144634
Beschreibung
Mindmap von Alex Cooper, aktualisiert more than 1 year ago
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Erstellt von Alex Cooper
vor mehr als 11 Jahre
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4) Damages
- EGG SHELL PRINCIPLE
- NY: P'S RECOVERY REDUCED BY AMOUNT
RECEIVED FROM OTHER SOURCES
- EQUITABLE REMEDIES & INJUNCTIONS
- Remedies & Injunctions available
- Preliminary injunctions
- i) Show likelihood of
success on the merits
- ii) Show irreparable harm
- i) Show likelihood of
success on the merits
- Permanent injunction -
issued at end of litigation
- Negative / prohibitory injunction - i.e.
X enjoined from doing something
- Mandatory injunctions
- Preliminary injunctions
- TEST
- 1) P must show no "adequate remedy at law"
- money damages will not provide adequate remedy i.e.
where tortious conduct repetitive / on going (trespass)
- Note: court can give injunction + money damages
- Note: court can give injunction + money damages
- money damages will not provide adequate remedy i.e.
where tortious conduct repetitive / on going (trespass)
- 2) P must show the he has a protectable right involved in this particular law suit
- 'free square'
- 'free square'
- 3) Injunction must be enforceable
- Issue with affirmative or mandatory injunction
- Issue with affirmative or mandatory injunction
- 4) Balance of hardships - benefit to P must outweigh hardship to D
- 1) P must show no "adequate remedy at law"
- Defenses against injunction (not liablity)
- i) P has unclean hands
- ii) Laches - prejudicial delay in bringing request for injunction
- iii) 1st Amendment - there can be no prior restraint
- i) P has unclean hands
- Remedies & Injunctions available
- AFFIRMATIVE DEFENSES
- Common law - majority abolished + in NY
- Contributory negligence
- Bars P's right to recovery
- Exception: Last clear chance
- Imputed contributory negligence
- Exception: Last clear chance
- Bars P's right to recovery
- Assumption of risk
- NY: Primary assumption of risk - applies only to
participants or spectators of formal recreational activities
- Duty to retrain from reckless conduct - lower duty
- You "assume the risk"
- Duty to retrain from reckless conduct - lower duty
- NY: Primary assumption of risk - applies only to
participants or spectators of formal recreational activities
- Contributory negligence
- Majority rule + NY: Doctrine of comparative negligence
- i) D must show P failed to exercise proper care
for his own safety (reasonable prudence)
- ii) D must show P is expected to observe
self-protecting statues (e.g. don't jade walk)
- Remedies
- Pure comparative negligence
- Damages allocated by percentage of fault
- P always recovers something
- P always recovers something
- Damages allocated by percentage of fault
- Modified or partial comparative negligence
- If P's fault over 50% - absolute bar to recovery
- P's fault under 50% - recovery reduced by %
- If P's fault over 50% - absolute bar to recovery
- Pure comparative negligence
- i) D must show P failed to exercise proper care
for his own safety (reasonable prudence)
- Common law - majority abolished + in NY
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