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University of Florida School of Law
Nance, Jason P.

Remedies – Nance – Spring 15

Chapter 1- Intro

1. The Role of Remedies

a. Defined

i. A remedy is anything a court can do for a litigant who has been wronged or is about to be wronged

b. 2 most common remedies

i. Damages – judgments that Ps are entitled to collected sums of money from Ds

ii. Injunctions- orders to Ds to refrain from their wrongful conduct or undo its consequences

c. Remedies law falls between procedure and primary substantive rights

i. Remedies give meaning to obligations imposed by the rest of the substantive law

ii. Type of remedy you are seeking determines how about you try the case

iii. O discovers N claims the trees in O’s forest. Remedies law doesn’t determine who owns the land or theft/trespass, but what happens when there is trespass/theft

2. Classifying Remedies – Types

a. Compensatory remedies

i. Designed to compensate Ps for harm they have suffered

ii. Compensatory damages – a sum of money designed to make P as well off as he would have been if he never had been wronged

b. Preventative remedies

i. Designed to prevent harm before it happens, so compensation never arises

ii. 2 forms

1. Coercive remedies

a. Injunction – court orders X to do or refrain from doing a specific thing

i. Specific performance decree- specialized injunction ordering X to perform contract

b. If D violates court order, they are guilty of contempt

2. Declaratory remedies

a. Authoritatively resolves disputes about the parties’ rights but they do not end in a personal command to D

b. These prevent harm to the litigants by resolving uncertainty about their rights before either side is harmed by erroneously relying on its own view of the matter

c. Restitutionary remedies

i. Designed to restore to P all that D gained at Ps expense

ii. Sometimes identical to compensation

d. Punitive remedies

i. Designed to punish wrongdoers

ii. Some statutes provides a minimum recovery in excess of actual damages

e. Ancillary remedies

i. Designed in aid of other remedies

ii. Costs/attorney’s fees, contempt, collection of judgment

iii. Means of enforcing the primary remedy against a recalcitrant D or securing the possibility of later enforcement when recalcitrant is expected

3. 2 other ways to categorize – Substitutionary and Specific Remedies

a. Substitutionary

i. P suffers harm and receives a sum of money

ii. Compensatory damages, attorneys fees, punitive damages

b. Specific

i. Seeks to void the above exchange

ii. Prevents harm instead of compensating for it

iii. Injunctions, specific performance of contracts, restitution

4. Legal and Equitable Remedies

a. Legal

i. Compensatory and punitive damages

b. Equitable

i. Injunctions and specific performance decrees

Chapter 2 – Paying for Harm: Compensatory Damages

1. The Basic Principle – Restoring P to His Rightful Position

a. Idea is to award P compensatory damages that puts the P back in the position she would have been in but for the Ds wrong.

b. Damages are compensation in money for the loss/detriment caused by the wrongful act of another

i. The act may be wrongful because it violates a prior promise (contract) or because it violates PP (tort)

ii. In theory, the amount of money awarded should equal the loss so that it would be as though the loss never occurred

c. US v Hatahley 10th Circuit 1958

i. Facts. Ps are Indians who live on lands owned by the US. The US committed the TORT of trespass/conversion by taking the Indian’s horses and selling them. The Indians horses were specifically trained to survive on the arid climate. Therefore they had a particular value to the Indians (more than market value)

ii. DC entered judgment against US for 186,017.50.

1. Each horse was given a value of 395, each P was given 3,500 for pain and suffering, damages given for half of value of diminution livestock

iii. Issue. What is appropriate remedy for

1. Special horses

2. Loss of use – Since they were not able to use the horses, the other herds were depleted because they used the horses to maintain them

3. Loss of use – transportation for medical/religious purposes

4. Pain and suffering

iv. Court says the trial court applied an erroneous rule in arriving at amount of damages

1. Fundamental principle of damages is to restore the injured party, as nearly as possible, to the position he would have been in had it not been for the wrong of the other party

a. Restore to rightful position

2. Damages may only be given if the D was the proximate cause of the loss and damages can be proved with a reasonable degree of certainty

3. Ps did not prove the replacement cost of the horses. They said they were unique and could not be replaced. TC gave $395 per horse

a. AC- TC should have looked to similar animals for sale in area, parties and witnesses to determine cost

4. TC also had to deal with the fact that some cattle would have died on their own. TC arbitrarily gave everyone 50% of losses in cattle

a. AC said this is too imprecise. Must have basis for this number – more individualized

5. Harder to put a price on problems with travel and emotional harm because it is more attenuated

6. TC awarded 3500 for pain and suffering

a. No physical pain and suffering. Only evidence that Ps mourned the loss for a while

b. Court rules that the loss was a community loss proximately caused by taking the horses therefore the 3500 is fine

v. Takeaway

1. Be creative in all ways the P could have been harmed

a. Loss of use of horses

i. To Drs

ii. To work

iii. To church

d. The one satisfaction rule

i. P cannot recover the same item of damage more than once

1. P recovered for fraud, breach of k, and violation of states anti deceptive act, for failure to deliver SUV as promised. Court held P could only recover under 1 theory

2. If P collects a judgment from 1 D, he cannot collect it again from another

2. Value as the measure of the rightful position

a. 3 ways to value rightful position

i. Look to market value

1. If only partially injured, use diminution of market value

2. If completely destroyed, use whole market value

3. One way to get at how much they are worth

4. Hatahley looked to how much the animals traded for

5. Usually shown by

a. Price quotes in market

b. Estimates of experts

c. Estimate of owner

6. Many things have market value even though they are irreplaceable

a. If D destroys a 1 of a kind painting, damages will be based on the paintings value in the art market

b. Even though he can’t replace the item, the cash value is the as close to the rightful position as possible

c. Doesn’t matter if P would not have sold at that price

7. There is often a disparity between value and replacement cost (even though in theory they should be equal)

a. Real property- sometimes features to the owner cannot be rebuilt at prices the market is willing to pay (owner likes feature more than what the market price of property is)

b. Personal property – students old reliable car gets totaled (court says its worth 1k but repairs would be 10k). Court would rule that her damages are 1k because that is what she lost.

8. Lemon effect

a. Buyers assume the worst about used goods, so they pay low prices, so sellers wont sell used goods of high quality, so the used goods on the market tend

ally sold.

2. This doesn’t fall within the special property exception because the buildings had a determinable and verifiable value

a. The test is not whether there are/were special/unique aspects to the property, but whether the use of the property, at the time of the tort, is a unique use, suitable only to the owner, and without a fair market value

b. Here, there is a market that establishes prices for these buildings/offices

c. Therefore P doesn’t get the replacement cost

3. The lease terms also do not allow larger recovery

a. Contract said P can recover cost required to “rebuild, restore, repair, and replace”

b. Under Palsgraff – Tortfeasor is responsible only for injuries that are the direct, natural, and proximate result of the tortfeasor’s actions, and that the parties would have foreseen, contemplated, or expected.

c. The proximate cause of the alleged negligence (if proven at trial) is the destruction of the towers

vii. Does this put P back into rightful position? – not really

1. Fair market value isn’t enough to pay for replacement

2. No compensation for loss of use like previous case

3. Its going to take a while to rebuild the towers

viii. Takeaway

1. How do you value something

a. Expert witnesses

2. Court relies on

a. Market value

b. Replacement cost or

i. Tough calculation – present value and value of interests

c. Rental value

3. These are supposed to be equal

a. Would happen in perfect world with market efficiencies

4. When there are differences in these values

a. Apply lesser of 2

b. Otherwise P might be put into a better position

i. Re buy the item and pocket the rest

d. Trinity Church v John Hancock Mutual Life Ins Co.

i. Facts. Trinity Church is historic landmark and FUNCTIONING church. During construction of Hancock tower, the foundation of the church was undermined. Before construction there was 26% cracked damage. After there was 65%. 39% difference. Although the % has increased, the structure is still standing and people are still coming etc

ii. Issue. Is there a loss? If so, how to compensate the church?

iii. Look to ways to measure

1. Market value?

a. No, the parties agreed it was specialty property

b. No readily identifiable market value

c. Not many potential buyers for this

2. Rental value?

a. Prob hard to calculate

3. Replacement costs?

a. Yes

4. Look to replacement costs

a. Look at cost of materials and labor

b. But realistically they wont replace it because its still functioning

c. When it does fall, they would rebuild but they might want it a little different

d. Point is that its all a little fictional

e. They come up with reconstruction cost at 1.7 million. Multiplied it by 39% (difference in crack damage before and after)

f. Crazy case because they took the money but held onto it for a while since the church is still functional

g. Interesting way to come up with this type of valuation