J2206934@Trbvm.Com

Remedies-Infelise-Spring 2002

A remedy is anything a court can do for a wronged or potentially wronged party. The law of remedies is both substantive and procedural.

I. Categories of Damages-Compensatory Damages – we look at damages based on value.

A. Fundamental Basis – Put P in his or her rightful position. This is shorthand for restoring the party, nearly as possible to the position he would have been in but for the wrong. P may be entitled to pos that is not always the same as his original position. Sometimes the P is entitled to damages based on a prospective position- one he never occupied.[lost wages, lost profits]

B. Hatahley illustrates rightful position and the problems in adopting the rightful position as the measure of compensatory damages.

1. 10th Cir says emotional damages should not be rewarded as a lump sum, individuals should be examined to determine extend of each ones damages.

2. Missed Ceremonies- p&s, very personal. Very hard to value, can testify as to importance of ceremony, but value is det largely w/o guidelines.

3. 10th Cir says value of any horse is replacement cost; Trial court awards value based on training, breeding makes the horse unique. Very few courts would use the trial ct method of valuation b/c it is too indirect (horse=3 sheep, sheep sell for X on mkt). Modernly, a horse appraiser would be used.

4. 10th circuit wants records on lost livestock, such records don’t exist

5. Certainty is less important for Torts than recovery on Contract. But we strive for precision, hence the need for individual determinations.

6. 10th Circuit by insisting on certainty, individuation, etc – adds much to the cost of recovery by the P’s

7. 10th Circuit wants them to mitigate, how possible is that for the Navajo in the 1950’s

8. this case stds for the fund principle of damages is to restore the injured party, as nearly as possible to the...