Classification of Remedies

Damages: A money remedy aimed at:

o Making good the Plaintiffs losses, i.e., returning plaintiff to his
rightful position (compensatory), or
o Punishing Defendant (punitive)

Restitution: Prevents unjust enrichment of Defendant by making him

give up what he wrongfully obtained from Plaintiff.

Coercive remedies: A judicial command to Defendant to act or to refrain

from acting in order to prevent/correct harm.
o Failure to comply = contempt of court

Declaratory Remedies: An authoritative judicial statement of the

parties rights for purpose of guiding future behavior/preventing loss

Ancillary Remedies: Various methods for recovering judgments and

costs of obtaining them.

Compensatory Damages
Definition: A substitutionary monetary remedy designed to compensate
Plaintiff for his injury by restoring to rightful position.
o Justification: Corrective Justice; Economic Incentives to Rightful
Conduct.
o Evidence: Plaintiffs own losses as properly measured

Rightful Position:
o Tort injury: Generally monetary recovery puts Plaintiff in position
she would have been in had Defendant not committed the tort.
o Contract Injury: Generally monetary recovery puts Plaintiff in
position she would have been in had Defendant not breached.

Compensatory Damages In Tort: Bodily Injury

o Economic (Special) Damages:
Lost Earnings
Lost Earning Capacity
Medical/Other Out of Pocket Expenses
o Non-Economic (General) Damages:

Physical Pain and Suffering

Mental Anguish (Emotional Distress) including
Humiliation/Embarrassment
Disability/Disfigurement
Loss of Enjoyment of Life (Hedonic Damages)

o Calculating Future Damages:

How long will the injury last?
If permanent, what is plaintiffs life expectancy/work
expectancy?
For economic damages, consider inflation (increases
damages), reduction to present value (reduces damages).
Also consider likely promotions for lost future earnings.
o Proof:
Demonstrative Exhibits
Per Diem Argument
Expert Witnesses
o Loss of consortium:

Compensatory Damages In Tort: Emotional Injury Only

o Assault, battery (offensive contact), false imprisonment, trespass
(sometimes), IIED, NIED, civil rights, violation of Constitutional
rights:
Emotional distress damages, if such distress proven

Compensatory Damages In Tort: Death

o Survival Action: If either the tort victim or the tortfeasor dies, suit
can still be brought, i.e., it survives. Common law held that claim
evaporates if either party dies prior to suit being brought. If tort
victim dies suit brought by her estate. If tortfeasor dies, suit brought
against his estate. Suit is for same damages decedent himself could
have recovered.
o Wrongful death action: Beneficiaries recover for their own
injuries caused by decedents death, such as loss of financial
support, services, affection, guidance, companionship. Must prove
death caused by tortfeasor. Regardless of when decedent suffered
injury, statute of limitations for a wrongful death action starts to run
upon death.

Compensatory Damages In Tort: Damage To Real Property

o Difference in value immediately before and immediately after
damage, or
o Restoration cost unless it exceeds difference in value enough (or,
some courts say, exceeds pre-damage value enough) to be deemed
unreasonable economic waste
o Lesser of two rule?
o Plus loss of use
o Plus discomfort/annoyance as occupant

Compensatory Damages In Tort: Damage To Personal Property

o Difference in fair market value immediately before and immediately
after damage, or
o Repair cost unless it exceeds difference in value enough (or, some
courts say, exceeds pre-damage value enough) to be deemed
unreasonable economic waste.
o Plus loss of use = rental value

Compensatory Damages In Tort: Property Damage (Determining

Market Value)
o
o
o
o
o
o

Sales of similar properties (comparable)

Appraisals of components of property
Active market in same type of property
Repair cost
Replacement cost [less depreciation]
Capitalization of earnings

Restatement (Torts) 2d 911: Value

o Value means exchange [market] value or the value to the owner if
this is greater than the exchange value.

Situations Where Value to Owner Can Exceed Market Value

o Courts will allow recovery greater than market value if there is no
functioning market or the market is substantially undercompensatory.
Charitable-use property.

Personal-use property, such as a house whose cost to rebuild

is greater than its market value.
Used consumer goods and clothing (but usually not used
cars).
Sentimentally valued property (such as wedding pictures).
Your Remedies outline.

Compensatory Damages: Property Damages

o Consequential Damages: lost profits, out of pocket expenses over
and above difference in value/repair cost.
o Must pass proximate cause foreseeability test

Compensatory Damages: Breach of Contract