Damages Flashcards
Compensatory Damages
Money paid to compensate plaintiff’s loss (Place P in “rightful position)
Compensate = substitute economic value for loss
○ Jury trial – 7th A [anything >$20, have right to jury trial]
Torts: LOOKS BACKWARDS
Pecuniary (Economic)/ Special Damages
- Easy to quantify (medical bills, lost wages, etc.)
Non-Pecuniary (Presumed)
- Difficult to quantify
■ Defamation or constitutional violation resulting in harm
■ Pain & Suffering, emotional distress, loss of consortium
Contracts: LOOKS FORWARDS
- Expectation Damages – benefit of the bargain
■ Direct losses due to violation/breach
- Consequential Damages (limitations)
● Loss of operating revenue due to a delay in construction
● Harm to a company’s business reputation
● Loss of time; Loss of profit
Nominal Damages
Define: small trivial sum ($1 - $10) when no actual loss
○ Vindication of rights [Similar to Declaratory Judgement]
When would there be no actual loss?
○ Property disputes (boundary line); trespass to land
Exception: No nominal for negligence (need actual)
Why award nominal damages? -Recovery of attorney fees (fee splitting)
- Hook for punitive (when no “actual” loss but D’s conduct willful/wanton)
Limitations on Recovery
Mostly for consequential damages:
- Foreseeability
- Certainty
- Unavoidable
No double recovery
Offset damages in accordance with any benefit gained by P
Limitation on Recovery: Foreseeability
CONTRACTS
D’s knowledge or notice (reason to know) of the special circumstances @ time of K formation.
○ remain liable if “should have foreseen,” even if didn’t
○ If D on notice, then can bargain for “risk of harm to P”
TORTS
Look at whether the TYPE of harm is foreseeable (e.g., Battery may lead to hospital bills). Don’t look at the EXTENT of the harm (Thin-Skull P Exception)
Exceptions:
○ Special circumstances never communicated to D
○ Thin-skulled P
Limitation on Recovery: Certainty
Need to be sure about the damages, not speculative
1. Causation in Fact
2. Evidence: quality and quantum of evidence
● Based on expert testimony usually
Recovery now tied to probability of occurrence of future harm
○ Low probability – low recovery (and vice versa) [this is new majority rule]
○ Not speculative – size of award needs to reflect prob. of occurrence.
Limitation on Recovery: Avoidability
No recovery for losses P could have avoided
● Focus on P & reasonableness of actions AFTER the violation to avoid further harm
● Not a duty owed to D to mitigate, but reduces P’s recovery if unreas after violation.
Case: Refusal of medical treatment after car accident due to religious reasons
○ Doctrine of avoidable consequences applied to limit the amount of damages
○ Holding is not inconsistent with the “thin skull P” rule since that rule only applies to preexisting physical conditions that result in unforeseeable injury. [not religious beliefs]
Measuring Economic Loss
MR. PRUD
○ Market value
○ Replacement costs
○ Personal (sentimental) value [usually not the way courts will measure value]
○ Repair Costs
○ Use Value
○ Diminution in value
How to choose?
Choosing Measures
● Lowest Value (“lesser of” rule)
Damages for despoilment of natural resources shall be “the lesser of: restoration or replacement costs; or diminution of use values.” 43 C.F.R. § 11.35(b)(2)(1987)”
● *Fair Market value (preferred by most courts as measurement!) (“FMV”)
● Practical: what evidence supports
Types of Non-Pecuniary Damages in Tort
Intangible Losses, Comes under a Wrongful Death Action
- Pain & Suffering [always argue for both]
● Pain: physical sensation
● Suffering: Emotional or mental distress
● Trial crt may reject jury award if against the “great weight of evidence” or “shocks conscious”
● Generally limited to “conscious” P’s who can feel P/S. - Loss of Services (LOS)
● Compensating for LOS provided by deceased person e.g. household chores, homemaker, cooking, raising kids (nurture, training, education)
● Pecuniary: replacement of services is $ (hire 3rd P)
● Non-pecuniary: loss itself was not $ but affection/love (May be a cap associated with this, or a restriction on this [state laws]) - Loss of Society [can’t double dip for losses/get compensated twice for same loss]
● Loss of Ability to interact w/ person, care, affection, protection, social connection
● Loss of companionship w family/friend/child
○ Intangible contributions of the deceased that left the survivors “worse off”
○ Allows for recovery for the death of kid/retiree bc survivor in a “worse off” place
● Loss of Consortium is specific type of society usually between husband and wife
○ Technically separate COA providing for loss or services, society & sexual relations (spouses) - Hedonic [alt usually when a jdx doesn’t allow recovery for pain/suffering]
● Loss of enjoyment of life (“quality of life”) → Eg. inability to ski
● Awarded in cases where pain/suffering is NOT available (so no double recovery)
○ Dif than P/S since may not be in pain (spinal injury but impaired ability to enjoy life)
○ If P/S is available, juries can consider “loss of joy” when awarding P/S.
● Crts generally reject hedonic or “value of life” claims for wrongful death cases – trying to put $ on life
○ Some states will allow it to be a factor in wrongful death suits.
Wrongful Death & Survival Actions
Survival Action (decedent’s estate): losses until time of death
■ Apply to torts that don’t cause death – ex. defamation
Wrongful Death Action (spouse, children, parent, next of kin)
■ Most statues only allow for “pecuniary” losses.
■ Funeral and burial expenses
■ Loss of support from expected earning capacity [Reduced by “personal” consumption]
■ Loss of services of the decedent (household chores, raising kids etc) [usually pecuniary]
■ Loss of the society of the decedent, including loss of companionship, etc. [usually pecuniary]
■ Loss of prospective inheritance to the decedent’s heirs [need to quantify]
■ The mental anguish incurred [need to quantify]
