Remedies

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  • Topic: Tort, Damages, Judicial remedies
  • Pages : 25 (8476 words )
  • Download(s) : 198
  • Published : April 1, 2013
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INTRO:
We’re not interested in proving liability, we’re concerned with finding the need for a resolution The creation of a right is distinct from the provision of remedies for violations of that right (just because a right was violated doesn’t necessarily mean there’s a remedy) Choices between responsible solutions in a world of limited possibilities (A solution requires the decision maker to select between alternative possible solutions in a world of limits) GOAL: to use actual professional judgment to choose as wisely as possible between all the alternative remedial solutions TYPES OF REMEDIES (usually classified according to what they are designed to accomplish) DAMAGES (looks to what P lost):

Compensatory Damages: “to make someone whole” (compensate a harmed party for loss or injury--for harm already suffered) desire to substitute money for a harm -- to replace something with money (designed to make P as well off as he would have been had he never been wronged) Contracts cases: to protect P’s expectation value "GENERAL" vs. "SPECIAL" DAMAGES:

GENERAL/DIRECT/COMPENSATORY DAMAGES: Generally are those that are the consequence of and proximate result of the conduct of the D as to any typical P general damages do not need to be specifically pleaded in order to be recovered [in order to recover general damages, P only needs to prove the amount of the loss] SPECIAL/CONSEQUENTIAL DAMAGES: those that are peculiar to a particular P [They may, but do not necessarily have to occur at all] to recover special damages both the fact of damages as well as the amount of the loss must be specially pleaded and specially proven SAMPLE PROBLEM (General vs. Special Damages): P is in a car accident negligently caused by D. P suffers a head injury that puts P in a coma for 2 months, but recovers quickly upon awakening + P is out of work for 3 months, losing about $15,000 in wages + P incurs over $90,000 in medical expenses. QUESTION: Which of these categories of damages would be considered general damages?: The $15,000 in past wages?/The $90,000 in medical expenses?/Pain and suffering experienced by P? ANSWER: General damages must necessarily arise as the result of D’s conduct. Pain and suffering: presumed by the law to necessarily result from any personal injury. Medical expenses/Lost wages DO NOT necessarily result from any personal injury Non-Compensatory Damages: Apart from its obvious purpose of providing compensation for losses, damages also serves as a means of officially declaring a "winner" (nominal) +can serve to punish or deter (punitive) Nominal Damages: a right is violated but no measurable loss (tells world that P won) Punitive Damages: to punish for past conduct or to deter from any future conduct RESTITUTION: (Non-Compensatory): focus is not compensation for the wrong suffered [greatest reach of this remedy: awards P profits earned from wrongdoing EVEN if they exceed P’s damages] 2 Types:

1. Substitutionary remedies: damages measured by unjust gain of D (purpose is to deprive D of wrongful profit) designed to restore to P all that D had gained at the expense of P 2. Specific Remedies in restitution: Gives P precise performance INJUNCTION:

Specific Relief Injunction: Gives P precise performance Preventive Relief Injunction: protects rights by restraining activities Declaratory Relief: Determination of the relative rights (Judge determines the relative rights of the parties) LEGAL VS. EQUITABLE REMEDIES:

LEGAL REMEDIES: Mostly substitutionary and...
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