Remedies in Tort Law

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 What Are Some Possible Remedies in Tort Law?

A tort is a civil wrong. Any person who commits a tort will be punished according to provisions in tort law. When a party has something taken away from them by another party, they have been aggrieved. When a party’s rights are violated, it is punishable by law. Legal remedies are an example of these punishments.

A tort victim may have several possible remedies available under tort laws. A remedy is a relief available to the person against whom any wrong has been committed. The accused party gives such relief.

A tort can be committed against an individual or their property. Certain torts, like nuisance, can occur even if a person does not intend to commit them.

There are three basic remedies in tort law: Legal Remedies (“damages”), Restitutionary Remedies, and Equitable Remedies.

What Are Legal Remedies for Torts?

Also known as “damages,” legal remedies for torts are monetary payments made by the defendant to compensate the victim for their injuries, losses, or pain and suffering. These are calculated according to the victim’s losses rather than the tortfeasor’s gains.

Punitive damages may be added in some types of tort claims. Claimants that win a judgment in court are awarded pain and suffering damages.

What Are Restitutionary Remedies?

Restitutionary remedies are also meant to restore the plaintiff to a position of “wholeness.” Restitution remedies intend to restore a plaintiff as close as possible to their state before the tort occurred.

Restituionary remedies can include:

  • Restitutionary damages: Restitutionary damages are similar to damages, except they are calculated based on the tortfeasor’s gain rather than the plaintiff’s losses.
  • Replevin: Replevin allows the victim to recover personal property they may have lost due to the tort. For example, victims may recover property that was stolen. Replevin can be coupled with legal damages in some cases.
  • Ejectment: Ejectment occurs when the court ejects a person who is wrongfully staying on real property owned by the plaintiff. Ejectment is common in instances of continuing trespass.
  • Property Lien: If the defendant cannot afford to pay damages, a judge may place a lien on their real property, sell the property, and forward the proceeds to the tort victim.
  • Equitable Remedies: Equitable remedies are available where monetary damages will not adequately restore the victim to wholeness.
  • Temporary Restraining Order: Victims of physical harm or harassment may obtain a restraining order, which prevents the defendant from making contact with or coming near the plaintiff.
  • Temporary or Permanent Injunction: An injunction may prohibit unlawful activity by the defendant or order them to take affirmative steps. Injunctions are common in trespassing and nuisance tort claims.

As in any lawsuit, the defendant may raise any available defenses to these types of remedies.

Are All the Types of Tort Remedies Always Available for Every Tort?

No. A large part of any tort lawsuit is set aside for deciding which type of remedy is appropriate for the victim. Generally speaking, restitution and equitable remedies are not available if the plaintiff will claim legal damages. If a monetary payment will make the plaintiff “whole,” there is no need for a court to issue restitution or equitable remedies.

On the other hand, a judge may sometimes issue a combination of different remedies so long as it is allowed by the laws of their jurisdiction. Judges may combine remedies while placing a cap or limit on one of the options. A common combination of remedies is replevin coupled with legal damages.

For example, in a conversion (theft) case, the judge may order replevin so that the plaintiff can get their stolen property back. On top of this, the judge will typically order the defendant to pay compensatory damages for the time that the plaintiff was not able to use the property. This is especially common in cases where the stolen property is equipment or machinery that the plaintiff uses to generate their income. The defendant may then have to pay damages to compensate the plaintiff for lost wages.

What are Judicial Remedies?

When the court is involved in any case, and a remedy is granted to the innocent party, the remedy is known as a judicial remedy.

Judicial remedies in tort law can be classified into:

  • Damages
  • Injunction
  • Specific restitution of property

Damages are monetary compensation given to the aggrieved party. There are two types of damages.

Liquidated damages occur when the amount of compensation is already decided for a particular offense.

With unliquidated damages, the amount of compensation is not fixed. The court decides the amount of compensation according to the nature of the offense. In tort law, there are unliquidated damages.

An injunction is an equitable remedy available in tort law. Injunctions are orders by the court put on a person’s property where a person is restricted to use the property.

For example, if a person has fraudulently acquired someone else’s property and a dispute arises between them, the court can put an injunction on the property, and it cannot be used until the court’s final order.

Specific restitution of property requires the restoration of the property back to the owner. If a person has taken any property of another and a dispute arises between them, the court can order the person who has taken the property to return it.

What Are Extra-Judicial Remedies?

Extra-judicial remedies are provided when the dispute is not settled by the court but instead settled by the disputing parties on their own.

Extrajudicial remedies under tort law include:

  • Self-defense
  • Prevention of trespass
  • Re-entry on land
  • Re-caption of goods
  • Abatement of nuisance
  • Distress damage feasant

It is lawful for a person to use self defense or reasonable force to protect themselves or another person from any wrongful or unlawful act.

It is lawful for a person to use reasonable force to prevent someone from entering onto their property or to take a person out of their property who has unlawfully entered onto their property.

A person wrongfully disposed of their land may retake possession of their land if they can do so peacefully and reasonably.

A person entitled to custody of chattel does not commit a crime or tort by taking it peacefully or with reasonable force from someone who has wrongfully taken it.

The occupier of the land may lawfully terminate any nuisance affecting it by giving notice, choosing the least mischievous method, and avoiding unnecessary damage.

An occupier may lawfully or unlawfully seize any chattel from entering their land or doing damage. The person can detain them until compensation is paid for the damage.

Do I Need a Lawyer for Tort Remedies?

Tort remedies should be chosen in a way that maximizes compensation for the victim. A tort lawyer can help determine which type of remedy would best compensate a tort victim for their losses or injuries. If you suffered losses from a tort, you may wish to hire a lawyer to advise you on the various types of remedies available in your jurisdiction.

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