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Remedies - Coggle Diagram

- - - - You can only get damages when you can prove what they are, within some boundary of specificity
        
        Demonstrated with certainty that such damages have been caused by the breach
        
        Alleged loss must be capable of proof with reasonable certainty
        
        Particular damages were fairly within the contemplation of the parties to the contract at the time it was made
      - Lost Profits: massive quantity of proof needed
      - Special Rule: New Business
        
        Cramer v. Grand Rapids
        
        Beverly Hills Concepts
      - Damages for breach of contract to pay a debt or a sum certain are limited to that sum (Meinrath v. Singer)
        
        Roxas v. Marcos: discovered gold
        
        Raishevich v. Foster: cannabis plant transparencies
      - Bigelow Principle: situations in which the amount of damages, although not specifically ascertainable because of misconduct by the defendant, falls within a certain range. It provides the plaintiff with the benefit of a more liberal lie standard of proof and prevents the defendant from profiting by his wrongdoing at the expense of the victim
    - - Contract: Order to Stop (Clark v. Marsiglia - cleaning and repair of pictures)
        You can’t run up the damages on the defendant, and you have to act to reduce your own damages
      - Tort: Lost Use
        
        Lost Use:
        Roberts v. Pilot Freight Carriers
        
        Loss of use damages are only recoverable for the time lost to make reasonable repairs within a reasonable time. Or else the time required to purchase a new vehicle
        
        The measure of lost use damages is not the same as lost profits. It is the cost of renting a similar vehicle during the time for which the damaged vehicle is out of commission
      - Exceptions
        
        When the work itself is valuable and not just the net from it
        
        When doing the work will prevent further waste
      - In Re Worldcom - endorsement deal
      - Offer to Mitigate
        (DeRosier v. Utility Systems of America)
        
        When one party to the contract defectively performs and subsequently offers to correct the breach through a new contract, the non-breaching party may generally decline the offer and still recover its full damages. Special circumstances may rebut the reasonableness of the rejection and call for exceptions to this rule
      - When do you have a duty to mitigate? (Bright, In Re Air Crash)
    - - Employment
        (Indiana State Symphony v. Ziedonis)
        
        When a discharged employee obtains alternate employment there is no question that the proper measure of his damages is the amount of compensation agreed-upon for the remainder of the contract. Involved, less the amount which he earns from other employment
        
        Being fired can result in offsetting benefits
      - Offsetting is likely to be allowed when the harm and benefit are similar
        
        Remarriage doesn't seem like an offset (Jensen v. Heritage Mutual - husband was killed, wife remarried six months later)
      - Offsetting is not allowed when the harm and benefit are different
        
        Read v. Webster - owned a mill and dam, the dam broke and damaged the mill; got ice from the damage (ice cannot be used to offset the other damages)
      - Hartke v. McElway - high risk pregnancy, underwent sterilization, doctor didn't tell her there was a chance of failure, she got pregnant
        
        Sued for wrongful birth
        
        Awarded damages from pain suffered during pregnancy and childbirth
  - - - Equity
        
        Follows Law
        
        Exception to the law that requires judgement
    - - Compensatory
      - Restitutionary
      - Punitive
  - - - Property
        
        Damaged
        
        Where property has been damaged, the measure of damages is the difference in value before and after the injury
        
        Different Lost Value and Cost to Repair:
        If repair is difficult compared to the actual damage
        
        Same Lost Value and Cost to Repair: lost value to something may be the cost of repair, if repairs are cheap and homogenously performed, and are known to be
        
        Rules for Damage Measurements
        
        Restatement Rule: The plaintiff can recover the difference of value of the chattel before and after the harm, or she can recover the repair cost. Her choice
        
        General Rule (Lesser of Two): The plaintiff can recover the difference of value of the chattel before and after the harm unless the repair value is less. Then she recovers the repair value
        
        Virginia Rule: The jury can decide whether to award the repair cost of the changing value
        
        Burgess v. Shampooch Pet Industries (dog was injured, got cost of medical bills for her because there is no market value for dogs)
        
        Destroyed
        
        No or Low Market Value: alternative measures, emotional distress, value to owner
        
        Market Value: loss of market value diminution in value
        
        Portland General Electric v. Taber - value of loss for a single pole v. group of poles
        
        Ocean Electric Co. v. Hughes Laboratory - Stores inventory was damaged and he claimed that compensation should be assessed by the retail cost of that inventory. But the inventory could have been replenished at the wholesale cost which was much less
        
        Collateral Source Rule: benefits received by a plaintiff from a source wholly independent of and collateral to the wrongdoer do not diminish the damages the plaintiff can otherwise recover. Under the collateral source rule, evidence of a plaintiff's alternative or additional sources of payment for expenses or losses for which the plaintiff seeks damages in a civil action, such as insurance coverage, generally is excluded as irrelevant (Liberty Mutual Fire Insurance v. Michael Baker)
      - People
        
        Pain and Suffering
        
        Measure: Ask the Jury
        
        Remittitur (when the award is too much): Judge threatens a new trial if the plaintiff does not accept the lower recovery
        
        Standard for Amount of Remittitur: What a reasonable jury, properly instructed, would have awarded
        
        Between the lowest and highest amounts supported by the record
        
        Cases
        
        Consorti v. Armstrong World Industries
        
        Fertile v. St. Michael’s Medical Center (baby delivered vaginally instead of c-section, baby has arm damage)
        
        NY: Deviates materially from reasonable compensation (Epping v. Commonwealth Edison)
        
        Manifests denial of justice, takes your breath away
        
        Sometimes you compare to other cases
        
        Passion or Prejudice (Epping)
        
        Additur
        
        Harm that is probalistic
        
        Medical Monitoring v. Enhanced Risk
        
        Enhanced: compensation for the anticipated harm itself
        
        Monitoring: quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm
        
        Increased Risk v. Loss of Chance
        
        Loss of Chance (Matsuyama):
        
        Whether the defendant’s actions caused the death from decreased probability of life
        
        Calculate the full award (award for death) then fractionalize based on the loss of chance
        
        Increased Risk: Seek recovery for the chance of developing a future harm
        
        Loss of Enjoyment of Life
        
        Must be conscious to receive lost enjoyment of life damages (McDougald v. Garber)
        
        You cannot consider a plaintiff's race or ethnicity in determining damages (GMM v. Kimpson - lead paint victims were disproportionally hispanic children)
      - Relationships
        
        Loss of Consortium
        
        Child and Parent (Reagan v. Vaughn):
        Factors to Consider: severity of the injury, actual effect upon the relationship, child’s age, nature of the relationship, child’s physical and emotional characteristics, etc.
        
        Spousal (Whittlesey v. Miller):
    - - Economic Loss Rule (GE v. Lowe's)
        suits in tort require damage to your own person or property
      - Collateral Source Rule (Fire insurance case)
    - - When? Malice, usually by intentional torts, "conscious disregard for the safety of others" (Taylor)
      - Measure? Jury question measuring how bad the act was
        
        Evidence of the wealth of the defendant
        
        Burden on the plaintiff
      - Constitutional Limits on Punitive Damages
        
        Factors
        
        Reprehensibility: how bad was the defendant's conduct? Can use repeated past similar actions, but not dissimilar actions
        
        Ratio: Damage done to punitive damages. A single digit ratio is usually best. As the damages increase, the ratio declines. Jacques v. Steenberg Homes; with low damages, a high ratio might happen.
        
        Comparison to other kinds of penalties for the conduct at issue.
  - - - Expectation Damages: Position the plaintiff would be in if the contract were fully performed, measured by benefit of the bargain (Sullivan "nose")
      - Reliance Damages: Putting plaintiff in the position they were in before entering the agreement (Matthew architect case: the court used the work hours of the plaintiff / Sullivan)
      - Restitution: Benefit you give the other party for performance (Matthews case: benefit bestowed was the work hours put into the plans)
      - "Off Contract" Remedies
        
        Disgorgement: Benefits gained by the breaching party in the breach
        
        Punitive Damages
      - Remedial Clauses
        
        First Look: judge ex ante
        
        Second Look: ex post
- - - - Equitable claims and remedies are determined when the state constitution was adopted
    - - History of courts: equity dates back to the time of the revolution
    - - Equitable or not as dated to the 1930's merger of law and equity (In re Evangelist)
  - - - When is it issued?
        
        Discretionary Considerations
        
        Superiority of the injunction to other legal remedies or a comparative idea
        (Chesterton: injunction can avoid calculation of damages)
        
        Balancing of the Hardships
        
        Public Interest