Damages

Question 1

What kind of damages are available in negligence

Answer 1

Generally, no nominal damages in negligence. In intentional torts, nominal damages recognize the offense to dignity, and that is the trigger that opens up punitive damages. It’s also hard to get punitive damages, to do so, you must show a higher level of culpability such as gross negligence, willful or wanton negligence, or recklessness.

Question 2

Personal injury damages types

Answer 2

(1) special: economic loss damages such as lost wages, medical bills, future care needs; (2) General/Non-economic: non-economic dmages such as pain, suffering, emotional distress, disfigurement.

Question 3

Eggshell Plaintiff Rule

Answer 3

If P has a condition that makes them more sensitive/fragile physically, they can recover for all injury that occurs. Rationale: we want to foresee these kinds of people in everyday life. REMEMBER: Ds are liabile for ACTIVATING OR AGGRAVATING an existing illness or injury. Juries are instructed to try to find out what percentage of harm arose from D’s new actions.

Question 4

Collateral source rule

Answer 4

Ps can recover from the D even if P is compensated by gifts or insurance payouts. P’s damages are not reduced by these things. D doesn’t get benefit of P getting payments from insurance, consistent w/ the goal of deterrence.

Question 5

Future damages

Answer 5

REMEMBER on exam, assess loss of future WAGES and loss of future EARNING CAPACITY.

Question 6

Wrongful Conception (definition and damages)

Answer 6

negligence before conception causes birth of child either healthy or unhealthy. Will get (for healthy child) cost of pregnancy care, confinement (not going to work), etc. WILL NOT get cost of raising child, even if that child has a genetic disease.

Question 7

Wrongful death damages

Answer 7

(1) expenses for care; (2) pain and suffering of decedent; (3) funeral expenses; (4) monetary value of decedent (net income, services, companionship); (5) punitive if applicable; (6) nominal if applicable

Question 8

Wrongful death - still born fetus: damages

Answer 8

NC wrongful death act says one can bring wrongful death action if the decedent could have maintained an action for negligence or some other misconduct if he had survived. This includes a stillborn fetus. No recovery permitted based on life expectancy or loss of companionship. Damages are nominal + punitive + pain and suffering (which cannot be established) + medical/funeral expenses.

Question 9

Wrongful birth

Answer 9

negligence after conception precludes lawful choice to terminate pregnancy, usually for unhealthy child.