Equities and Remedies Outline

Equities and Remedies – Professor Henke – Summer 2012

Introduction

Substitution v. Specific Relief

Substitution

i. Ex.) Compensatory damages after losing your hand

Specific Relief

i. Ex.) Injunction against a toxic dump from coming in

Rightful Position Standard

The position that P rightfully would have been in but for the D’s wrong

Compensatory Damages

Definition

Substitution remedy to restore P to rightful position recognizing that $ DOES NOT return P to original position

Aggregate Litigation (Mass Tort/Class Action)

Hatahley

i. 8 families had horses taken and killed by government. Determined government was liable. Problem with damages:

ii. Replacement Value of horses/burros ($395/animal)

1. Should have used objective FMV based upon horse age.

iii. Families’ Emotional Distress ($3,500/family)

1. No evidence except crying and being upset, no experts.

iv. Consequential Damages From Losing Livestock (Gave Difference)

1. No proximate causeàno connection between losing horses and losing sheep and goats.

One Satisfaction Rule

i. P CAN’T recover same damages more than one time

ii. Total of what all joint tortfeasors pay satisfies claim. (Numerous judgments)

Pro-Rata Damages-MAJORITY

i. D in case pays % D is liable for. Gets % credit for claims settle

ii. Ex.) $100k judgment, D has verdict against for $75k but settled for $25k

Pro-Tanto Damages

i. $ for $ credit from settled parties

ii. Ex.) $25k settlement, each party is 50/50 at fault. D gets $25k credit, only has to pay $75k of $100k total.

Bartlett

i. B slams on brakes, G rear ends her, D drives off not found.

ii. B gets $100k settlement, D liable for 70%, G only liable for 30%

Property

In re September 11th

i. S sues for $2.85B lost rent profits on WTC and $16.2B replacement costs. Not a special purpose property (bidding war) would only get $2.85B by lesser of two rule.

ii. Palsgraf Rule-damages must be direct, foreseeable and proximate cause of plaintiff’s injury.

“Lesser Of Two” Rule

i. P with property damage may recover lesser of decrease in property’s FMV OR property’s replacement cost.

Special Purpose Property Exception

i. Property that is so unique that there is no functioning market to determine property’s FMV

ii. Replacement Cost Test

1. Improvement is unique/specially built for purpose

2. A specific use for which improvement is designed/use

3. No market/sales of property for that use

4. Appropriate improvement at time of taking and must be economically feasible/reasonably expected to be replaced

5th Amendment Eminent Domain Rule

i. Taking private property is entitled to just compensation (FMV)

Trinity Church

i. TC had 24% damage, JH increased it to 65% was responsible for difference 39% of $2m. No functioning market, was special purpose property. Got replacement cost.

ii. Rule-only liable for damaged caused, not total or future damages

Fluctuating Value Rule

i. Must define time of loss to assess damages

ii. Decatur

1. D paid C to spray chemicals. Chemicals kill crops. Sold remaining crops next spring for $3 more. Only entitled to loss at time of harvest ($3 less than what received)

Torts

General Damages

i. Subjective/non-economic

ii. Ex.) Pain and suffering, emotional distress, hedonic/quality of life

iii. Capped by tort reform

Per Diem Damages

i. Definition

1. General damages quantified on per day basis

ii. Debus

1. Had pallet of food fall on her. Calculated pain and suffering on per diem basis. Jury awarded damages based on this.

Special Damages

i. Objective/economic/paperwork

ii. Ex.) Medical/hospital bills, lost wages

iii. Immune from tort reform

Contracts

General Damages

i. Definition

1. Loss of expectancy/benefit of bargain

2. Direct loss from breach

ii. Neri

1. N wanted boat,