DAMAGES Flashcards
Nominal Damages
Trivial sum award in absence of actual loss in recognition plaintiff has suffered a tort.
Compensatory Damages
Restore Plaintiff to pre tort position as much as possible to do so
Punitive Damages
Awarded above & beyond compensatory damages and usually award to punish the tort feaser
Compensatory damages broken down into 2 categories
General Damages ( non economic damages)
Special Damages ( economic damages)
General Damages (non economic damages)
Pain & Suffering
Mental Anguish
Hedonic Damages ( minor jurisdictions)
Consortium Damages
Hedonic Damages
Loss of enjoyment of life _ detrimental alterations of person’s lifestyle
Consortium Damages
Damages brought by close family members when another close family member (primary person) is a tort victim and family member suffers a loss b/c of the loss to the primary victim
Consortium Damages
Damages brought by close family members when another close family member (primary person) is a tort victim and family member suffers a loss b/c of the loss to the primary victims
Consortium Damages
Damages brought by close family members when another close family member (primary person) is a tort victim and family member suffers a loss b/c of the loss to the primary victim P
Special Damages
Loss Earnings ( from time of tort to trial)
Loss or impairment of future earning capacity ( time of trial into the future)
Medical Expenses ( P&F)
Constitutional Limits
1.Degree of Reprehensibility of Defendant’s conduct
2.Disparity between actual/potential harm suffered & punitive damages awarded (Relationship between compensatory damages & punitive damages) _No hard rule but single digit ratio is better … needs to be reasonable & proportional. Ex: anything less than or = to 1:9 _AND
3.Difference between punitive damages& civil penalties authorized or imposed in comparable cases (compare with other state ( jurisdiction of the case) civil penalties)
Collateral Source
Payments made or benefits conferred on the plaintiff that are collateral to the Defendant Tort Feasor are NOT considered in assessing damages.
Prohibits the defendant from benefiting from sources that have nothing to do with the defendant, If the source originated with the plaintiff, then the defendant does not to get to benefit from the source
Exceptions to Collateral Sources (4)
1) to rebuttal plaintiff’s testimony that they were compelled to return to work to forego additional medical care
2) To show that the plaintiff had attributed their condition to some other cause such as sickness
3) Impeach the plaintiff testimony they paid for their medical expenses themselves
4) Show that the plaintiff had actually continued work instead of being out of work as clamed
EXAMPLES of Collateral Sources
Plaintiff receiving government benefits, continued wages, disability payments, pension
Doctrine of avoidable consequences
Plaintiff can not claim damages for permanent injury if Permanency avoidable by submitting to treatment ANDA reasonable person would have submitted to treatment.
Does not alleviate defendant of liability but requires a plaintiff to mitigate their damages if a reasonable person would do so.
Failure to take advanced precautions against extent of injury example
Ex: Motorcyclist not wearing helmet when negligently hit by car. Not wearing helmet is not the causation in fact of the accident. However injuries may not have been as extensive if Plaintiff was wearing a helmet. Plaintiff failed to take advanced precautions. Failing to act reasonably to guard against extent of injury
Compensatory damages ARE OR ARE NOT subject to fed/ income taxes
NOT
Compensatory damages can be broken down into
Special & general damages
Special damages and examples
Economic losses that can be readily calculated such as
Loss Earnings ( from time of tort to trial)
Loss or impairment of future earning capacity ( time of trial into the future)
Medical Expenses ( Past & Future)
General damages and examples
Non economic losses
Conscious Pain & suffering ( past & future)
Conscious mental anguish ( past & future)
Hedonic Damages = Loss of enjoyment of life - Minority treatment
and apply to person injured only
Consortium damages = damages brought by close family members when another close family member ( primary person) is a tort victim & family member suffers loss b/c of the loss to the primary victim
Punitive Damages - definition, how they apply, modification ability
Monetary damages awarded to above & beyond compensatory damages & usually award to punish the tortfeaser
Needs to be gross injury
B/c these damages are a privilege states can modify or eliminate plaintiff’s ability to receive punitive damages
Constitutional limits on punitive damages
Degree of reprehensibility ( needs to be more than reckless conduct)
Disparity between actual/potential harm suffered & punitive damages ( single digit ratio the better to indicate reasonableness & proportional)
Difference between punitive damages & civil penalties authorized or imposed in comparable cases ( compared w/ other states or jurisdiction of the case civil penalties )
Joint Tortfeasors
Joint & severally liable if
act in concert OR
failure to perform common duty owed to plaintiff
Satisfaction is a _____ defense
Means plaintiff has received/been paid full compensation for plaintiff injury.. completely discharges liability for all other joint tortfeasors
Affirmative defense as plaintiff entitled to 1 satisfaction
Types of release
Covenant not to sue
Release
Marty Carter Agreement
Release is
contractual surrender of plaintiff’s claim which release all joint tortfeasors
Must look at the body of the document not just the name
Covenant Not to Sue
Contract not to pursue COA against particular defendant
Can a defendant who signed a covenant still be apportioned some fault?
Depends on jurisdiction…how do they define unavailable to be sued
Mary Carter Agreement
Setting joint tortfeasor retains financial state in plaintiff recovery & remains party for trial against remaining defendants
Majority jurisdiction and Mary carter agreement
allow w/ certain jurisdictional safeguards
Indemnity
Party who is secondarily liable party has right to be reimbursed from primary liable party
Contribution
Right of joint tortfeasors to collect all from other joint tortfeasors when defendant has paid more that it’s share proportional to plaintiff
