Torts 2 damages

Case against punitive

1. Double jeopardy 2. Punishment yet none of the criminal procedure safeguard 3. Misuses civil system - windfall, not justice 4. Subjective, speculative

when are punitive damages imposed?

Cases of malice, intent, reckless disregard, gross negligence

Punitive damages

Due process clause requires states to provide assurance that juries are not asking the wrong question seeking not simply to determine reprehensibility, but also to punish for harm caused strangers

§904 general and special damages

General damages are compensatory damages for a harm so frequently resulting from the tort that is the basis of the action that the existence of the damage is normally to be anticipated and hence need not be alleged in order to be proved. 1. Special damages are compensatory damages for a harm other than one for which general damages is given.

Lost Wages

Generally, courts award damages for lost earning capacity i. Doesn't matter if in previous years they had not made as much. Its about what they were expected to make in the future. b. inflation must be handled consistently for future wages and discounting for present value. c. Why discount award for future lost wages: i. Time value of money

Wrongful life

child claim that negligent genetic counseling or misdiagnosed led to birth of a disabled child. i. Most states reject this ii. A few states have allow (NJ, CA) iii. Recovery is for extraordinary medical expenses - if not already recovered by parents in wrongful birth action

pecuniary damages

damages that can be estimated and monetarily compensated. (special damages)

Special Damages

pecuniary, out-of-pocket i. Must be proven 1. Property harm 2. Lost wages

What damages are allowed? Survival action

1. Damages between injury and death 2. Damages decent could have recovered - medical, lost wages, etc. 3. Courts split on pain and suffering; definitely no recovery if decedent not conscious

What damages are allowed Wrongful death

1. Definitely pecuniary damages - lost support and other benefits 2. Increasingly lost companionship and affection 3. Most states do not allow recovery for grief at loss

Purpose of Punitive Damages

1. Deterrence - wont have optimal level of deterrence without 2. Retribution - defendant desert; wrongdoing merits punishment 3. Compensation - not all losses are shifted onto defendant; offer at least a dollop more. a. Sometimes even winning plaintiffs lose because of attorneys fees and things like that. So that helps with full recovery.

Case for punitives

1. Helps cover compensatory damages shortfall 2. Extra "dollop" to fully deter: costs to tortfeasor outweigh benefits 3. Make forced transfers uneconomical 4. Not every tortfeasor s caught; overcome natural tendency to discount cost 5. Express indignation and abhorrence - we react more strongly if some acts deliberately or recklessly 6. Incentivize private enforcement of justice. 7. Head off violent self-help

Collateral Source Rule: 920A. Effect of Payments Made to Injured Party

A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability. 1. Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable.

punitive damages

Insurer has duty to accept a settlement offer that is reasonable and within policy limits when a substantial likelihood exists that a verdict will exceed policy limits.

924. Harm to the Person

One whose interests of personality have been tortuously invaded is entitled to recover damages for past or prospective 1. Bodily harm and emotional distress; 2. Loss or impairment of earning capacity; 3. Reasonable medical and other expenses; and 4. Harm to property or business caused by the invasion.

General damages

Pain and Suffering i. Pain refers to actual physical pain caused by an injury ii. Suffering refers to mental anguish experienced by the injured party.

925 Actions for Causing Death

The measure of damages for causing the death of another depends upon the wording of the statute creating the right of action and its interpretation.

State law generally governs punitive damages BUT:

a. 14A due process clause prohibits "grossly excessive or arbitrary punishments" b. 3 guideposts i. Reprehensibility 1. Did it affect a persons health or physical/bodily integrity 2. Did this prey on particularly vulnerable people 3. Did they do this more than once ii. Disparity between compensatory damages and punitive damages 1. No brightline; single digit modifiers best iii. Disparity between punitives and civil penalties

Wrongful death v. Survival action

a. Both are statutory and universally embraced b. No common law recovery for wrongful death i. Causes of action extinguished upon death of either party ii. Prosser: "more profitable for the defendant to kill the plaintiff than to scratch him." People had to be alive to bring an action.

Collateral source rule

a. Common law rule: a plaintiff's recovery is not affected by compensation he or she received from other sources. b. How is double recovery presented? i. Subrogation clauses: insurance companies are typically reimbursed

Mitigation

a. Must engage in "reasonable" mitigation b. Reasonable medical procedures i. Yes, if injuries may be cured by simple and safe surgery ii. No, if operation is serious and attended by grace risk of death or failure c. Reasonable attempts to gain employment i. This does not require seeking additional education to qualify for a job for which one does not qualify at the time of the accident.

Purpose of damages

a. Punitive damages: Punish and deter defendant b. Nominal damages: Assert legal right c. Compensatory damages: Compensate plaintiff for loss

special damages

actual pecuniary losses, sometimes called out of pocket

Compensatory Damages: §903 definition

compensatory damages are the damages awarded to a person as compensation, indemnity or restitution for harm sustained by him.

§905 Compensatory damages for nonpecuniary harm

compensatory damages that may be awarded without proof of pecuniary loss include compensation 1. For bodily harm, and 2. For emotional distress.

§906 compensatory damages for pecuniary harm:

compensatory damages that will not be awarded without proof of pecuniary loss include compensation for 1. Harm to property, 2. Harm to earning capacity, and 3. The creation of liabilities.

non pecuniary damages

damages that cannot be measured ( general damages)

§918 avoidable consequences

except as stated in subsection 2, one injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort.

Loss of consortium

historically brought by husband for economic loss of wife's services a. Today, either spouse may bring for economic or non-economic losses (loss of companionship, comfort, affection, sexual relationship) b. This steps in if basically the person lives rather than dies but is disabled in a way for either a period or permanently takes away from the marriage c. A minority of states allow children to bring claims. i. Must be a minor d. Fewer allow parents to recover based on injured children

How to determine value of Pain and Suffering

i. Consider comparable awards ii. Per diem approach 1. Ask the jury to consider what it would be like to go a week without arms or legs and multiply that for a certain amount of weeks or years 2. Sometimes show a day in the life video. * Juries receive a lot of discretion * But judges can adjust award through remittitur and additur. * Many states have capped general damages with tort reform statutes

Majority rule for pain and suffering / enjoyment of life

i. Pain and suffering includes enjoyment of life ii. Must be conscious for pain and suffering

who brings the claim from WD and SA?

i. Wrongful death - "close relative" - usually spouse, children, parents ii. Survival action - administrator or executor of estate (personal representative of the person who died)

What is the difference between WD and SA?

i. Wrongful death - damages suffered by survivors from of loved one ii. Survival action - damages suffered by decedent (person who died and could have recovered if lived) 1. Survival refers to action, not victim.

general damages

intangible losses resulting from personal injury. For example, Pain and suffering

Compensatory damages §910: past, present and prospective harms

one injured by the tort of another is entitled to recover damages from the other for all harm, past, present and prospective, legally caused by the tort.

Wrongful birth

parent claim that negligent genetic counseling or misdiagnosis of condition of fetus led to birth of disabled child i. Most states recognize claim for extraordinary medical expenses ii. Some states allow claims for emotional distress damages iii. Some require jury to offset these damages with emotional benefits of having child

wrongful conception

parent claim that negligent sterilization led to birth of healthy child i. Virtually all states allow some recovery - the big dispute is over what should be recovered ii. Most allow recovery of expenses associated with pregnancy and birth (but not until 18) iii. Most reject the cost of raising a child to majority

§4 Physical Harm

physical harm means the physical impairment of the human body or of real property or tangible personal property. Bodily harm includes physical injury, illness, disease, impairment of bodily function, and death.

§908 : Punitive damages

punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future. 1. Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaint that the defendant cause or intended to cause and the wealth of the defendant.

Loss of consortium

refers to the loss of benefits that plaintiff would have expected to receive from the injured party.

additur

ruling by a judge adding damages additional to the original amount awarded by the jury. It is not allowed in U.S. federal court.

remittur

ruling by a judge lowering the amount of damages granted by a jury in a civil case. Usually, this is because the amount awarded exceeded the amount demanded.

vii. §914A Effect of taxation

the amount of an award of tort damages is not augmented or diminished because of the fact that the award is or is not subject to taxation. 1. The amount of an award of tort damages is ordinarily not diminished because of the fact that although the award is not itself taxed, all or part of it is to compensate for the loss of future benefits that would have been subjected to taxation.

Time value of money

the concept that money available at the present time is worth more than the identical sum in the future due to its potential earning capacity. This core principle of finance holds that, provided money can earn interest, any amount of money is worth more the sooner it is received.

vi. §914 expense of litigation

the damages in a tort action do not ordinarily include compensation for attorney fees or other expenses of the litigation. 1. One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action.

b. §901 General principle

the rules for determining the measure of damages in tort are based upon the purpose for which actions of tort are maintainable. These purposes are: i. To give compensation, indemnity or restitution for harms; ii. To determine rights; iii. To punish wrongdoers and deter wrongful conduct; and iv. To vindicate parties and deter retaliation or violent and unlawful self-help.