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Remedy
Remedy Laws
149
Law
Graduate
04/23/2013

Additional Law Flashcards

 


 

Cards

Term
Three Sources for Remedial Rights
Definition
1. statutes
2. federal and state constitutions
3. common law
Term
To receive remedy, plaintiff must establish -->
Definition
1. the particular remedy is appropriate
2. the source may place some limitations upon the remedy
Term
Types of Remedies
Definition
1. coercive remedies
2. damages
3. restitution
4. declaratory remedies
Term
Preventative Injunction defined
Definition
a court order designed to avoid future harm to a plaintiff by controlling a defendants behavior

can be either prohibitory or mandatory
Term
What is the jurisdiction over an injunction
Definition
court maintains jurisdiction over the case while defendant attempts to comply with the order
Term
test for preventative injunctions
Definition
1. remedy at law must be inadequate
2. plaintiff will suffer irreparable harm
3. must balance the hardships of the plaintiff against the hardships the injunction will create for the defendant
4. public interest must be considered
Term
Requirements for Inadequacy of Remedy at Law
Definition
met if damages would be too speculative or if multiple damage actions would be necessary because of the nature of the plaintiff's rights
Term
When will a court find the remedy at law to be adequate
Definition
the harm can be easily and accurately ascertained in a single action

1. usually happens when the plaintiff has suffered the entire injury by the time of trial and condition giving rise to the harm has abated
2. courts will find the remedy at law adequate where the conditions causing the harm is continuing but can be easily rectified
Term
For inadequacy of remedy at law for trespass plaintiff must show
Definition
1. continuing trespass - p must show that the defendant will not honor a demand to vacate
2. repeated trespass - p must show that d is likely to continue to repeat the invasions in knowing violation of the plaintiffs rights
a. plaintiff may demonstrate likelihood of future invasions on the basis of the past behavior or on other grounds
b. whether p has communicated a request to stop trespassing is also relevant
Term
Irreparable harm defined
Definition
remedy at law is inadequate precisely because the harm is irreparable and damages do not suffice

looks to the severity of the harm
Term
Blacks dictionary definition of irreparable harm
Definition
includes an injury whether great or small, which ought to be submitted to or inflicted on the other and which because it is so large or so small, or is of such constant and frequent occurrence or because no certain pecuniary standard exists for the measurement of damages, cannot receive reasonable redress in a court of law
Term
Irreparable harm requirements
Definition
must be great in nature

1. irreparable harm should not be subject and should establish a real threat not the possibility of a threat
2. irreparable harm will be found if it is foreseeable as long as it is truly imminent

[great danger determined on a case by case basis]
Term
balancing interests and practicality considerations
Definition
A judge weighs the relative hardships of the parties in the matter and may consider any problems of practicality in enforcing an order
Term
What must the judge weigh in balancing interests and practicality considerations
Definition
what is the burden of the plaintiffs v. the burden the defendants will have if the injunction is put in place

if hardship for defendant is greater there is less likelyhood the court will grant the injunction
Term
Speech injunctions when balancing the hardships
Definition
- a noneconomic burden (if granted the injunction must be narrowly tailored to withstand constitutional scrutiny)

Test: reason for injunction v. value of the first amendment
Term
To gain an injunction against a private nuisance
Definition
a plaintiff must establish more than the existence of an intentional nuisance

unreasonableness of the activity must be established because it is an undue hardship to stifle a useful enterprise at a reasonable location by injunction
Term
Public interest standard for injunctions
Definition
a. an injunction will be denied if it is contrary to a public policy
b. an injunction will seldom be granted solely if it is in the public interest
c. if injunction affects the integrity of the tribunal
Term
Forms of public interest
Definition
when the plaintiff is the govt, public interest is the centerpiece of the litigation in a much more direct manner
- it is up to the judge to determine whether govts actions are in the best interest of the public
Term
Interlocutory Injunctions are used when..
Definition
P needs immediate court action to avoid irreversible loss
Term
Types of Interlocutory Injunctions
Definition
1. Temporary restraining orders
2. the preliminary injunction
Term
TRO defined
Definition
a brief stop-gap measure for a truly urgent situation to preserve the status quo long enough for a preliminary injunction hearing
Term
When can a TRO be ex parte
Definition
only upon a specific showing that immediate and irreparable harm will result before the opposing party could be notified or heard
Term
Can TRO's be issued without notice?
Definition
TRO's can be issued without notice to the opposing party under exceptional circumstances

must demonstrate that there will be irreparable harm before the opposing party could be notified or heard

if not justified the court will dissolve a TRO
Term
How long can a TRO last
Definition
can last for ten days with an extension as long as approved by the non-movant party
Term
Preliminary injunction defined
Definition
replaces the TRO after the court has had a few days to receive some greater amount of evidence in the case. Lasts until the full trial
Term
basic goal of the preliminary injunction
Definition
to preserve the status quo
Term
How to determine the status quo
Definition
the courts will sometimes look to what the last agreeable situation was between the parties
Term
When can preliminary injunctions be issued
Definition
can only be issued after the opposing party has received notice and had an opportunity to be heard

can appeal immediately
Term
Traditional Test for Preliminary Injunction
Definition
Burden of Proof lied with the Movant and needed to establish each area individually:

a. likelihood of success of the merits
b. an irreparable injury if the relief is delayed
c. a balance of hardships favoring the movant
d. a showing that the injunction would not be adverse to the public interest
Term
Minority test for preliminary injunction
Definition
sliding scale test:

1. movant must show:
- success on the merits AND
- some irreparable harm or a serious question on the merits AnD
that the balance of hardships tips decidedly in its favor

the greater the potential irreparability of the harm and the clearer the balance of hardships without the order, the lesser the required showing of strength on the merits of the case
Term
Success on the merits defined
Definition
the success on the merits is only a probability -- does not guarantee the end of the case
Term
Types of Modern injunctions
Definition
reparative
prophylactic
structural
Term
restorative injunction
Definition
operates to correct the present by undoing the effects of a past wrong
Term
prophylactic injunction
Definition
to safeguard P's rights by directing d's behavior so as o minimize the chance that wrongs might occur in the future. Like prophylactic medicine, require the defendant to take extra steps of safeguards to ensure against the repetition of future harm
Term
Structural Injunctions
Definition
courts in certain cases have undertaken supervision over institutional policies and practices were constitutional violations exist in institutions

typically involve long and costly battles that frustrate class plaintiffs, defendants and judges

should not be broad and disconnected from the legal harm
Term
Specific performance goal
Definition
to preserve the respective interests and intentions of the parties in contracting
Term
Steps for Specific performance
Definition
1. need to show that a substantive right has been violated
2. entitlement phase - are they entitled as a matter of law
3. measuring phase in terms of remedy
Term
Test for specific performance
Definition
1. inadequacy of available legal remedies
2. the likelihood of future performance by the party seeking enforcement of the contract
3. the ability of the breaching party to render performance
4. the balance of interests and relative hardships of the contracting parties
5. and potential difficulties in supervision or enforcement of the decree
Term
Specific Performance for rendering personal services
Definition
Cts. generally refuse specific performance for rendering personal services
Term
Specific Performance will be denied when
Definition
1. in situations involving mistake
2. grossly disproportionate consideration
3. duress OR
4. other unreasonable hardship
Term
Historic Mutuality of remedy rule:
Definition
specific performance would not be available to one party unless that remedy was equally available to the other contracting party
Term
Modern Mutuality of Remedy rule:
Definition
treats mutuality of remedies as just one factor in deciding the propriety of specific performance
Term
Replevin Action
Definition
remedy at law which would override specific performance

an action for goods wrongfully taken or detained and allows a party entitled to possession to obtain recovery of the property in specie along with the damages for the loss of use of the goods during the period of detention
Term
UCC --> Unique Goods
Definition
provides specific performance in unique goods and other proper circumstances
Term
what is intended by the other proper circumstances for unique goods under the UCC
Definition
intended to encompass contract matters outside of heirlooms,such as output and requirements contracts where alternate sources or markets are not readily available
Term
Common Law --> Unique Goods
Definition
requires virtually one of a kind goods
Term
to satisfy the uniqueness standard for common law
Definition
where no commercially reasonable substitute is readily available without undue expense, difficulty or delay
Term
Unique Land
Definition
the purchaser of land should receive specific performance for the land even when there is a second contract for conveyance because land is incapable of duplication and therefore each parcel is regarded as unique
Term
Personal association idea
Definition
the concept of uniqueness may range from intrinsically one-of-a-kind irreplaceable items such as family heirlooms or may be defined in relationship to the particular needs and purposes of the parties to the contract
Term
Equitable defenses include
Definition
laches, estoppel, unclean hands, and unconscionability
Term
Laches defined
Definition
affirmative defense which bars a plaintiff who has not acted promptly in bringing his or her claim
Term
requirements of laches
Definition
1. the claimant had an unreasonable delay in asserting rights AND
2. the delay would operate to unduly prejudice the defendant

traditionally not usable against the govt, but today can be used to preserve the rights and property from negligent acts of public policy
Term
Estoppel defined
Definition
detrimental reliance
Term
Estoppel rules
Definition
will not grant equitable relief to a claimant where an innocent party detrimentally relied upon the claimants prior misrepresentations or actions
Term
To establish estoppel, person seeking equitable relief MUST have
Definition
1. misrepresented or concealed material facts
2. knew that represented facts were untrue
3. intended that person claiming estoppel would act upon the representations
Term
To establish estoppel, person seeing estoppel MUST have
Definition
1. not known that the representations were misrepresented when they were made
2. reasonably relied upon representations i good faith
3. party claiming estoppel would be prejudiced by her reliance
Term
Unclean hands/unconscionability
Definition
bars plaintiffs whose claims are in some way morally tainted even if they are legally sound
Term
unclear hands defined
Definition
must be serious, but does not need to rise to the level of fraud/illegality. if found only bar equitable relief
Term
Test for unclean hands
Definition
1. the claimant engaged in serious misconduct WHICH IS
2. directly related to the same transaction forming the basis for which relief is sought
Term
Unconscionability defined
Definition
common law and statutory contract claims only
Term
Courts reaction to Unconscionability
Definition
when the court finds that a contract terms are so one sided the court has options:

1. find the entire contract unenforceable
2. remove the objectionable provision
3. simply limit its effect
Term
Unconscionability
Definition
Procedurally: considers manner of contract formation whether it was inherently flawed
2. substantive: look at terms of contract to determine if consideration exchanged was excessively lopsided
Term
Election of remedies
Definition
does not have to be a clear definitive accept by the plaintiff, if accept something from the defendant you may overrule the possibility of a remedy

some courts have allowed the doctrine to extinguish a substantive cause of action even before the plaintiff filed suit even if the plaintiff never intended to make he acceptance

cannot receive the same remedy from two different parties
Term
Contempt defined
Definition
the method by which courts enforce equitable orders
Term
factors for contempt
Definition
1. was the conduct for contempt willful, intentional conduct
2. remember it must be under a court order
3. pay attention to how the sanction are written -- can a person resolve the issue (civil) if not then it is criminal and if indirect need proper procedures
Term
Contempt: Walker Problem
Definition
1. D cannot willfully violate an injunction then defendant against a contempt citation that the injunction is invalid
2. an injunction must be obeyed until declared invalid
Term
Purpose of Criminal contempt
Definition
1.vindicate social interest in obedience to lawful court order
2. preserve the integrity of the court
Term
Substance of criminal contempt
Definition
contemnor must intentionally violate a clear/specific court order
Term
Procedure of Criminal contempt
Definition
an independent action, separately docketed

1. complainant is the state
2. sanctions survives if prior injunction is vacated
Term
Types of criminal contempt
Definition
direct and indirect
Term
Direct criminal contempt
Definition
1. no right to counsel
2. in presence of the court
Term
to determine in presence of the court for purposes of direct criminal contempt
Definition
1. nye test
2. adams test
3. rule 42
Term
Nye test
Definition
geographical proximity defines contempt
Term
Adams test
Definition
movable presence of court
Term
rule 42
Definition
a criminal contempt may be punished if:
1. judge certifies that the judge saw or heard the conduct AND
2. it was committed in the actual presence of the court
Term
Indirect criminal contempt
Definition
defiance toward the court through disobedience of a lawful court order
Term
Requirements for Indirect Criminal contempt
Definition
1 valid order enjoining the party to act/refrain from acting
2. notice to party of specific terms of injunction
3. ability of party to comply with order
4. intentional/willful noncompliance without justification


must absolutely be afforded constitutional protections for criminal indirect contempt
Term
Sanctions of criminal contempt
Definition
determinable fines are payable to the state
fixed punitive fines are always criminal
coercive fines - if not purgeable, then criminal
-preannounce per violation
-involving indirect contempt of complex injunctions
-involving serious contempt

appellate review -- criminal contempt is appealble and can be reclassified
Term
Civil & Coercive Civil Contempt purpose
Definition
1. designed to encourage the defendant to act a certain way in the future
2. if a defendant can avoid punishment by acting a certain way then the sanction are considered purgeable which makes the contempt civil vs criminal
Term
Purpose of compensatory civil contempt
Definition
to pay P for loss caused by D's disobedience to injunction
Term
purpose of coercive civil contempt
Definition
to induce d's future compliance with prior injunction
Term
Substance of civil contempt
Definition
1. injunction must be clear and binding
2. impossibility/incapacity are possible but not absolute defenses (good faith is not a defense)
Term
Sanctions of Civil contempt
Definition
compensatory damages - proven by P with reasonable certainty (always civil)

coercive fines - indeterminate amount - payable to State (if purgeable = civil)

coercive confinement -- indeterminate duration (d has keys in his pocket)
Term
Enjoining speech or litigation
Definition
When courts grant prior restraints of speech, the injunctions must be -->

1. narrowly tailored AND
2. meet due process standards to enforce them with contempt
Term
Enjoining Crimes and Nuisances
Definition
plaintiff must establish that the defendants conduct was a substantial and unreasonable interference with the use and enjoyment of the plaintiff's property or public interests
Term
unreasonable interference determined by:
Definition
weighing the gravity of the harm against the utility of the plaintiff

THen if met:
- plaintiff must demonstrate --
1. that the threatened harm is immediate
2. that the injury is irreparable
3. that no adequate remedy at law exists AND
4. equitable considerations balance in its favor

important factors for balancing:
1. extent to which a damages award will redress he injury and
2. considerations of the nature and extent of public interest implicated
Term
Restitution defined
Definition
civil liability based upon unjust enrichment

is often added remedial option for plaintiff who has a claim in contract or tort, but sometimes it is the sole remedy available to a plaintiff
Term
The Unjust enrichment concept
Definition
1. to prevent the unjust enrichment of a party who has received a benefit that in equity and good conscience should not be retained
2. not necessary to prove tortious, illegal, or fraudulent conduct by the defendant to establish that the enrichment is unjust
Term
To grant restitution
Definition
1. must demonstrate that received a benefit, that by recipt of the benefit he unjustly enriched at the expense of another and the circumstance were such that in good conscience appellant should make compensation
Term
restitution for value of services rendered available in
Definition
1. implied in fact contract
2. quasi contract
Term
implied in fact contract
Definition
true contract proved by circumstantial evidence rather than by express written or oral terms
Term
Quasi-contract
Definition
duty imposed in equity upon a party to repay another to prevent his own unjust enrichment

a legal fiction that implies a contract at law as a basis for awarding monetary relief
Term
Quantum Meruit defined
Definition
claim to recover the value of services rendered
Term
Majority rule for quantum meruit
Definition
if someone sues for quantum meruit for partial performance of a contract she is not suing under the contract and thus the value of the services is measured by the contract value

allows for recovery of the reasonable value of beneficial services rendered or materials furnished under circumstances not covered by express contract where retention of the benefit would constitute unjust enrichment
Term
Requirements for recover under QM
Definition
1. claimant furnished valuable services or materials
2. for the person sought to be charged
3. the services and materials were accepted, used and enjoyed by the person sought to be charged
4. the party who provided the services or materials did so with the reasonable expectation of receiving compensation
5. the party who accepted the services had reasonable notice that compensation for the benefits would be expected
6. retention of he benefit without payment of reasonable compensation would constitute unjust enrichment
Term
five factors in measuring restitution
Definition
1.the increased assets in the hands of the defendant from the receipt of property
2. the market value of services or intangibles provided to the defendant without regard to whether the defendants assets were actually increased, that is the amount which it would cost to obtain similar services, whether the services prove to be useful or not
Term
benefits acquired by agreement or mistake
Definition
1. wrongful conduct not required
Term
situations in which a mistake may serve as the basis for restitutionary relief
Definition
1. overpayment of debt
2. improvement of property under the mistaken belief or ownership and
3. mistakes about the formation or performance of a contract
Term
Waiver of tort & assumpsit
Definition
basically you waive our right to sue for the tortious damage and sue for the amount under the restitution damages (benefit to expand the SOL)
-uses quasi contracts to relieve unjust enrichment
- can be used against a thief
Term
Tests for waiver of tort
Definition
1. money had and received
2. goods sold and delivered
Term
money had and received test
Definition
used for quasi-contract in order to create a fictional agency relationship between the wrongdoer who converted property and its owner
Term
goods sold and delivered
Definition
quasi-contract theory then is for an implied contract of sale between these parties for purchase of the converted item at its fair market value
Term
Property torts you can wave to sue in assumpsit
Definition
1. conversion
2. trespass to chattel
3. trespass to realty


cannot waive defamation
Term
constructive trusts defined
Definition
a flexible restitutionary device that imposes an equitable duty on the defendant to convey property acquired under certain circumstances to the rightful owner
Term
factors of a constructive trust
Definition
1. imposed to benefit a party that had wrongfully been deprived
2. fictional relationship
3. a constructive trust is only an appropriate remedy when the benefit that has been acquired is a result of entirely the unjust enrichment on the claimant
Term
ways of unjust enrichment that can be used under a constructive trust
Definition
1. breach of fiduciary or confidential relationship
2. acquisition of title to property by fraud
3. various other wrongdoings
4. mistake
5. duress
6. embezzlement
7 conversion
8. misuse or misappropriation of information
Term
Defendants title placement in a constructive trust
Definition
defendant has legal title and defendants title was gained through use of misappropriated property
Term
equitable lien
Definition
defendant has legal title to the benefited property
Term
increased value
Definition
a constructive trust allows the claimant to obtain any increase in value of the embezzled/misstaken property
Term
Equitable liens defined
Definition
operates as an encumbrance on property -- available only when the P can trace misappropriated property to its product
Term
when is an equitable lien the preferred remedy
Definition
1. when the property has declined in value And
2. when there is not a severable interest in the defendants property against which the plaintiff is making the equitable claim

wrong must be connected to the property itself
Term
Declaratory judgment defined
Definition
gives courts the power to determine the rights or legal relations of parties to a justiciable controversy
Term
what are parties required to have in order to get a declaratory judgment
Definition
there must be genuine conflicting claims capable of a justiciable controversy
Term
to determine whether there is a controversy
Definition
1. a court should consider whether there exists an immediate controversy between parties having adverse legal interests
2. must be ripe
3. also consider prudential factors including whether the declaration will serve a useful purpose and will effectively settle the controversy
Term
Tort damages purpose
Definition
to make injured parties whole
Term
Harm to personal property
Definition
when there is a market for the item, courts tend to use the market value in 3 scenarios
Term
3 scenarios for harm to personal property
Definition
1. where the personality is destroyed at the time and place of destruction (from conversion)
2. where the property is damaged but not destroyed and repairs and costs are economically feasible -- plaintiff usually gets the cost of repair
3. the chattel is damaged and not destroyed but the repair costs is not economically feasible -- plaintiff doees not get the repair costs
Term
Formulas for distinction between property destroyed and property damaged
Definition
1. pre-damage value minus salvage
2. fair market value before tort minus fair market value after the tort (plaintiff gets the difference)
Term
Destroyed property
Definition
if there are multiple markets where plaintiff can get replacement item, court should use the market the plaintiff would use to get replacement item

usually get fair market value for destroyed property
Term
fair market value defined
Definition
the price a willing buyer and seller would find in an arm's length transaction with each party fully informed

if damages exceed value of property prior to incident to cause damage then the court is most likely going to give value at the time right before the destruction fo the property
Term
If lack of fair market value
Definition
a. most common for unique personal property

majority: allows the owners to recover the actual value of the property to the owner even if it exceeds market value
Term
to prove value if no market:
Definition
owners can use:
1. replacement costs
2 depreciation
3. expert opinion
4. amount of insurance carried on the item

sentimental value is not included, court rejects replacement value in second hand market
Term
Pets
Definition
majority: limit recovery to the fair market value of the actual value of the pet death (cannot recover for emotional distress, sentimental attachment or loss of compansionship its owner suffers)

sometimes companionship/mental anguish may get more -- loss of use (more value for breeds or service animals)
Term
Clothing/Household goods:
Definition
1.measured at the persona value of the owners, but cars are valued at fair market value
2. replacement cost is a factor to be considered in determining the actual value to the owner along with the original cost of the property, the quality and condition at the time of loss and depreciation
Term
Cars
Definition
measured at the fair market value

some courts allow for recovery for both the cost of repairs and diminished value under the limited circumstances where a plaintiff could show actual proof of diminished value following repair and that the automobile had significant value prior to accident
Term
irreplaceable property
Definition
courts consider factors such as the original cost, the cost to replace or reproduce and the age and condition of the item at the time of loss or destruction
Term
objectively sentimental property
Definition
permitted recovery of sentimental value to whose primary value is sentiment because there can be a notion of value that can actually be assessed
Term
duty to mitigate damages
Definition
plaintiffs have a duty to mitigate damages including damages from loss of use
Term
Burden for showing loss
Definition
Plaintiff: shown by
a. expert testimony
b. owners opinion
2. can be rejected if speculative
Term
reparable personal property
Definition
owner is entitled to recover the cost of repair if economically feasible -- if not economically feasible -- p can recover he diminuation in the value of the property
Term
loss of ues
Definition
damages intended to compensate plaintiff's for the loss of the use of their property while the property was being replaced
Term
how to demonstrate the cost of loss of use
Definition
1. the reasonable cost of renting a substitute
2. the rental value of the damaged property or
3. the profits that could have been made from the use of the property
Term
personal injury damages given
Definition
1. pain and suffering (only general and do not have to plead)
2. loss wages and impair future earning capacity
3. medical expenses
4. economic earnings
5. loss of consortium (derivative action available to spouse)
Term
Types of personal injury damages
Definition
general: for the natural course of events from the injuries in the complaint
2. special -- future medical expenses
must be plead and proven with particularity and typically require expert testimony to support
Term
Medical expenses
Definition
past -- have to show the expenses under a reasonable standard
future -- reasonably certain, show cost and should be measured at present value (includes being measured by life expectancy)
Term
unemancipated minors
Definition
1.both parents and minors have a cause of action
2. courts generally divide the elements of damages between the actions appropriately
3. double recovery for the same damage not permitted
Term
Future earnings
Definition
lost wages are for a plaintiff lost wages from a specific job for a period of time in which the plaintiff is unable to work because of her injuries and envision that the plaintiff will be able to return to a job
Term
Future earnings for permanent injuries
Definition
calculated for the time period of the injured party's work life expectancy

takes into account:
1. skills and training
2. broader industry factors and opportunities
Term
Diminished earning capacity
Definition
1. compensates a plaintiff for narrowing of the range of her economic opportunities as a result of her injuries
2. damages for lost or diminished earning capacity compensate injured plaintiffs for reductions in the market value of their services in the workplace in general
3. measured by the reduction in the value of the power to earn rather than the difference in earnings
Term
To determine earning capacity
Definition
measured by the difference between the injured plaintiff's earning capacity before the injury and after the injury
Term
pain and suffering
Definition
general damage award
because it is indeterminable, courts apply all sorts of different statutes to aid in making sure that plaintiff's pain and suffering is not excessive
Term
loss of consortium
Definition
1. derivative claim
2. based on claimants emotional suffering as a result of the injured plaintiffs injuries
Term
loss of consortium includes
Definition
1. love
2. companionship
3. affection society
4. comfort
5. services
6. solace
Term
claims for damages for injuries resulting in death
Definition
survivors and wrongful death

almost exclusively statutory with limited damages
Term
elements that must provide the following elements
Definition
1. pecuniary losses to the surviving spouse and children
2. medical and burial expensees and
3. loss of consortium and grief of the surviving spouse
Term
purpose of punitive damages
Definition
to punish and deter only egregiously bad conduct
Term
punitive damages available when
Definition
the defendant acts with a malicious intent or an evil motive such as spite, ill will, malice or the intent to injure or defraud or where the defendants act with gross recklessness or a willful disregard for the rights of others
Term
Factors considered by the judge when determining the amount of punitive damages
Definition
range from the relationship of harm and the amount of punitive damages and the defendants net worth
Term
Conduct that gives rise to punitive damages
Definition
malicioius, wanton, willful, or sufficiently egregious conduct
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