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South Texas College of Law Houston
Estlinbaum, Craig

Judge Craig Estlinbaum – Damages – Fall 2010
Should there be a civil remedy?
Strong Interest Requirement: “the law disregards trifles” is applied where even though a legal right has been violated, the injury to P and to the public is slight.
Ex-consumer fraud: like with opening mail that says you win a watch.
Harris v. Time Inc.
De minimus non curat lex: “the law disregards trifle”
Want a correlation between the remedy and effort
If we are going to have a civil justice system who should have access?
3 Guidelines:
No trivial damages:  If damages are “de minimus” the court will not allow even a valid cause of action to continue.
No immeasurable damages: Case has to request loss that we can measure/contemplate
Exceptions for public policy: Even if the recovery is trivial or meaningless we may uphold it b/c of social policy, vindicates, or remedies a larger harm
Should there be a private right to a remedy?
Can have an express right of remedy
Can have an implied right of remedy
Tests allows courts to make/measure value judgments
Judicial resource limitation: courts must consider to a great extent the time and effort it will take to administer and enforce the remedy.
Is a Judicially Imposed Remedy Feasible: cause of action will arise when a court can construct a means for insuring P is adequately compensated (must be some sort of standard for a jury to use).
Ex-wrongful life: general damages aren’t available because it’s too difficult to determine the loss between living and not living (but special damages are).
Turpin v. Sortini
The law only allows damages that are reasonably ascertainable.
Wrongful birth: claim by the parents for child being born when the child would not have been born, but for negligence
Wrongful life: claim by the child for existing in a less than perfect state when they wouldn’t have been born, but for negligence
Pain and suffering denied for wrongful life because:
It is simply impossible to determine in any rational way whether being born is an injury compared to not being born.
This is not a question that the courts can answer.
Even if we could, it would be impossible to assess the damages in any fair manner
Extraordinary expenses, however, are fine
There is no reason to allow the parents to sue for these damages but not allow the child to do the same
TX stance?
TX recognizes a claim for wrongful birth but NOT wrongful life
Value Judgments in Determining the Form of Remedy: where there is a legal right, there is also a legal remedy by suit, whenever that right is invaded.
Ex-writ of mandamus: writ of mandamus is proper in denial of judgeship because it’s too difficult to measure the loss in not getting the job.
What form should the remedy take?
Remedies can take several forms
Privately determined
Person elects not to pursue a grievance
Aggrieved party resorts to self-help and other party acquiesces
Negotiated resolution
Designed by legislative or judicial action
Declaration of rights an obligations
Damages to the aggrieved person
Judicial coercion of the offending party
Common remedial mechanisms
Agreed Resolution
Parties agree to resolve without litigation
Many benefits to this
Expenses of litigation are removed
Tends to lend itself to an optimum solution
A trusted disinterested third party mediates between the parties in creating a mutually beneficial resolution
Mini trials before the mediator are used in complex cases
Some courts requires mediation when the amount in controversy is small, others suggest but do not require
A matter of contract that requires the parties to settle the dispute before an arbitrator rather than seeking litigation.
Arbitration clauses frequently appear in contracts.
Handling the dispute by self action rather than negotiated or court action
Generally meets with resistance from the opposed party
Usually occurs in auto or furniture repossession.
It is a practical remedy only where force is not required
Declaratory Relief
A judgment by the court to prevent waste when there is a future injury anticipated or the rights and responsibilities of the involved parties is questioned.
Limited by the requirements of “case in controversy”
Allows parties to know the outcome of a specific action before taking it.
Courts don’t have to entertain such actions (discretionary standard)
Most common form of remedy
A judicially applies compensation for loss by a party.
Can be partially determined by agreement or contract, as well as by statute and case law.
D may have realized a gain out of wrongful conduct or may have gained at the P’s expense in a transaction which is not legally wrongful but nevertheless under circumstances which counsel that the gain not be retained
P may recover D’s enrichment in restitution
Specific Relief
A specific award, causing a D to either act or refrain from acting in a certain way, based on the non-compensable nature of certain injuries
Most common forms are injunctions and specific performance
Enforceable through the judicial power of contempt and court may fine or imprison the D who violates the order
Should There Be a Private Remedy: if Congress evidences an intent to occupy the given field, any state law falling within that field is preempted.
Note-clear intent: Congress must make it clear that it intends to preempt an area of law (courts aren’t in favor of congressional preemption).
Silkwood v. Kerr-McGee
Decision made b/c under federal statute there is NO remedy so they create one under state law
2 types of preemption
express: statute expressly preempts
conflict: not possible to abide by the fed and state law, feds win
Implying a Private Remedy in the State and Federal Courts: private damages actions are available where persons had adequate notice that they could be liable for the conduct at issue.
Implying a private cause of action based on federal statute:
Test: private right of action in state courts will be implied based on a federal statute if:
P is member of class for whose benefit statute was enacted;
It is consistent with underlying purposes of statute to imply private cause of action (key in recent years and courts are less likely to imply a private right).
P’s injury is one that statute was designed to prevent; and
It is necessary to provide adequate remedy for violation

ask: who is going to bear the risk
Nominal damages: award of money granted when P’s right has been violated, but no loss sustained, or the extent of injury cannot be measured
Punitive damages: award of money in addition to compensatory damages to punish D for willful, wanton, or malicious conduct and to deter or coerce certain conduct.
Consequential Damages Limitation-Contract Cases (Hadley v. Baxendale): special damages for breach of contract are limited to those arising naturally (objective) from the breach or within the reasonable contemplation (subjective) of the parties when the contract was made.
General Damages
Damages that naturally flow from the K
Can be reliance, expectation, restitution
Special Damages
Damages that do not naturally flow from the K
In TX do not have to plead general damages but have to plead special damages
Foreseeability of Special Damages:
Gives incentive to fully disclose
Allows a more accurate pricing
Default Rule
TX has the Hadley rule as a default so that people will disclose special risk so that it can become part of the problem
Additional Requirement-Tacit Agreement Test: some courts also require P to prove that D have “tacitly agreed” to assume liability for such loss.
Note-UCC: this test has been rejected where goods are concerned.
Spang v. Fort Pitt
Rule: a party is liable for all the direct damages which both parties to the contract would have contemplated as flowing from its breach, if at the time they entered into it they had bestowed proper attention upon the subject, and have been fully informed of the facts
Reliance: not available – did not change his position
Expectation: Yes, the balance on performance, balance of the breach
Why is this different from HADLEY? This was an industry standard and did not have to disclose
General or Special? General naturally flow from the K
Can you have special damages that are expectation? Yes, you could prove that they should have known
Mental Anguish: damages for mental anguish may not be recovered in an action for breach of contract.
Exception: allowed where serious emotional distress is a particularly likely result of a breach based on contracts with common carriers, innkeepers, or funeral homes.
Proximate Cause Limitation-Tort Cases: injured person is entitled to be compensated for all injuries proximately caused by the wrongdoer’s misconduct (even if not foreseeable).
“Thin skull” doctrine: negligent D is liable even though the injury is increased by P’s particular condition.