-
General Damages
Those natural and expected from the claim
-
Special or Consequential
often unique, based on individualized facts, must be proven specifically
-
Limitations on damages (elements)
- Causation
- Foreseeability
- Certainty
- Avoidable Consequences(mitigation)
- Agreed Remedies (liquidated Damages)
-
Tort Foreseeability
Proximate cause and limit on scope of duty
-
Contract Forseeability
Contemplation of the parties
-
Hadley's Core Principle
- Were the damages foreseeale at the time of contracting
- General are presumed, but special must be brought within the contemplation of the parties
-
Contemplation of the Parties
What tehy in fact know, or what they should have known if they had given it thought
-
Aspects of Certainty
- Fact of damages
- Amount of damages
-
Certainty in Contract (NC)
reasonable showing of the amount of damages will suffice
-
Avoidable Damages
Damages that could have been avoided by actions of a reasonable person are not recoverable
-
Loss of Chance formula for Valuation
Amount Recoverable is equal to the percent of chance multiplied by the total value of a complete recovery
-
Certainty (story parchment)
Where damage is certain result of the wrong, and uncertainty is respect to only the amount, then liberalize rule
-
Certainty (Kodak)
Defendant whos wrongful conduct rendered it difficult to ascertain the precise damages is not entitled to complain that they cannot be measured with precision
-
Duty to undergo Treatment
If proposed treatment could aggravate existing condition, or develop additional condition, or if prospect for improved health is slight there is no duty to undergo treatment
-
Liquidated Damages unenforceable unless (1st restatement)
- Amount fixed is a reasonable forecast of just compensation and
- the harm that is caused by the breach is one that is incapable or very difficult of estimation
-
Liquidated damages enforceable (2nd Rest.)
- only at an amoiunt which is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss
- a term fixing unreasonably large damages is unenforcable as it is a penalty
-
Punitive Damages
- conduct must be more than negligent, but not necessarily intentional
- Conscious or criminal indifference, wanton, malic, reckless disregard
-
Punitive Factor Test
- 1. degree of reprehensibility
- 2. Disparity between harm to plaintiff and amount of punitives (ratio)
- 3. Comparable Civil Penalties
-
Inadequacy
whether the remedy at law compares favorably with the remedy afforded by an equity court
-
Another Inadequacy quote
as complete, practical and efficient as the equitable remedy
-
Harsh Rule (unclean Hands)
any wrongdoing of Plaintif bars equitable Relief
-
Equitable Estoppel
Acts to prevent a party who has misrepresented a fact from denying his representations regarding that fact
-
Equitable Estoppel Elements
- Recipient mst have justifiably relied upon misrepresentation
- Reliance must have substantially prejudiced the party who relied
-
Difference between Promisory and Equitable Estoppel
Promissory Estoppel involves a clear and definite promis, Equitable Estoppel involves missrepresentation
-
Laches
An unreasonable delay in pursuing a claim in equity that prejudices the adversary
-
Purpose of Civil Contempt
induce compliance, protect/compensate party
-
Purpose of Criminal Contempt
Punish/Vindicate Court
-
TRO without Notice requirments
- Immediate and irreparable injury, loss or damage, will result before the adverse party can be heard
- Movant's attorney certifies in writing any efforts made to give notice, and reasons why it shouldnt be required
-
Contents of TRO without Notice
- State date and Hour issued
- Describe injury and why its irreparable
- state why it was issued without notice
-
Contents and Scope of Every Injunction and RO
- State reasons why it issued
- terms
- describe in reasonable detail the act or acts restrained or required
-
Standard to issue TRO
- Likelihood P will prevail on the merits
- threat of irreparable injury to P if not issued (no adequate remedy at law)
- degree of harm to D if injunction issued
- Public interest
-
Who is bound by Equitable Degree
agents, abettors, successors in interest, and acting in concert with party with actual notice
-
When Liability in restitution is based on a benifit in a form other than money the most suitable measure of the unjust enrichment may be
- Value of the benifit in advancing the purposes of recipient
- Cost to claimant of conferring Benefit
- Market Value of the Benefit
- Price fixed by agreement between parties
-
Measure benefit in quantum meruit by
value of the goods and services provided
-
earning capacity
award available for reduced earning capacity available even if no actual reduction in earnings
-
Show lost capacity by
- past earnings
- lost profits
- specific lost opportunities in future
- skills, aptitude
- statisticts as to future
-
Traditional Actuarial Approach
Current wages x work life years - discount reducing to present value
-
how to measure loss
- experts on market value
- subjective factors based on owner use
- cost of repairs
-
permanant injury
when costs of repairs exceeds value of building before injury
-
value of apparel and household goods
reasonable value of their use to the owner at the time of their distruction
-
Public Nuisance
an act not warranted by law, or an omission to discharge a legal duty, which acauses damage to the pucblic in the excercise of common rights
-
Private Nuisance
the interference with the right of specific people
-
Permanent nuisance
- one action for all injury
- SOL applies to the whole
- where nuisance from very character of lawful activity creating nuisance
-
Temporary Nuisance
- Successive actions for past injury
- SOL applies only to portion
- where nuisance is feasibly abatable
- where caused by negligence
-
Election of remedies doctrine
a plaintiff who has two inconsistent remedies muyst elect between them and pursue only one of them
-
when are remedies inconsistent
- when one remedy results from affirming the transactionand the other from disaffirming
- recision and damages remedies
-
All damages remidies are considered to _______ the contract
affirm
-
Pre-trial election rule
plaintiffs conduct before trial can be treated as an election to affirm the transaction even if that is not the intent
-
Ways to Affirm
express election, passage of time and acts of ownership
-
Recission requires offer
Status quo ante unless wrongful acts make impossible
-
Proximate result rule
- A defrauded party is entitled to all out of pocket losses
- He is entitled to the benefit of the bargan
- He is entitled to the cost of installing missing represented items
- H is entitled to all consequential damages
-
Benefit of bargain Rule
A person may recover the difference between the value the thing would have had if false representations true and the price paid
-
Out of Pocket Measure
recover the price paid for property less the market value of the property
-
Mistake in performance defenses to restitution
- Assumption of risk
- Mistake of Law
- Changed Circumstances
-
Assumption of risk
a party who knows they do not know about a crucial fact, voluntarily makes payment on assumed fact has assumed the risk
-
Change in Circumstance
circumstances that have so changed that it would be inequitable to require the other to make full restitution
-
Rescission appropriate where
there is a mistake of a material fact either as to the subject matter of the sale, the price, or some collateral fact materially inducing the sale
-
Elements of Mutual Mistake
- shared by both parties
- Relate to an essential element of agreement
- not be a matter of mere expectation or opinion about future events, but fact capable of ascertainment at time of contract
-
Extrinsic Intention of Party Factors
- Language of agreement
- Circumstances of negotiation and execution including representation of legal counsel
- Seriousness of unknown injury
- Consideration Paid
-
|
|