Types of Damages: Compensatory (Make P whole, Redress, Deter) / Punitive (Punish, Deter) Law vs.

Equity = whether right to jury trial. (Whether right analogous to one that would have been historically viewed as legal or equitable, or whether remedy is analogous to one historically viewed as legal or equitable). Damages Analysis (all problems): 1. What is COA, 2. What elements of damages are recoverable, 3. How are damages to be measured, 4. Should damages be limited byforeseeability, Certainty, avoidance/mitigation, losses offset by benefits or collateral sources, agreed upon limitations on liability, 5. How is claim presented to Jury. Value Determination (^Step 3): GOAL = Return P to rightful position. Must know pre and post injury value of thing at issue at time of loss. Calculate using one of these approaches. 1. Market Data Approach (comparable property and adjust up/down based on uniqueness). 2. Replacement costs less depreciation approach. (D not req. to pay cost of better or newer model) 3. Income or capitalization Approach. (ID $ profit owner might realize from use of item, then determine how much $ invested at appropriate rate of return it would take to get same income stream or how much investor would pay for an investment that yielded that return). Once known pre and post injury value, calculate diminution in value. (amt. of comp. allowed) Sometimes P allowed to recover Cost of Repair as substitute. (return to pre-damaged cond.) o Reasonable (FMV of repairs) no WASTE (no paying $6k for a $2k car) o FMV = $ at which prop. Would change hands b/w willing buyer & seller w/ no compulsion Contingent Valuation Use Polling to derive econ. Value people attach to nat. resource.

Tort Damages:

rightful position = status quo. Money to put P in position was before the tort.

Compensatory = Past & future bodily harm & emotional distress, lost earnings and loss of earning capacity, Reasonable past and future medical and other expenses, and Harm to property or business. Property Harm, damages include comp. for: Difference b/w pre/post tort market value or cost of repair; the loss of use of the land, and occupants discomfort and annoyance for real prop. General Damages: Pain and suffering from actual injury, Emotional Distress, Quality of Life Special Damages: Past and future medical expenses, loss of earnings & earning capacity, prop. Damage Wrongful Death: Action by survivors for losses they sustain as a result of death (loss of support, loss of services, grief and distress) Survival: Action by Estate (on behalf of decedent) for losses b/w time of injury & time of death. Loss of Life: Action by Estate (behalf of decedent) for actual loss of his life. Frowned upon unless D=police. Measuring the Damages: Non-Pecuniary Loss: Whether award is the product of passion & prejudice. 3 part test: 1. Whether award is monstrously excessive, 2. Whether rational conn. Between the award and the evidence, and 3. Whether award is roughly comparable to award made in similar cases. Future Loss: Difficult to speculate what would have happened in future. Look to individual characteristics to determine: Race, gender, class, family educational background, etc. Limits on Recovery: Foreseeability: Reasonable anticipation of poss. Results of an action. Take P as you found them (thin skull rule). Can recover if accident hastened or exacerbated problem. Knew or should have known. Certainty: P may recover for increased risk of injury due to Ds negligence but recovery should reflect extent of risk (reduced accordingly if risk is low). Unavoidable: P cannot recover the part of injury which could have been avoided by taking reasonable steps after injury occurred.

Contract Damages:

rightful position = bene of bargain = Ps position if K had been performed. Judicial Remedies under Restatement serve to protect one or more of the following interests of a promisee: Expectation Interest: Interest in having the benefit of the bargain by being put in as good a position as you would have been in had the contract been performed. o How to calculate Expectation Damages (Restatement): Injured party has a right to damages based on his expectation interest as measured by: (a): the loss in value to him of other Partys performance caused by its failure or deficiency, plus, (b): any other loss, including incidental or consequential loss caused by breach, minus, (c) any cost or other loss that he has avoided by not having to perform. Reliance Interest: Interest in being reimbursed for loss caused by reliance on the K by being put in as good a position as you would have been in had the contract not been made. Restitution Interest: Interest in having restored to you any benefit that you have conferred on the other Party. General/Direct Damages: Arise naturally from the breach and are foreseeable by definition Incidental Damages: Costs of fees that are reasonably associated with, related to, or incidental to the actual damages. Consequential Damages: Damages that must be proven to have been foreseeable based on special circumstances known to the breaching party at the time the K was formed. Limits on Recovery: Same as TORT DAMAGES. Certainty: Damages must be shown w/ reasonable certainty. If cant calc. loss w/ reasonable cert., cannot recover damages for that loss, although he can recover nominal damages. Foreseeability: Loss may be foreseeable as a probable result of a breach b/c it follows the breach in (a) ordinary course of events, (b) as a result of special circumstances beyond the ordinary that Party in breach had reason to know. Courts can limit to avoid disproportionate compensation. FORESEEABILITY MUCH HARDER TO ESTABLISH IN CONTRACT DAMAGES VS. TORT. Avoidable Consequences/mitigation Must take reasonable measures to avoid/mitigate. Punitive damages normally not avail. In breach of K case. Emotional Distress damages rarely available in breach of K case.

Injunctions:

Equitable remedy ordering defendants to engage in,or to refrain from engaging in, an act(s). Goals = Preventative against continuing/threatened harm. Reparative req. D to restore P to his rights. Structural Applies to orgs (prison/school) and are designed to bring org. into compliance w/ legal req. Prophylactic Goes beyond Ps rightful position in order to actually achieve that position. Goal is not to reform or punish the D, but to put P in rightful position. Mandatory Injunction Injunction which compels an act is referred to as mandatory. Prohibitory Injunction Injunction that forbids an act. Permanent v. Temporary Permanent Issued after determination of merits. Designed to apply prospectively and permanently unless modified or dissolved. Temporary TRO Designed to maintain status quo until hearing on whether to grant preliminary injunction. Temp. Preliminary Injunction Issued at beginning of litigation, designed to prevent irreparable harm, maintain status quo.

Req. for Relief: TRO and Preliminary P must show immediate and irreparable injury will result if not issued. TRO = injury will occur b4 a hearing can be held. PI = Injury will occur while lawsuit pending. Hearing Requirement: Injunctions generally entered after contested hearing. Exception = TRO can be issued ex parte bc there is not always time. 5 Factor Test TRO and Preliminary Injunction: Ps Burden: (1) Threat of Harm (must be continuing threat), (2) Without injunction irreparable harm likely to result (no adequate remedy at law), (3) Hardship to P outweighs hardship to D if order were to issue (balancing of equities), (4) Likelihood of success on the merits, (5) No substantial harm to public. Balancing the Equities Court should deny permanent specific relief if: (a) relief imposes hardship on defendant, and (b) hardship is substantially disproportionate to disadvantage to P of receiving only substitutionary relief. Consider relative fault of each litigant. o 4 Step Analysis: (1) Id hardship to D = diff. b/w cost of compliance w/ injunction nand cost lawmaker anticipated, (2) ID Ps interest = disadvantage to P of receiving only substitutionary relief, (3) Discount Ds hardship and Ps interest to take account of fault, (4) Balance Ds hardship and Ps interest in light of the laws goals. o When there is no remedy that would place P in his rightful position exactly, the injunctions terms may overreach the rightful position so long as the injunctions aim is to achieve no more than the rightful position. Injunction for Breach of K: (1) Order of specific performance (most common) ordering D to perform as promised. (2) Negative injunction, where specific performance unavailable, will stop D from undertaking other duties inconsistent with performance of K. Enforcing the Injunction: CONTEMPT: (1) Compensatory Civil Contempt If Injunction violated, may award monetary comp. to P (no right to J trial, award of lawyer fee = possible). (2) Coercive Civil Contempt Court may coerce D into obeying injunction by jailing or fining the violator. (3) Criminal Contempt Imposed for purpose of punishment. If violation of injunction willful, court may adjudge the violator guilty of a crime and impose sentence. **Remember, for it to be civil, the D needs to be able to purge themselves of the contempt (paying fine), and a criminal contempt needs constitutional safeguards (jury and beyond a reasonable doubt) criminal contempt is also for a specific amount of time, whereas civil ends once the conditions of contempt are met** Civil Contempt Elements (1) Order, (2) D must have knowledge of prior order, (3) Terms of order clear and definite, (4) Proof of noncompliance, (5) Clear and convincing evidence. Criminal Contempt Elements (1) Order, (2) D prior knowledge of order, (3) Order Clear and Definite, (4) Proof of non-compliance, (5) Clear and convincing proof, (6) Willful Contempt, (7) Proof = beyond reasonable doubt standard.

Restitution:

rightful position = prevent unjust enrichment, strip D of unfairly made gains. Ask: Is P seeking recovery for Unjust Enrichment (money) OR Specific Restitution (return of thing) Restitution matters when: (1) no COA available other than one based on UE. (2) When restitution remedy will get P better recovery. (3) When there is advantage to seeking specific restitution bc D is insolvent or prop. Value changed. Unsolicited Benefits, Solicited Benefits, Wrongfully acquired Benefits Ds Degree of Fault Plays large role in measure of recovery. (1) If D behaved tortuously, recovery measured by Ps losses, even if > than benefit D got. (2) If D consciously tortious in acquiring benefit, recovery measured by profit D derived, even if > Ps losses. (3) If D was innocent in acquiring benefit, recovery measured by lesser of gain to D or harm to P. Quasi-Contract (K at law) Elements: (1) Benefit conferred upon D by P with expectation of payment; (2) Awareness, appreciation, or knowledge by D of the benefit,; and (3) Acceptance or retention of the benefit by D under circumstances to make it inequitable for D to retain benefit without payment to P. Recovery is for value of Ps services and may or may not be same as K price. Constructive Trust Primary vehicle for enforcing obligation to return benefits unjustly acquired. D is holding property in trust for P. Elements: (1) Wrongful Act, (2) Specific Property acquired by D that is traceable to wrongful behavior; and (3) Equitable reason why D holding property should not be allowed to keep property. Rescission Courts cancel the deal and return parties to positions before transaction. May be granted if: (1) Substantial breach, (2) Injury caused by breach is irreparable, and (3) Damages are inadequate, difficult, or impossible to assess. OR by Mutual Consent. Tracing P required to trace property to assert constructive trust. 3 types: FIFO, Wrongdoer spends his money first, Option Rule (Victim chooses whether withdrawal is counted as his or Ds). Lowest Intermediate Balance Rule Presumption that once money has been withdrawn from acct, it is never replaced. (applies to all 3 methods)

Equitable Defenses:

Bars to Ps relief Unclean Hands: Conduct by P that may be unfair, unethical, improper, or illegal. Can prevent P from recovery. Factors: (1) Whether Ps conduct involved serious moral turpitude, (2) Closeness of wrongful conduct to transaction, (3) Whether P was in a superior or subservient position to recipient, (4) How great a forfeiture would ensue from a failure to give relief, (5) Whether a denial of relief would tend to discourage similar illegal transactions. Estoppel: Applies when D made a promise to P on which P relied to her detriment. 4 Part Test: (1) Party estopped must know the facts, (2) Must intend that his conduct shall be acted on or must so act that the party asserting estoppel has a right to believe so, (3) Latter must be ignorant of the facts, and (4) Must rely on the formers conduct to his injury. In Pari Delecto: Damages may be barred on grounds of Ps on culpability only where as direct result of his own actions, P bears at least substantially equal responsibility for the violations he seeks to redress. Laches: Unreasonable delay by P in instituting or prosecuting an action that causes prejudice to the D. Mere passage of time does not constitute delay. Delay occurs when P has actual or constructive knowledge of facts that support claim for relief and doesnt. Delay becomes unreasonable when there is no explanation for the delay. Prejudice 1. Defense Prejudice (ability to defend against claim), 2. Economic Prejudic (liability is enlarged as result of unreasonable delay). 3. Unfair exposure to risk (risk exposure usually monetary) Burden of Proof 1. P unreasonably delayed bringing suit. 2. D. Suffered prejudice bc of delay. 3. D relied on not being sued.