Chapter 6 and 7

SAME GENERAL TYPE OF HARM BUT UNUSUAL MANNER

A defendant is liable if the harm suffered by the plaintiff is of the general type that made the defendant's conduct negligent even if the harm occurs in an unusual manner

COLLATERAL-SOURCE RULE

A plaintiff is often reimbursed for her out-of-pocket expenses, including lost wages and payments for medical care, by her insurance company. Nevertheless, under the collateral-source rule, she is entitled to recover for these damages again from the defendant. The rule precludes the admission of evidence to the jury regarding payment of benefits to the injured party from a source other than the tortfeasor. In many cases, the company making the plaintiff's payment has a right of reimbursement out of any judgment the plaintiff receives, known as the right of subrogation. Most courts have held that evidence of collateral benefits is inadmissible.

SUPERSEDING CAUSE

A superseding cause supersedes or cancels out the defendant's liability. An "act of God," such as being struck by lightning, is considered a superseding cause, as it is an act of nature that is extraordinary and not foreseeable. See Exhibit 6-3 on page 151. See Ontiveros v. Borak on page 152

Actual cause

Actual cause means that the defendant's actions were the direct, factual cause of the plaintiff's injury.

EXPENSES OF LITIGATION

*Although in England the winning party is entitled to recover her expenses of litigation, including attorney's fees, such is not the case in the United States. *Most personal injury cases are handled on a contingency fee basis, in which the attorney agrees to provide services for a fee based on a percentage of the client's recovery. *If there is no recovery, the attorney receives nothing. A common contingency fee arrangement provides for payment of 33% of the settlement and 40% of a final judgment

INTERVENING CAUSE

*An intervening cause is anything that occurs after the defendant's negligent act and that contributes to the plaintiff's injury. *If the intervening cause rises to such a level of importance that it precludes the defendant's negligence from being the proximate cause of the plaintiff's injury, it becomes a superseding cause. *If the defendant should have foreseen the possibility that an intervening cause or one like it might occur, he or she remains liable

But-For-Test

*But-For Test *The question of whether the defendant was the actual cause of the plaintiff's injuries is usually a factual one. * The "but-for" test is usually used to determine actual cause * Under this test, if the plaintiff's injuries would not have occurred but for the defendant's negligence, the defendant will be deemed the actual cause of the plaintiff's injuries.

SUBSTANTIAL FACTOR TEST

*Concurrent causes are those events that combine (concur) to cause the plaintiff's harm, although either of them alone could cause the harm without any contribution from the other. * Under the substantial-factor test, an alternative to the but-for test, the question is whether the defendant was a substantial factor in producing the plaintiff's injury. *If the concurrent causes produce a single, indivisible harm in which the damage from one event cannot be separated from that caused by the other, the courts have generally found both events to be a substantial factor in producing the plaintiff's injuries.

DAMAGES FOR PHYSICAL HARM TO PROPERTY

*Fair market value is the amount that the property could have been sold for on the open market. *This assumes a voluntary sale by a leisurely seller to a willing buyer. *Note that market value is usually determined on the basis of the market at the place and time that the wrong occurred. *Furthermore, market value constitutes the highest price one seeking to sell the property could have realized and not the lowest price at which it could have been sold.

PROXIMATE CAUSE

*If the plaintiff is successful in showing that the defendant's negligence was the actual cause of the injury, she must then show that the defendant proximately caused the injury. *Some writers feel that the term legal cause is more descriptive because it reflects a judicial concern that limits should be put on a defendant's liability. *This judicial constraint arises from a sense that a defendant should not be liable for a highly improbable or extraordinary consequence stemming from his negligence -to do so would be unfair.

CAUSATION PROBLEMS IN MASS TORT CASES

*In applying the risk-contribution theory to the case the court found that many of the individual defendants knew of the harm caused by the lead carbonate pigments and continued production and promotion of the product. *The court held that each industry defendant contributed to the creation of a risk of harm to the public generally and plaintiff specifically.

IMPAIRED EARNING CAPACITY

*In dealing with past earnings, recovery is relatively simple to calculate if the plaintiff was employed at fixed wages. *If he was unemployed, or if the wages cannot be computed exactly, the plaintiff will have to use circumstantial evidence to show impairment of earning capacity. *Future loss of earning capacity is more difficult to compute. Jurors must first determine how long a plaintiff might be expected to live.

CAUSATION PROBLEMS IN MASS TORT CASES

*Mass torts involving generic products that are inherently toxic present complex causation issues. *The plaintiff is not able to identify the specific product, brand, retailer, or manufacturer because of the generic nature of the product. *The risk-contribution theory has been used to relax the plaintiff's burden of proof to establish causation in a mass tort case where a young boy ingested lead paint resulting in brain damage. *The plaintiff was not able to identify the manufacturer of the paint he ingested

PROOF OF ACTUAL CAUSE

*The plaintiff bears the burden of proving actual causation by a preponderance of the evidence. *If two defendants are negligent but only one could have caused plaintiff's injury, the burden of proof will be thrust back on the defendants to show who actually caused the harm. *Under the theory of alternate liability, as developed in Summers v. Tice, each negligent tortfeasormust prove that his actions did not cause the plaintiff's injuries. *If one fails to make such proof, both defendants will be found liable.

FORESEEABILITY

*The question of proximate cause is basically a question of foreseeability. *Was the plaintiff's injury a reasonably foreseeable consequence of the defendant's conduct? *The difficulty is where to draw the line in holding defendant's liable. See example on page 141. See Palsgraf v. Long Island Rail Co. at page 142

PROOF OF ACTUAL CAUSE

*This theory has been expanded to encompass three or more defendants in the area of product liability. *The so-called market-share liability theory was developed in Sindell v. Abbott Laboratories, to allow recovery to the plaintiff who can show that the defendants were negligent but cannot prove which of the defendants caused the injury.

SHORTENED LIFE EXPECTANCY

Although damages for loss of prospective earnings have been allowed, damages for the shortening of plaintiff's life expectancy traditionally have been denied. Under the common law, damages for loss of life were precluded unless provided for by statute. The courts have reasoned that the same rule must be applicable to damages for a shortened life. A few courts have, however, considered shortening of life expectancy as a distinct compensable harm

EXCEPTIONS TO THE CARDOZO RULE

Although the Cardozo position has generally been followed by American courts, there are a few notable exceptions. Under these exceptions, recovery is allowed even though the consequences are arguably unforeseeable.

DISCLOSURE OF REMARRIAGE

Another issue that arises in wrongful death and survival actions is whether a surviving spouse who remarries is entitled to keep this information from the jury. The concern is that a jury in particular may be inclined to give a lower verdict if it learns of the remarriage. Most courts, however, refuse to allow evidence of remarriage, even if used for a limited purpose

Causation

Causation entails two separate considerations: actual cause (sometimes referred to as causation in fact) and proximate cause (or legal cause).

CATEGORIES OF DAMAGES

Compensatory damages are further divided into two categories: General damages are of the type that generally result from the kind of conduct engaged in by the defendant. Special damages are specific or unique to the plaintiff. A good example of general damages is compensation for pain and suffering. Examples of special damages are medical expenses, lost wages, and future impairment of earnings.

DUTY VERSUS PROXIMATE CAUSE

Courts frequently blur the issues of duty and proximate cause together. The Palsgrafopinion itself was centered around a discussion of duty. A defendant is liable only if her conduct poses a foreseeable risk to plaintiff. Similarly, a defendant owes a duty of care only if there is a foreseeable risk to the plaintiff. Proximate cause is basically a policy question. It allows the courts to cut off liability in cases in which it would be inherently unfair to hold a defendant liable.

CATEGORIES OF DAMAGES

Damages are generally divided into three categories: 1) Compensatory damages are designed to compensate the victim for her losses and to restore her to the position she was in before she sustained her injury. 2) Punitive damages are intended to punish the defendant. 3) Nominal damages are awarded when no actual damages are proved but a tort is shown to have been committed. Because actual damages must be proved in negligence cases, nominal damages are not available in negligence suits

DAMAGES FOR PHYSICAL HARM TO PROPERTY

Damages for physical harm to property are tied to the value of the property. If the property is completely destroyed, damages are measured according to the value of property at the time and place the tort occurred. If the property is damaged but not destroyed, the damages are measured by the difference in value before and after the tort, although the amount cannot exceed the replacement cost. If the plaintiff is merely deprived of the use of the property, damages consist of the value of the use of which the plaintiff was deprived

MAJORITY RULE -CARDOZO

Defendant is liable for all reasonably foreseeable consequences of his negligence. He owes a duty of care to the reasonably foreseeable plaintiff.

MINORITY RULE -ANDREWS

Defendant owes a duty to the world at large and not just to those in "danger zone." Similar to "direct causation": defendant is liable for all consequences flowing directly from his actions no matter how unforeseeable

ATTEMPTS TO CIRCUMVENT THE PHYSICAL-HARM REQUIREMENT

If the defendant's conduct was intentional or willful, the courts have been much more willing to allow recovery for pure emotional distress. A growing number of states have begun to abandon the physical harm requirement if the plaintiff was near the scene of the accident, personally observed it, and was closely related to the victim. See Shipley v. Williams on page 192.

UNFORESEEABLE INTERVENTION

If the intervention was not foreseeable but, in fact, led to the same type of harm as that threatened by the defendant's negligence, the courts typically find the intervention not to be a superseding cause. The reasoning is that the defendant exposed the plaintiff to an unreasonable risk of harm of the same type as that which occurred. Allowing the defendant to escape liability simply because the harm was produced by an unforeseeable intervention would be unfair.

RECOVERY FOR LOSS OF CONSORTIUM

In most jurisdictions, parents can recover for medical expenses incurred as a result of injury to a child. They are also entitled to recovery for the lost services and earnings of a minor child. In cases in which the child has died, more and more courts are allowing recovery for loss of the child's companionship. Typically, children have not been allowed to recover for loss of companionship of a parent who has been injured. A few courts have allowed such recovery when the child is a minor and is dependent on the parent for nurturing and development.

SURVIVAL STATUTES

Injured party's claim survives his death. Damages awarded to deceased's estate

TYPES OF RECOVERY ALLOWED

Many states limit survivor actions to those losses occurring prior to decedent's death. Damages are restricted, therefore, to the decedent's medical expenses, lost earnings prior to death, and pain and suffering. Consequently, in such states, if the death is instantaneous no survival action exists at all because no damages occurred prior to death. Recovery becomes problematic when parents bring a wrongful death action for a child's death. Usually the expense of raising a child far surpasses any earnings the child can be expected to bring home, yet many courts allow recovery of a substantial reward for loss of companionship of the child.

IMPAIRED EARNING CAPACITY

Mortality tables published by insurance actuaries are used in this process. Jurors are also allowed to take into consideration the plaintiff's personal habits, prior health, and individual characteristics in determining plaintiff's projected life span. Experts may testify as to the diminution of plaintiff's earning capacity. Loss of future earnings is applicable only when the plaintiff can show that the injuries are permanent

DEFENSES

Most states allow the defendant to assert any defenses she would have been able to use against the decedent if the decedent were still alive. In such cases, for example, the defendant may argue that the decedent was contributorily negligent or that he assumed the risk. Regarding statutes of limitation, most courts indicate that the death action begins to run from the date of death.

Proximate cause

Proximate cause, in contrast, means that the defendant's conduct was so closely connected to the plaintiff's injuries that the defendant should be held liable If the plaintiff is injured by a bizarre and extraordinary chain of events that is only remotely connected to the defendant's negligence, proximate cause is lacking

PUNITIVE DAMAGES

Punitive damages, which are sometimes referred to as exemplary damages, are designed to punish the tortfeasor and to deter similarly situated wrongdoers. In negligence cases, they can be awarded only when the defendant's conduct is egregious or almost criminal. Punitive damages have been criticized as constituting undue compensation to the plaintiff because they are not related to the plaintiff's injury. Arguments against punitive damages on pages 172 to 173. See Ford Pinto Case on page 173.

DISCOUNTING FUTURE DAMAGES

See page 189. Many courts require juries to reduce, or discount, awards to the present value of lost future earnings. Discounting an award prevents the plaintiff from realizing an unwarranted windfall and reduces losses to the defendant. Some attorneys have argued that inflation offsets the discounting of present-value awards

ASSESSMENT OF DAMAGES

See questions regarding medical expenses, lost wages, property damage, and pain and suffering on page 186. Attorneys can find awards of comparable cases in trial reporters, compendiums, personal injury valuation programs, journals, and web sites.

WHO RECOVERS

Survival actions are usually brought by the executor or administrator of an estate. Recovery becomes an asset of that estate and may be reached by creditors. Recovery for pain and suffering in survival actions is allowed only if the decedent is conscious of pain.

MITIGATION OF DAMAGES

The duty to mitigate damages required under contract law is also required under tort law. Under this rule, also referred to as the avoidable consequences rule, a plaintiff cannot recover for any damages he or she could reasonably have avoided

JURY QUESTION

The issue of proximate cause is a jury question as long as there is a possibility that reasonable persons could differ on this issue. The judge must first formulate the appropriate legal rule in the form of a jury instruction. But once that standard has been formulated, the final decision is a factual one left to the jury.

PLAINTIFF MEMBER OF FORESEEABLE CLASS

The same rationale is applicable when injury occurs to a plaintiff who is not a particularly foreseeable plaintiff. As long as the plaintiff is a member of a class to which there is a general foreseeability of harm, the defendant is liable

WRONGFUL DEATH STATUTES

Third parties can recover for losses they sustain as a result of victim's death. Proceeds go to spouses, parents, or children of deceased.

"EGGSHELL SKULL" RULE

This exception requires that a defendant "take his plaintiff as he finds him." Under the so-called "eggshell skull" rule, if the plaintiff suffers any foreseeable injury, the defendant is also liable for any additional unforeseen physical consequences.

STRUCTURED SETTLEMENTS

Traditionally under the common law, past and future damages were paid in a single lump sum. More recently, large future damages have been paid using a periodic-payment settlement, often referred to as a structured settlement. The downside of these settlements from the plaintiff's perspective is the inability to freely spend the monies.

IMPAIRED EARNING CAPACITY

Two types of recovery fall under the category of impaired earnings: 1) Recovery for past earnings, and; 2) recovery for prospective future losses

RECOVERY FOR LOSS OF CONSORTIUM

Under the common law, a husband and wife were considered one. Therefore, if the wife were injured the husband could recover for loss of consortium, which encompasses recovery for lost services, such as companionship, sex, earnings outside the home, and so on. Evolution of the common law and equal-protection attacks on statutes have resulted in both husbands and wives being entitled to recover for loss of services. A loss of consortium claim is a derivative claim in that it is derived from the spouse's underlying claim. If a husband, for example, is injured in a motor vehicle accident and successfully sues the negligent driver, the wife can then sue for loss of husband's consortium.

WRONGFUL-DEATH AND SURVIVAL ACTIONS

Under the common law, when a plaintiff died as a consequence of injuries inflicted on him by the defendant, his tort action died along with him. At that point, his spouse and children lost any right to recovery. Currently, all states have passed statutes allowing some kind of survival action so that the injured party's claim survives his death. In most states, the cause of death is irrelevant, but in a few states if the death resulted from the defendant's tort, a wrongful death action and not a survival claim must be filed. Similarly, statutes allowing wrongful-death actions have also passed, so that third persons, usually the decedent's spouse and children, can recover for losses they sustained as a result of decedent's death.

MENTAL SUFFERING

When the plaintiff sustains no physical injury, the courts are reluctant to permit recovery for emotional suffering because of a fear that the suffering may be feigned. Many courts have allowed an exception to this general rule in cases involving the negligent mishandling of corpses or in cases involving the negligent transmission of an erroneous message regarding the death of a family member. A small minority of courts follow the impact rule, predicating recovery for mental suffering on the plaintiff experiencing some type of physical "impact