Outline
Sunday, November 15, 2009
1:33 PM
1. Introductory Material
a. Substitutionary v. Specific relief
i. The classic form of substitutionary relief – giving someone money for P&S in tort, breach of K, beneficiary gets money in wrongful death
ii. In contrast with specific relief – injunction – enjoin someone from doing something
b. Legal v. Equitable Remedies
i. Legal
1. Results in some monetary award
ii. Equitable
1. Typically involves injunction, declatory judgment, and some forms of restitution are equitable
c. The Rightful Position
i. Compensatory damages should be thought of as a substitutionary remedy by which we attempt to restore the plaintiff to their rightful position
d. Types of Remedies
i. Damages
1. Compensatory Damages
a. This remedy provides an award of money to compensate for loss or injury. The function of tort awards is to make the plaintiff whole; contract damages compensate for loss and also operate as a protection of the plaintiff’s expectation interest
2. Nominal Damages
a. Nominal damages is an award of money granted when the plaintiff’s right has been violated, but no loss is sustained, or the extent of injury cannot be measured
3. Punitive Damages
a. Punitive damages provide an award of money in addition to compensatory damages to punish the defendant for willful, wanton, or malicious conduct and to deter such conduct
ii. Restitution
1. Restitution restores to the plaintiff any benefit that the defendant may have gained from his misconduct (i.e., unjust enrichment)
a. Restitution is usually substitutionary, provifing monetary recovery measured by unjust gain (e.g., quasi-contract, constructive trust, equitable lien, or subrogation), although it may also be specific, providing recovery of a precise thing (e.g., replevin, ejectment)
iii. Specific Relief
1. Specific Relief provides the performance promised, rather than its money equivalent
iv. Preventive Relief
1. With preventive relief, the defendant is enjoined from engaging in activities infringing on the plaintiff’s interests
v. Declatory Relief
1. Declatory relief conclusively determines the rights of the parties without awarding any additional relief
e. Classified by Historical Origins
i. Historically, remedies have been classified as either legal or equitable
1. Legal Remedies
a. Legal remedies developed from the common law, are usually substitutionary, and result in money judgments (damages). However, some legal remedies are restitutionary (e.g., quasi-contract, ejectment, replevin)
2. Equitable Remedies
a. Equitable remedies developed in the Court of Chancery and are usually specific, imposing personal duties on the defendant, either prohibiting him from committing certain acts or coercing appropriate conduct
b. Note
i. Equitable Remedies are appropriate only when legal remedies are inadequate
f. Imprecise Calculation – The Consequences
i. These classifications are of little consequence except when the unqualified term “damages” appears in statutes or documents.
2. Compensatory Damages
a. This remedy provides an award of money to compensate for loss or injury. The function of tort awards is to make the plaintiff whole; contract damages compensate for loss and also operate as a protection of the plaintiff’s expectation interest
b. Problems in Calculation
i. Aggregate Litigation; United States v. Hatahley
1. “The 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. The Court found that the trial judge incorrectly assigned the value of the horses and burros based on their particular market value to the plaintiffs rather than based on their general market value
i. The trial judge put a $350 per horse and burro for the damages awarded to the plaintiff
ii. Emotional distress damages – the trial court put a per person award for damages, each person who had their animal taken got a damages award
iii. Consequential damages component –
from the total award of damages and apportion that between the non-settling defendants
2. Takings Cases: Fifty Acres
a. The 5th Amendment and “just compensation”
i. The key is Fair Market Value
1. Nothing more, nothing less
ii. No recovery for consequential damages
1. The government can condemn private property for public use as long as the condemned is given just compensation
b. Generally, no subjective loss or compensation for sentimental value
c. Exception: Note 5, pg. 23
i. If you own fifty acres and the gov’t condemns 25 and the condemnation of the 25 leads to a diminution of the value of your land – that may lead to a compensatory damages award
3. Special Purpose/Unique Property: Trinity Church
a. Compensatory Damages are not always an easy, exact calculation
b. When there are no accepted values, that is when lawyers have to get creative
i. General Rule for measuring property damage is DIMINUTION IN MARKET VALUE
ii. Exception: “Special Purpose Property”
1. No generally active market from which the diminution in market value may be determined
1. The general rule produces injustice
2. EX: Property of non-profit, charitable, or religious organizations, there will
3. Methods used:
1. Cost to reproduce minus depreciation
2. Replacement or restoration costs
4. Reasonableness standard:
1. Expenditures to restore or replace
2. Replacement/reconstruction reasonable in light of the damage inflicted
3. Depreciated cost of reconstruction
c. An injured party is NOT required to perform repairs in order to recover for diminution in market value of its property
d. Note 3; pg. 31
