a TRO is used pending a hearing to determine whether a temporary injunction should be used

Rule: To obtain a TRO the P must show that:

1) Immediate and irreparable injury will occur without the order

2) No adequate remedy at law exists

3) The plaintiff is likely to succeed on the merits of the case

4) Issuance of the order will not cause substantial harm to the public AND

5) The harm to the plaintiff if the TRO is denied outweighs the harm to the defendant if granted (balancing of hardships)

Notes:

1) A hearing for a TRO can proceed ex parte

2) TRO is limited to 10 days

3) P must provide notice to D or make a good effort

4) P must usually post a bond

Tort - Temporary Injunction

• A temporary injunction is issued at the beginning of litigation and is intended to prevent irreparable harm from occurring before the merits of a suit are decided

• This can also be called a preliminary injunction so that you don’t confuse it with a tro.

Tort – Temporary Injunction/preliminary

Rule: To obtain a Temporary injunction the P must show that:

1) Immediate and irreparable injury will occur without the order

2) No adequate remedy at law exists

3) The plaintiff is likely to succeed on the merits of the case

4) Issuance of the order will not cause substantial harm to the public AND

5) The harm to the plaintiff if the TRO is denied outweighs the harm to the defendant if granted (balancing of hardships)

Notes:

1) Adversarial hearings are required

2) One issued a temporary injunction is in place throughout the trial

3) Cannot exceed 3 years

4) P must post a bond

How do courts balance hardships of the restraining orders?

• Courts often balance out the hardships on what is called a “SLIDING SCALE”

• The showing of hardships required by the party seeking the injunction is inversely related to the strength on the merits of that party’s claims.

• In other words: the plaintiffs hardship MUST strongly outweigh the hardship of the defendant.

See the next slide for an example

Balancing exampleFor example, think of this case scenario: In 1980 P moves into the housing complex, purchases a home knowing that Joe Blast is

the towns mining company and the major source of employment for the town. P also knows that occasionally, there is some blasting going on for mining purposes. P lives in the community for 5 years when P becomes crippled from a non related accident and is advised by the doctor to put in a swimming pool for therapy. P does this and in the year 2000 Joe Blast shoots off some explosives, P suddenly has cracks in his pool and sues Joe Blast for damages because his property value went down and he cannot use his pool.

1. Is there a prima facie case?

2. What are the damages?

3. What are the remedies?

We balance the hardships by assessing “Nuisance”, Conversion, Trespass to chattel to look for damages and establish the prima facie case. Then we look to remedies and try to see what can be recovered, HOWEVER In this process, we need to view this like the court would view it:

1. Burden to P

damage to pool

Public Nuisance

Can’t do his therapy as required by the doctor

property damage and devaluation

2. Burden to Joe Blast

1. He is the main source of employment in the town

2. P knew about the blasting and moved into the Nuisance

3. P waited until the 11th hour to make a complaint when the blasting never affected him before

4. The damage to the public would be much greater if Joe Blast was shut down than it would if they kept him open

TORT- permanent injunction• A permanent injunction is issued after a full

hearing on the merits (or upon consent or default of the opposing authority), and is intended to permanently prohibit an act from occurring or to compel an act be carried out until a dispute is resolved.

Tort: Permanent Injunction

Rule: To obtain a permanent injunction, the P must demonstrate:

1) No adequate remedy at law exists

2) The plaintiffs property or protectable interest is at stake

3) Enforcement of the injunction is feasible AND

4) The harm to the plaintiff if the injunction is denied outweighs the harm to the defendant if the injunction is granted

property right

• Traditionally: equity would grant relief only when a property right was involved (meaning real property)

• Modernly: equity will grant relief when ANY protectable interest is at stake

personal property or real property

Tort: Feasibility

• How is the feasibility of enforcing a mandatory injunction determined?

Answer: By

• The difficulties inherent in court supervision over the D’s actions AND

• Court concerns with ensuring the D’s compliance with the order

• Ask yourself, “could a court really do that?” Would a Negative injunction be better??

• Most courts favor a negative injunction because it is easier to enforce.

TORT: Feasibility part 2

• How is the feasibility of enforcing a prohibitory injunction determined

Answer: when a plaintiff seeks negative injunctive relief, no enforcement problem exists- in fact the courts favor this type of injunction.

The courts would rather STOP someone from doing something than to have to somehow monitor the quality of work performance, supervise and document the defendants act. Really the court has no way of knowing if a person is really doing something or not…they have less control over it and thus, would rather put a “stop” to something than to have something done –

Does this makes sense???

Tort: Balancing of hardship

• How does the court balance hardships when determining whether to grant an injunction? (notice we are not specifying the type of injunction here)

See the next slide please

ANSWER

Rule: the courts will balance the hardship the plaintiff will suffer if the injunction is not issued against the hardship the defendant will endure if the injunction is issued. In balancing the hardships, courts will consider:

1) The disparity between the potential hardship suffered by each party from the issuance/non –issuance of the injunction

2) The hardship to the public caused by the injunctions, AND

3) The defendants level of culpability

TORT: What must be included in a court order for injunction or TRO ?

1) Order must state the reason for the injunction or TRO’s issuance

2) Be specific in its terms

3) Describe in reasonable detail the act ordered to be restrained

Tort: Who is bound by an injunction?

Parties in privity

Employees and agents of the parties acting with notice of the order, AND

Third parties acting with notice of the order

Tort: How are injunctions enforced

Rule: Injunctions are enforced through the courts power of contempt

Civil contempt = fining the party and or imprisonment until the party complies

Criminal Contempt = fining the party and or imprisoning the party

Alternatives to an injunction

Legal Remedies!!!

**REMEMBER TO ALWAYS USE YOUR LEGAL REMEDIES FIRST**************

1) Money Damages

2) Replevin

3) Ejectment

Tort: When are money damages inadequate?

• When they are too speculative

• When the defendant is insolvent

• When the act has only been threatened

• Irreparable injury will occur OR

• Unique property is at stake

Tort: when will replevin be inadequate?

• When the property cannot be found or indentified OR

• When the defendant destroys or threatens to destroy chattel

TORT: when will ejectment be inadequate??

• Rule: ejectment is inadequate if the sheriff refuses to enforce an ejectment order

Contracts: RESCISSION

• Definition: an equitable remedy through which the original contract is voided and rescinded

• Basically both parties agree to dump the contract and get rid of it – it no longer exists and no party is bound to it

Contract Rescission part 2

– Rule: A contract may be rescinded if the requesting party can prove:

1) Mistake

a) Mutual Mistake as to a material fact = Rescission is usually granted

b) As to a collateral fact = Rescission is usually denied

c) Unilateral Mistake = usually denied

A) Exception = if the non mistaken person knows or should have known of the mistake, Rescission will likely be granted

1) Misrepresentation – granted if the plaintiff relied on the misrepresentation

2) Coercion

3) Undue influence

4) Lack of capacity

5) Failure of consideration

6) Illegality

Contract Reformation

• Definition: Reformation is an equitable remedy through which the court alters a written agreement between parties to conform to the parties original understanding

• You may know this from contracts as “Blue Penciling”

Contract Reformation

• Rule: a contract may be reformed if the plaintiff can establish:

1) A valid contract exists

2) Grounds for reformation exist:

a. Mutual mistake

b. Unilateral mistake ONLY where the non mistaken party KNOWS of the mistake

Contract Specific Performance

• Definition: specific performance is an equitable coercive remedy through which the court requires the parties to perform according to the terms of a contract

Contracts Specific Performance part 2

RULE: P must prove:

1) The contract is valid

2) Contract terms must be certain and definite

3) The requesting party has performed according to the contractual conditions

4) No legal remedy is available

5) Mutuality of remedy

Mutuality of Remedy - contracts

• Definition: The mutuality of remedy refers to the availability of the requested remedy to both parties of the contract

• Rule: To be granted specific performance, the requesting party must demonstrate that the remedy it is requesting would be available to the opposing party

Equitable Defenses

• Unclean hands

• Unconscionability

• Laches

• Estoppel

• Sale to a bona fide purchaser

References

• Regha surya rao- Law of Tort• Ratan Lal & Dhiraj Law-The Law of Torts (1997) Universal, Delhi

law book 1.https://lh5.ggpht.com/2xcggcE4PZ7CPrXUYswML2x6PLVzWUyR1kcjz4Q6VALM5-7PlGZnt5lt5qxqOS6PFt5w=s131