Remedies outline tort remedies

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Remedies Outline




    1. LEGAL Remedies

      1. DAMAGES – Based on the injury to the P [compensatory, nominal, punitive]

        1. Three Types

          1. Compensatory – Place the injured party in the position he would have been in had the injury not occurred.

          2. Nominal – Awarded when the plaintiff has NO actual injury in order to establish or vindicate the P's rights.

          3. Punitive – Damages awarded to punish the defendant (3 Rules)

            1. Actual Damages Prerequisite – In order to get punitive damages, P must have been awarded compensatory or nominal damages first.

              1. Note: Punitive damages can also be attached to restitutionary damages for tort cases.

            2. Willful, Wanton, MaliciousIn a non-contract claim, P must prove by clear and convincing evidence that D engaged in conduct beyond mere negligence.

            3. Due Process Concerns – Apply 3 factors to determine if the damages are grossly excessive.

              1. Reprehensibility of the D’s conduct

              2. Reasonable ratio – punitive to actual damages (Single digit)

              3. Difference between the punitive damages and the civil statutory penalties/ fines available for similar conduct

        1. Four Requirements

          1. Causation – Actual causation ("but for" test)

          2. Foreseeablity – Proximate causation, the injury must have been foreseeable a the time of the tortious act

          3. Certainty – Damages cannot be speculative

            1. Economic Losses (Special Damages) – must be proved with sufficient certainty. (ex. medical expenses, lost earnings)

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