Remedies Outline

Remedies for Allen, Summer 2012

I COMPENSATORY DAMAGES:

· Stemming from Property Loss

· From the Contract

· Personal Injury

· Constitutional Harm

Central Principle

· Rightful Position Principle

· Compesnatory damges will be the amount of money that puts the plaintiff in the position it would have been, but for the defendants wrong

· This leaves us with the question of how much $ will it take to get to that rightful position

PROPERTY LOSS

· Doubly Substitutionary

· Comp. damages are often called dbl subst. because something else is coming back in return and someone else is determining the value

I.e your horse is murdered… You are not getting that exact horse back (you will likely get $) and it is the court who ultimately values it

· Valuation

· To determine the value, we need to determine all of the harm that has happened

Loss of property / prop. damage

Profit/ use of that property

Pain/ suffering

· This may include emotional/ physical damages

Attorneys Fees— ARE NOT RECOVERABLE (just the American Way)

· Direct v Consequential

· DIRECT (general) elements of damage are clear, it is what has been taking away

These are INEVITABLE based on the wrong that has occurred

Occur almost immediately at time of wrong

Are the capital interest

· CONSEQUENTIAL (special) damages wont necessarily happen, but may happen

Are not inevitable

Generally happen later on

Normally an interest in income

i.e. emotional damages are not certain to stem from something, but may thus are ‘consequential damages’

CAN BE LIMITED IN K CASES

· Market Damages

· The law loves market damages rule

· When the wrong INVOLVES PROPERTY, the rule is MARKET DAMAGES (aka what a willing buyer would pay a willing seller in a well functioning market)

· Things to consider when determining the market

What proof is needed (normally will need experts)

What is the relevant geographic market

At what point in time do we look at the market (securities and crops prices can rise and fall greatly, so the date we use for valuation is key)

· We don’t want a plaintiff gambling w/ the def’s money, playing the market

· IN FLORIDA– the highest price between the time of the wrong and trial is used

What are the add-ons

· Think of what was added to this piece of property (i.e. special training of the horses in the Hatali case or Perry the platypus)

What is the relevant market

· If a guy buys a barge to use as a dry dock– is the relvant market dry docks or barges…

· This is an argument to make– you want the relevant market to be whatever will value the property more (or less depending what side you are on)

· Lemon Effect– the market, in regards to used consumer goods sometimes gets skewed… often times a seller will know more about a product than a buyer (this leads to a market not being well functioning)…

§ In the used car market, the KBB is used to help correct the market price

§ In other cases, expert testimony can be used to correct it

· Problems with Market Damages:

1. What about depreciable property?

· Replacement cost of something will be higher than market value

2. What about when you have to replace a function, not a thing?

· Think of a city who has to maintain a landfill, but the govt takes it via eminent domain, the land was worth 100k but it will cost 300k for new land…. City lost twice (100k land they had had 300k for new place)…. Market damages will not account for this

· EXCEPTIONS TO MARKET DAMAGES

1. Special Use/ No Market

· A functioning church is the classic example of ‘special use’ land

· If this applies, your argument for how to valuate damages is up to you (you arent limited to replacement cost…. You get to be creative and see what the judge will accept)

2. Component Part

· When what was destroyed was part of a larger system, economic waste may result if we stick to market damages

· REPLACEMENT COST WILL BE THE VALUATION ( market value wont get us a new piece to replace what broke, so the larger system is shut down— this is WASTE)

· DO NOT USE AN EXCEPTION TO MARKET DAMAGES UNLESS IT WILL LEAD TO YOU GETTING MORE $$

· Always plea for interest (both pre and post judgment)

· Present Value

· From the Trinity Church Case… its always better to pay someone in the future than it is today

· In the Church case, the damage award was for damages caused from time of accident out to 150yrs

· Many times you can get the award reduced to present day value (the present day value will grow over time to its proper value)

· Judge didn’t reduce in trinity case beca