REMEDIES NOTES: Spring 2014

1-22 Class 1
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The medical malpractice cap in NC is $500k, but there is no limit for

noneconomic damages if the suffered a disfigurement, loss of use of
part of the body, permanent injury or death. If the s acts or failures
were committed in reckless disregard of the rights of others or grossly
negligent.
Legal rights have legal remedies. First, you must determine whether or
not a legal right was invaded. Then, the remedy.
Goal: to put the client in his rightful position/the position they would be
in had the wrong not occurred. Assumption (that the is able to make
the whole).
A remedy is anything a court can do for a litigant that is wronged or
about to be wronged.
Why is remedy important? Give meanings to the substantive law.
Compensatory, preventative (coercive, injunctions, declaratory),
restitutionary, punitive, ancillary (costs, attorneys fees).
Legal (monetary damages) v. equitable (the injunctive relief).
MUST HAVE BASIS FOR ANY REMEDY.
BASIS: Common law, statutory (federal, state, direct v. implied
remedies), and constitutional (us, state).
Two most common remedies? Damages (judgments), and injunctions
(stop something from happening).
Types of damages: compensatory, punitive (punishment, usually
higher), and nominal (usually one dollar), and presumed (ex: for
trespass, if a person crosses onto your land, it is presumed that there is
damage).
Statute of Limitations:
Why do we have them? Avoid old claims. It can be harder to
prove something years later as opposed to bringing a claim in a
timely manner.
Issues? Discovery, continuing harm, and multiple claims.
Statutes of Repose SOR: 1-46.1 (Twelve years), this is
different from a SOL because it accrues at the time of the
purchase for use or consumption as opposed to an SOL accruing
at the time of the wrong. The claim can be barred before it even
occurs. Its an absolute end point from the SOL. Ex. SOR starts
when the item is sold not when the harm was inflicted.
When does the action accrue? Snappy Tools ex: was it when the
started the business or was it when the saw the news report
on the fraud?

o The tape is prejudicial.D will try to stop it from shown to

jury.
Administrative Notice Requirements: for discrimination suits, a
requirement that you exhaust all administrative remedies first.
1-53 [see slides]

Course Goals:
o Identify possible remedies and my issues related to pursing such
remedies in the context of substantive law
o Understand the practice realities involved
o Analyze and argue in context of the proposed remedy...be able to
distinguish your case, your facts, your clients situation.

PERSONAL INJURY-DAMAGES
- General (noneconomic damages, like pain and suffering) things you
really cannot put a number on v. Special Damages (lost wages and
medical expenses) things you can put a number on.
- Things to consider to prove these damages:
Scarring and disfigurement: prove causation.
Loss of the use of a body part.
Mortality tables to determine the length of time that a person will
likely live. NC statutes dont include race, gender, or other
important factors.
-

Why is personal injury and property handled separately? Property is

easier to calculate, PI is harder to prove.
HOW TO PROOF IT? Present Value: future medical expenses, future
loss wages, the jury is supposed to reduce it to the present value.
Present value is the computation of how much a is required to give a
now so that once it is invested it will last.
Future worth:
Offset approach: wage increases assumed to offset interest earned
adjustment.
Rule of 72: divide your interest rate by 72 and this tells you how fast
your money will double.
Final mandate that the jury is given: the award must be fair and just.
Proving Damages at Trial:
Suggest an award (lump sum or category)
Challenge the s contentions.
Golden rule arguments (NOPE).
Per Diem Arguments
Damages award: monstrously excessive and shocks the conscious of
the court. s given a new trial or remittitur.

Class 2, 1-29

Is race an issue when deciding damages?

o Life expectancy is an issue amongst races.
o McMillan v. City of New York (reliance on race based statistics in
estimating life expectancy for individuals to calculating damage
is not scientifically acceptable in our current heterogeneous
population.
- Helicopter example:
o Was the wife conscience during the 20 seconds when the Heli
went down?
NEGLIGENCE
- Duty, breach, causation, and damages.
- States statutes effect the damages.
LOSS OF CONSORTIUM
- Spouses, parents, and children can collect. Mainly spouses, but some
courts allow the others to as well.
- The claim recognizes: the delicate emotional elements of the
relationship, the services provided by the other spouse,
- Must be married and provide credible evidence that the injury
disrupted the marital relationship.
- Loss of services: the types of services the victim provides like
housekeeping, transportation, and instruction.
- Loss of relationship: loss of sexual relationships between spouses,
loss of companionship, society, and guidance, love and affection, and
solace and moral support.
- Parental and Filial Consortium: Parental=claim by children, limited
to the period of the childs minority and the loss of a step-parent or
guardian will not suffice. Filial=claim by parent, limited to claims
involving severe or disabling injuries to the child.
- Domestic Partners: traditionally only asserted by lawfully married
spouses. There are domestic partner statutes that can extend the right
to bring such claims to registered partners.
REMEDIES WHEN THE PLAINTIFF DIES
- At common law the cause of action died with the decedent.
- Now there are survivor statutes that provide a survival of the action
and allow the survivors to assert claims.
-

Survivor Actions: allows the decedents estate to maintain an action

that had accrued during the decedents lifetime. Subject to the
limitation that the damages must be confined to the pre-death period.
They only preserve bodily injury claims, but not things like defamation
or invasion of privacy. Tortious interference, professional malpractice,
economic support rising out of the wrongful death of another and
constitutional torts. Pre-death pain and suffering can also be awarded.

For example, the amount of pain and suffering that a victim endured
before they died.
-

Wrongful Death Actions: matures on the death of the decedent and

permits the holders of the action to recovery for the independent injury
and loss resulting from the death.
Each state has their own statutes and the damages are different.
In NC, the recovery for a WD suit cannot be used to pay the decedents
debts. This does not go through the estate, this is for the survivors. If
the D has a will, that is irrelevant.
o The Intestate Succession Act states the succession that the
damages would go to. The farther away from the D, the smaller
the claim. The statute assumes that all of the people suing
deserve an equal share.
o Damages that are recoverable: expenses for care, treatment,
etc. Pain and suffering, and funeral expenses.
What needs court approval in NC? Situations involving minors, or
people under the age of 18. The court has to approve the settlement.
Even if it involves one minor and 4 adults, it will still need to be
approved.
Punitive damages are a possibility, it will not go to the state. The same
for nominal damages.
Nursing Home Hypo: pain and suffering (how long was mom laying in
the ditch?), showing the relationship.
Two types:
1. Loss to estate statutes: the work-life expectancy is determined,
multiplied by the decedents projected earnings to estimate his lost
earning capacity.
2. Loss to survivor statutes: evidence is provided to show the regular
contributions that the decedent made in order to estimate a lifetime
contribution. The focus is on what the survivors would have
received but for the decedents death.
General Rule: Wrongful death approaches will usually limit
recoveries to those that can be evaluated in monetary terms.
Things that may be recoverable:
o Loss of support: contributions by the decedent that would
have been made available during the life of the decedent
to the wrongful death s. the court will deduct the amount
the D would have spent on themselves, and if the D wasnt
supporting anyone that is also taken into consideration.
o Loss of services: personal service, advice, and training that
the D would have provided.
o Loss of society: allows recovery for the loss of the Ds love,
comfort, affection, society, solace or moral support, any
loss of enjoyment of sexual relations, or any loss of

o
o

o
o

assistance in the operation or maintenance of the home.

This is not limited to surviving spouses, it is also available
to the surviving children and grandparents. Not all
jurisdictions recognize this award.
Funeral and burial expenses: any that have been paid or
incurred.
Loss of inheritance: must show proof that he had more
than a mere expectancy of inheriting from the D. EX: if the
D already had the papers drawn up but didnt have time to
execute them before his death.
Grief and sorrow: most jurisdictions do not allow a recovery
by survivors for this.
Punitive damages: split jurisdictions on whether this is
recoverable for wrongful death.

Ended here 1-29

CONCEPTION-RELATED CLAIMS
- These include:
1. Wrongful birth/wrongful life
The s misconduct led to the parents being denied the
opportunity to make an informed decision to either conceive
the child or continue the pregnancy after conception. The
wrongful life is for the child being born impaired. Ex: usually
occurs when a doctor fails to do tests for disabling diseases.
2. Wrongful conception/Wrongful pregnancy: claims by parents for the
wrongful failure to provide effective birth control which has led to a
pregnancy and the birth of an unplanned child. Damages are limited
to medical expenses, loss of consortium, and lost earnings while
pregnant.
Azzolino v. Dingfelder (1985)
- The s filed a lawsuit wanting damages for the doctors negligence in
not telling them about certain tests that would have shown that the
child had Downs syndrome. If the s had known they said that they
would have aborted the pregnancy.
Univ. AZ HSC v. Superior Court (1983)
- The baby was healthy, but unwanted. The s performed a sterilization,
but did it negligently and the couple became pregnant with a fourth
child.
-

Mitigation of Damages: try to lessen the injury by taking reasonable

measures.
- Parents not mitigating damages by having an abortion or putting the
child up for adoption may be considered an offset.
PUNITIVE DAMAGES
- Purpose is to punish the wrongdoer for willful or wanton conduct.

Must prove by clear and convincing evidence.

NCs limit on punitive damages is $250k, the US Supreme Court
doesnt have a limit, and its a case by case basis.
Caps are there to limit the amount of punitive damages that are
recoverable.
Courts can bifurcate the trial if the seeks damages over $150k. That
way the jury isnt poisoned by hearing the willful and wanton actions of
the . They want to keep irrelevant evidence out of different parts of
the case.
Personal injury and property damage cases are handled separately (ex:
a car accident suit that has both property and PI elements)

Valuing Your Clients Claim or Liability

Settlement Consideration:
- Strength of the claim and defenses: contributory negligence, liability
claim, who is the client, the damages, liens or subrogation claims,
attorneys fees (yours and fee shifting), litigation costs advanced,
taxes, prejudgment interest, and insurance coverage/collectability.
- The judgment can attach to the losing and can affect their ability to
do other things, so it is ideal for the to settle claims. Even if it is for
the max amount of insurance coverage.
- Liens or Subrogation Claims:
Does the amount that the client has to pay out effect the value
of the case? It can make it more difficult to settle knowing that
the has to pay out a certain amount of money leaving them
with less.
First party insurance, disability, government programs.
What can create a lien? Medicare, Medicaid, ERISA, etc. If the
atty does not protect that lien, they may end up having to pay it.
Medicaid:
Arkansas Dept. of Health & Human Services v. Ahlborn (2006)
- Medicaid paid $215k, she got a settlement of $550k.
- Medicaid did not participate in litigation to get paid after the
settlement.
- Can they recover all that they paid, or do they only get a 6th of the
amount? They can only claim the amount that represents medical
expenses.
- The federal law only allows recovery from a 3rd party for medical
expenses.
Wos v. Johnson (2013)
- Damages were $42 million dollars, they settled for $2.8 million.
- NC tried to take 1/3 of the overall settlement. Their statute said that
they get a presumptive 1/3 for medical settlements.
- Medicaid had already paid out 1.9 million.

Costs: things that client will likely have to pay if they lose like witness
fees, jail fees, certified mail, etc. If the judge charges the client with
$25k in costs, they have to pay it.
- Attys Fees: 6-21.1, the attys fees so awarded shall not exceed $10k
in cases involving damages of $25k or less. Why? To encourage and
push settlement and get parties to negotiate in good faith. To stop
insurance companies from fraud. Must include a detail finding of fact
for the finding of a refusal to negotiate. This is a fee shifting statute.
- Contribution: the distribution of liability among the s. General
approach is to divide it by the amount of s. 1B-1 is the NC right of
contribution statute. If during a settlement one of the s settles and
the others settle later, the amount paid is subtracted from the
remaining amount.
- Indemnification: doesnt make the paying party responsible, they are
just agreeing to pay for it.
- Confidentiality clauses: mainly to protect the from other claimants
knowing what they settled a case for with another .
- 1B-2: Pro-rata shares: how the court determines each s share. (2):
common liability arising from vicarious relationships (master and
servant) they will be treated as one share.
- The one satisfaction rule: no double recovery (from one defendant),
entitled to offset for any recovery previously obtained.
- Collateral Source Rule: Can get double recovery because its coming
from different sources.
- Payment by installment: Why not just a lump sum? In cases with long
term injuries it would not be fair for a to have to pay a large sum up
front just to have the die a little bit later. The courts want to be as
fair as possible to both sides.
Taxation of Damage Awards
- 26 USC 24: What is taxable and what is not taxable under the federal
government.
- Punitive damages are taxable, while compensatory damages in a
personal injury case and emotional distress damages are not.
Prejudgment Interest
- 24-5: interest starts to accrue from the time that the case is filed until
the payment of the judgment. Interest rate in NC is 8% per year.
- Why do we have this? To promote settlement, to prevent unjust
enrichment of the by having money he shouldnt have, and to
compensate the s for loss of the use of their money.
- Can be statutory or common law.
Review
- Attorneys fees have to be designated by statute.
- One satisfaction rule: there is no double recovery.
- Punitive damages are taxable, others are not (compensatory).
- Valuing the clients claim or liability: Midterm

Strength of liability claim & defenses (negligence on both

parties)
Damages
Attorneys fees
Litigation costs
Prejudgment interest
What is Starbucks litigation philosophy? Will they pay on a case if
they have a 80% chance of winning.
Liens and Subrogation
- Medicaid, Medicare, insurance companies, etc.
- They will only get the pro rata share of the damages. Ex: if 10% of the
award is for medical expenses, then the insurance will get that.
- How do you determine that portion? Sometimes parties stipulate that,
sometimes it is statutory.
- Actual notice of Medicare lien NOT required, Medicare has priority over
Medicaid.
- If the case is settled, then you have to pay the providers.
- ERISA: insurance provided by the employer. Subrogation is limited.
- Workers Comp: you get hurt at work, does not require negligence. But
if they were, then it would only matter for the lien.
AUTO INSURANCE
- Coverage Types:
1. Liability (mandatory)
2. Medical payments
3. Collision
4. Uninsured/underinsured coverage
5. Umbrella/excess
- What vehicles, who is covered, the liability coverage.
- The is underinsured when the damages exceed the damages. If the
offers to pay the full amount under the policy ($30k), then you have to
tell the s insurance company. Then the s insurance company can
pay the rest of the damage, and go after the s insurance company to
get the money back.
- 58-3-33; obtaining insurance policy limits pre suit. A is allowed to
obtain the insurance policy limits.
Structure Settlements
- A settlement that is a resolution. They are used in minor settlements
(because the kids cant get it until later). It is paid out in timely
increments. It is the courts discretion if the child is under 18, and it can
last a lifetime.
- If you assign the right to another person they will get the payments
and pay you a lump sum.
- If the recipient dies then the estate will get the money.
- Annuities is a staggered amount of money that is tax free.
The Rightful Position Principle

The basic goal: to restore the to the position he rightfully would have
come to/been in but for the s wrong.
- The position the would have been in but for the wrong.
- Value as the Measure of the Rightful Position:
The Lesser of Two Rule: may recover the lesser diminution of
the propertys market value or its replacement cost. Will apply
even when the property has been completely destroyed. Why?
Its efficient, and the point is not to put the is a better position,
but rather the same position.
Specialty Property: whether the use to which the property is put
at the time of the tort is a unique use, suitable only to the owner
and without a fair market value. Ex: a church.
Damages based on value are routine and work well when the
plaintiff can take the money and replace the thing lost. Fair
market value, reduction of FMV, difference in FMV as delivered
versus contract terms.
Three common measures of economic value:
1. Fair market value: what a willing seller could get from a willing
buyer, not a forced sale.
2. Replacement cost less depreciation
3. Income or capitalization of earnings
Difficulties arise:
1. When replacement is difficult and value is hard to determine
2. When cost of repair exceeds the actual value
3. When the damages does not reduce the FMV.
When do we value: Contract cases=date of the breach, property
damage cases=date of the wrong.
The more egregious the s actions the more flexible the court
may be in allowing the to use a valuation to maximize
recovery.
Replacement or restoration costs are allowed in cases where the
FMV is unavailable or unsatisfactory.
Damage to Personal Property
- General rule: FMV at the time destruction
- Other considerations: reasonable loss of use, offset any salvage value,
and there are no emotional distress damages allowed.
- Partial Destruction:
General Rule: diminution in value or cost of repair
Other considerations: reasonable loss of use (during repair time,
fair rental value), diminution in value after repairs, and no
emotional distress damages.
- Value to the owner: personal items, pets, sentimental value.
- Pets: must be distinguished from others that are used for other
purposes, like a guide dog or one used for work.
Interference with Possession of Property

Conversion: General Rule: FMV at the time of taking.

o Other considerations: not available for converted money, may
apply to intangible property, fluctuating value may be
considered, value to the owner may be considered, loss of use as
additional damage measure, and cost of recovery/attempted
recovery.
o Emotional damages in addition and mitigation by accepting
return of property (would they have to?).
- Replevin: equitable approach where the seeks forced return of the
property.
o Other considerations: loss of use as additional damage measure,
depreciation during the time of interference, special damages
(lost profits), and may be governed by statute.
o NC 1-472: the in an action to recover the possession of
personal property may claim that immediate delivery of the
property as provided in this article at any time before the
judgment in the principal action
- Truck Example: the FMV is $600, but the truck is a total loss. He uses
the truck for work. How can he be compensated? Loss of use during
the time that it rakes for him to replace the truck. It must be a
reasonable time though.
Damage to Real Property
- Land and Buildings: General Rule-diminution in the FMV or cost of
repair, restoration, or remediation. May depend on whether the
damage is permanent or temporary.
o Other considerations: noneconomic damages (emotional)
typically excluded, annoyance damages may be recovered
(nuisance or trespass), replacement cost may be measure of
damages for unique structures, or FMV of fixture for
removal/destruction of same.
- Contamination/Environmental: General Rule: cost of restorations
o Other: loss of use may be additional, statutes (federal or state),
stigma damages may be available.
- Ejectment: specific relief via return of possession, likely governed by
statute.
o Mense (mean) profits: reasonable rental value, actual value to
the , and actual worth to the .
Nuisance
- Invasions of the s private use of his property.
- May apply to a variety of activities: light, odors, sound, obstructions,
etc.
- Does not have to be intentional.
- Lawful businesses are not normally a nuisance per se, but it can
become a nuisance because of it operation or other factors.
- Nuisance does not require negligence.

The invasion may be intentional or unintentional through conduct

which is negligent, reckless, or ultra-hazardous.
- A nuisance may come from an improper use of ones property, such as
an illegal business, a threat of trespass, such as from a decayed tree,
or an annoyance, such as visual height, noxious noise, odors, fumes, or
fine particles.
- General Rule: in order to be liable for nuisance, a normally must have
some prior knowledge of the threat on his property which allegedly
creates a nuisance.
- Proof: substantial annoyance, material discomfort, or injury to the
health or property of the adjoining landowner.
- Reasonableness: the social utility of s use is balanced against the
harm and interference with the plaintiffs use of her property.
- Anticipated injuries must be more than conjectural and amount to
actual interference with her use and enjoyment of her property. Mere
diminution in market value will not suffice.
- Factors to consider:
1. The surroundings and conditions under which the s conduct is
maintained.
2. Character of neighborhood.
3. Nature and social value of s operation
4. Nature, utility, and social value of s use and enjoyment which
have been invaded.
5. Suitability of locality for s operation
6. Suitability of locality for use makes of his property
7. Extent, nature and frequency of harm to s interest
8. Priority of occupation as between parties
9. Other considerations arising from the evidence.
- Different from trespass because trespass requires invasion, and
nuisance does not.
- Temporary Nuisance: activity may be enjoined by the court because it
can be abated (equitable remedy). Damages may be available.
- Permanent Nuisance: cannot be abated and leads to an award of
damages.
Proving Value and Lost Profits
- Value (FMV, replacement less depreciation, or capitalization of
earnings.
- Expectancy: benefit of the bargain. Usually contract situations.
- Reliance: out of pocket.
- Broad Evidence Rule: courts will receive any evidence logically
tending to show actual value.
- Value is a matter of opinion.
- In determining the actual cash value of a building the court should take
into consideration: the cost of restoration or replacement of building
less depreciation since it was erected, any element of obsolescence,

the size of the building, the material of which it is composed, and its
age and state of preservation.
Lost Profits
- New Business Rule: when a business is in contemplation, but not
established nor not in actual operation, profit merely hoped for is too
uncertain and conjectural to be considered. Bar to recovery. This is the
old rule.
- Modern Approach: the courts will view the new business rule as a
rule of evidentiary sufficiency rather than an automatic bar to recovery
of lost profits by a new business.
- It is now a rule of evidence.
- Proving Lost Profits:
1. Profits must have been prevented or lost as a natural consequence
of the breach of contract. Causation.
2. Foreseeability
3. The lost profits must be established with reasonable certainty.
- Means of proving prospective profits:
1. Yardstick method of comparison with profit performance of business
similar in size, nature, and location.
2. Comparison with profit history of s successor, where applicable.
3. Comparison of similar businesses owned by the himself.
4. Use of economic and financial data and expert testimony.
Economic Loss Rule
- Prohibits recovery for purely economic loss in tort, as such claims are
instead governed by contract law.
- The rationale for the ELR is that the sale of goods is accomplished by
contract and the parties are free to include, or exclude, provisions as to
the parties respective rights and remedies, should the product prove to
be defective; to give a party a remedy in tort where the defect in the
product damages the actual product, would permit the party to ignore
and avoid the rights and remedies granted or imposed by the parties
contract.
- In NC, the ELR does not limit the tort actions that arise in the absence
of a contract.
- The ELR will also not apply in fraudulently entered into contracts.
Midterm
- Strength of the proof as opposed to how youre going to prove the
case.
- Dont give conclusions.
- What are the possibilities and contingencies?
- What is the goal of the settlement offer?
- Do not analyze in terms of fairness.

Insurance Companys Duty to Defend

Nationwide Mutual Fire Insurance Company v. Bourlon (2005): this case

was about how the attorney-client privilege is relinquished when an
insurance company provides an attorney for the insured.
o Claims: personal injuries, malicious prosecution, abuse of
process, and punitive damages. These were the underlying
claims by the man whose face was bitten by the dog.
o Insurance policy did not cover the last two claims. The would
defend the entire lawsuit.
o Tripartite relationship exists between all three.
o Once the sued them, the attorney client privileged
disappeared.
- Cramblett v. Midwest Sperm Bank (2014): wrongful birth and breach of
warranty claims against the sperm bank for giving the woman the
wrong sperm. They gave her the sperm of a black man instead of a
white man, so now she has a mixed race child.
Missed Class Topics: Privacy, invasion of privacy, fraud, breach of fiduciary
duty, false misrepresentation.
INJUNCTIONS & EQUITABLE RELIEF
- Things the courts will look at before granting an injunction:
1. The issue must be ripe (a real threat of injury to the ):
o Test: reasonable likelihood of future harm.
o Requires a substantial or realistic threat of harm, a showing that
the personally will be harmed, must show that the harm is
imminent or immediate.
2. Propensity: will the continue to violate the law.
3. Mootness: when the voluntarily stops the action, but the action
could occur again.
a. Test: mere probability.
4. Scope:
5. Irreparable injury
6. Undue hardship and public interest.
- When can you get an injunction?
o Inadequacy of a remedy at law (damages)
o Irreparable injury
o Balance of hardships
o Public interest
o Ripeness (immanency of harm/propensity)
- Damages may only be available after the harm has occurred.
- Prophylactic relief: enjoin conduct/action, create new programs/prevent
reoccurring violations, monitoring the s compliance, require the to
get advanced approval for future actions.
Irreparable Injury Rule
- Does not mean serious injury, just means that whatever is going to
happen cannot be remedied at law.

An adequate legal remedy must be as complete, practical, and efficient

as the equitable remedy.
- Preserving the status quo: preserve the relative position of the parties
until a trial on the merits or the last peaceable uncontested status.
Lee v. State of Oregon (1994)
- wanted an injunction to enjoin the state form putting into effect the
assisted suicide law.
- : two physicians, four terminally ill patients, and the resident care
facility.
- Standing:
o Must have sufficiently alleged a case or controversy. Also show:
They have suffered an injury in fact or an invasion of a
legally protected interest which is concrete and
particularized and actual or imminent.
There is a casual connection between the injury and the
challenged conduct.
It must be likely that the injury will be redressed by a
favorable injury.
o Third party standing: This is how the physicians and residential
homes get standing.
The litigant must have suffered an injury in fact giving
them a sufficiently concrete interest.
The litigant must have a close relationship to the third
party
There must exist some hindrance to the 3rd partys ability
to assert their own right.
- To get preliminary injunctive relief:
o The moving party will suffer irreparable injury if the relief is not
granted.
o The moving party will probably prevail on the merits.
o In balancing the hardships, the non-moving party will not be
more harmed than the moving party
o Granting the injunction is in the public interest.
o This is a sliding scale determination.
- Death is an irreparable injury. Court issued the injunction so that the
constitutionality of the law can be considered.
In re the Marriage of Weiss (1996)
- The father asked for an injunction stopping his ex-wife from exposing
their child to her faith as opposed to the Jewish faith.
- The couple in this case had joint legal and physical custody..
- There must be harm that the court can look at.
Chalk v. Orange County Dept. of Education (1988)
- The wants to be restored to his teaching job. The school put him in
an administrative position after his diagnosis of AIDS.
- He cited his emotional and mental harm as his irreparable harm.

Undue Hardship
- Compares the burden on the and the burden on the .
- Considers the burden on the court (a requirement for ongoing
supervision) and the cost to the .
- If the burden on the is disproportionate to any benefit the will
receive.
Preliminary and Permanent Relief
- Temporary restraining order(do not have to give the other person
notice)-preliminary injunction-trial on the merits-permanent injunction
- Four part test for a preliminary injunction:
1. Likelihood of success on the merits
2. Irreparable injury absent the temporary relief
3. Balancing the hardships
4. Public interest
- Must give notice to the opposing party, in NC it is five days notice.
- TRO (emergency remedy): doesnt need notice (neither written nor
oral) if immediate injury will occur before the adverse party can be
heard and the movant attorney certifies in writing any efforts to give
notice and the reasons why it should not be required.
o FRCP 65(b): lists the federal requirements.
o It can only last 14 days, in NC it is only 10 days.
o Motion for the preliminary injunction must be set for the earliest
time if the TRO was given without notice.
o Movant may have to pay a security deposit in case the TRO was
improper and the suffers damages.
o Contents: Why its issued, states the terms specifically, and
describe in reasonable detail the acts restrained or required.
o Binds the parties after they have notice of the motion: parties
o Ex parte TRO, when? When the subject matter could be
destroyed or moved beyond the courts jurisdiction if notice was
to be given.
o must be served in order for the TRO to be binding.
o You have to give all of the known material facts to the court
because you are an officer of a court. The court is relying on you
to make an informed decision.
o Service: in person, by fax, and some informal (like a phone call).
o What if it lasts more than 14 days, as the what are your
options?
Appeal it, on a theory its a prelim injunction
Ignore it, on the theory it has expired.
File a motion with the trial judge asking them to vacate the
order, if denied then file an appeal.
o NCGS 1-485 for preliminary injunction

Injunction Bonds: its not very clear what the bonds cover. IT is a
source of funds to ensure that the will be able to pay all or part of
the cost of the damages if the PI is wrongly issued. Generally, the is
only liable up to the amount of the bond.
o Is it mandatory? Under the FRCP it is.
o Amount? Whatever the court deems is proper.
o Factors? Loss to the , financial hardship to the , public interest.
- Whos at fault for an erroneous injunction? The court or the plaintiff?
- If a case is removed federal court, then the FRCP will control the
duration of the TRO.
Permanent Injunctions: must show that
1. It has suffered an irreparable injury
2. Remedies available at law are inadequate to compensate for that
injury
3. Consider the balance between the and
4. Public interest would not be disservice by a permanent injunction.
- This is a discretionary balancing test.
Muffet v. City of Yakima (2012)
- wanted to open a strip club in the city.
- The city denied his zoning request.
- says that he met all of the requirements for the zoning, but the city
still refused to grant him approval.
- argues that they had too much discretionary power.
- Nude dancing is protected speech, and so if the government is going to
restrict it, they need to have a real good reason.
- What was the basis for the relief? The court found that the ordinance
was unconstitutional and enjoined them from applying the procedural
steps.
- Compensatory damages? Lost profits: reasonable certainty of the
damages that he is losing. They provided an expert witness accountant
that determined the amount of profit the was losing by not being
able to open the club.
John Doe & Jane Doe v. Banos (2010)-Complaint
- The school has a policy that says that there is a 24/7 drug and alcohol
policy that parents are required to sign otherwise the child cannot play
sports.
- The father signs it but crosses out the 24/7 portion.
- asked for compensatory and punitive damages, attorneys fees, etc.
- The court said that the s did not hurt the s first amendment rights.
- Playing lacrosse is not a property or liberty interest.
Declaratory Judgments
Kramer v. Thompson (1991)
Equitable Defenses
- Defense of Laches
o People that sleep on their rights will lose them.

o Constructive Notice: the plaintiff should know about the violation.

Five year window to file the lawsuit.
o SOL? Gives you the presumption that there was an unreasonable
delay on filing the lawsuit.
o Prejudice? The would have changed his position of the had
not delayed in filing.
- Traditional Application: (1)unreasonable delay by the (2)causing
material prejudice to the
- Concurrent Remedy Rule
- Unclean Hands
o Has to be related to the activity that you seek to enjoin.
o Applied to facts involving only two parties and one transaction.
- In Pari Delicto
o In equal fault
o bears at least substantially equal responsibility for the
violations he seeks to redress.
- Waiver
o The knowing and voluntary relinquishment of a right.
- Equitable Estoppel
Contempt
- Certified: The judge has to see or hear the contempt.
- Rule 42 of FRCP
- Based on an Effect Test
1. Criminal Contempt
o Indirect: conduct that does not occur in the presence of the court
and therefore is not within the personal observation and
knowledge of the judge.
o Direct: occurs in the court room in front of the judge. Court can
punish it immediately.
2. Coercive
3. Compensatory