Calculation and Allocation of Damages

Question 1

Special Damages

Answer 1

-Economic and Pecuniary damages
- Diminished value of Prop.
- Lost wages while recovering from injury
- Medical Expenses

Account for “discounting”
“Give less today for farther out compensation” (they can put money in bank today to gain interest on it)

Question 2

General Damages

Answer 2

-Non-economic
- Pain and suffering
- Loss of Consortium
- Compensate the spouse of an injured person for the reduction of companionship
-

-Hedonic Damages
- Injury prevents a P from enjoying life to the extent he could before becoming victim of tort/ loved tennis but now can’t play

Question 3

Compensatory Damages

Answer 3

Both Gen and Special they provide compensation to the P

Question 4

Compensatory damages are distinguished from Nominal and Punitive Damages

Answer 4

The purpose of nominal/ punitive damages is NOT to compensate the P, rather to regulate the behavior

Question 5

Calculating Compensatory the General (non-economic damages)

Answer 5

Old Method:
Per diem Rule- Damages per day for the injury than multiplied by victims expected lifespan
Golden Rule- How much they (jury) would have to be paid to be willing to trade places with the injured P

New Methods:
Damage award will not be reversed if it falls within the bounds of the evidence

Question 6

Non-Compensatory Damages

Answer 6

Punitive Damages-
Not available for ordinary negligence (needs Malice ill will, hatred, reckless)

Nominal

Question 7

Elements for Malice for Punitive Damages

Answer 7

(1) specific indications of hatred, or Reckless
(2) Any intentional Tort (imputed malice) intentional tort itself is sufficient to establish malice

Question 8

Punitive Damages on policy level

Answer 8

(1) could be too vulnerable on the jury’s emotions (no safeguards like criminal proceedings)
(2) Serve Retribution
(3) Deterrence
- discouraging the D and other in the D position from future conduct like the D’s.
- The wealth of D is taken into account

Offend Due Process on punitive to compensatory ratio?

Question 9

Three Levels of Ratios of Punitive to Compensatory

Answer 9

BMW- 500 to 1 Outside the Limits

State Farm- 10 to 1 appears excessive

Punitive damages are intended to send a message that cannot be sent by compensatory alone

(1) Offensiveness level
(2) was the P in an impoverished/ economic vulnerable

Question 10

Wrongful Death Statutes / Surviorship Claims

Answer 10

Common Law- A deceased persons family cannot file suit on behalf of their departed for wrongful death (The death of a human being could not be complained of as an injury)
(Cheaper to kill P than to scratch him)

Wrongful Death- Wrongful death statutes, however, do not compensate the decedent herself; it is obviously impossible to compensate the decedent for anything. The best the law can do is to compensate survivors who were close to the decedent for the losses they suffer as a result of the decedent’s death. Thus, wrongful death statutes authorize damages for the economic or emotional losses to the survivors of the decedent, not the loss suffered by the decedent herself.

Survival Actions- Provide a statutory right for a decedent’s estate to bring a lawsuit to recover for damages suffered by the decedent after an accident but before the decedent’s death (Lost wages and pain and suffering)

Question 11

Joint and several liability (common law)

Comparative Contribution

Several liability

Answer 11

J&S liability Any D is liable for the full amount of P injuries, even if not all wrongdoers are named in the lawsuit

Comparative Contribution A liable party made to pay more than fair share can get contribution from the other Ds

Several liability Each D liability limited to their share of negligence

Question 12

Wrongful Death

Answer 12

Close family member recovers pecuniary value of decedents life

Question 13

Vicarious Liability

Answer 13

Employment relationship and conduct w/n the scope of employment triggers vicarious liability