Damages Flashcards
When are damages awarded?
Generally when plt can show injury causally connected to defendant’s breach of duty
reasonable certainty
Plaintiff may collect for damages that the fact-finder can determine to a reasonable certainty that the plaintiff has suffered or will suffer
Burden of proof
Preponderance of evidence (applying both standards is nuts)
LOOKING AT AWARD BEING MADE,not elements
“It is only necessary, therefore that reas. certainty should be shown by prepon. of evidence. That is to say, there should be a prep. of evid as to such facts, which, if regarded as proved, would establish the plf’s case with that reas. certainty which the law requires.” 1901 treatise
types of damaged
nominal, compensatory, actual, and punitive damages; and general and special damage
foreseeablity
What damages are compensable follows the general rule of foreseeability; that is to say, a defendant is liable for damages that one ordinarily would foresee resulting from the tort. Thus hitting someone yields physical injury and may yield damages consequential to the physical injury, such as lost wages. Defaming someone yields reputational injury and may yield consequential damages to the reputational injury, such as emotional distress. Notice how damages as a concept overlaps with causation.
emotional damages
Emotional damages usually arise only consequentially. Pain and suffering are forms of emotional damages
economic damages
such as loss of employment or financial support, usually are consequential.
may economic damages vest in 3rd party
yes.such as loss of employment or financial support, usually are consequential.
prerequisite to emotional & economic damages?
Because emotional and economic damages usually are consequential only, physical injury usually is prerequisite to their recovery
I got an award from insurance. am i precluded from damages?
Damages are awarded irrespective of insurance. Thus the fact that one party received an insurance award does not preclude recovery of damages
must i reimburse my insurance company if i am awarded damages?
Whether the insured must then reimburse the insurance company is a matter of contract between insured and insurer. Usually the insured does not have to turn recovery over to the insurance company if the insured pursued the litigation. Cases of subrogation may be different.
subrogation
where the insurer stands in the shoes of and litigates on behalf of the insured.
-then the insurer deducts its payments and expenses before turning over any excess to the insured. This insurance arrangement works on both the plaintiff and defense sides. Subrogation may occur in defense of a claim, and awards are made irrespective of whether the defendant is insured.
duty to mitigate damages
Owed by plntf.
for example, a plaintiff suffering a wound may not refrain from going to the hospital in the expectation that an infection will set in and thereby increase the ultimate damages award for pain and suffering. The defendant may raise plaintiff’s failure to mitigate as a partial affirmative defense as to damages
diffuculty in valuation.
an inescapable problem.
Damages valuation is inherently flawed for many reasons, including the subjectivity of pain and the uncertainty of predicting a person’s future earnings.
courts disfavor per diem & Golden rule.
per diem methodology
multipliers are used to derive damages figures from precedents
Golden rule arguments
for example, a plaintiff’s attorney prompts jurors to consider what they would pay not to suffer as the plaintiff di
Why do damage valuations in US tort system perpetuate social inequalities?
prejudices of race, gender, and socioeconomic status, because valuations tend to favor plaintiffs of greater wealth and income
bias problem- not same human life, each is diff.
can depend on jury pool-race bias-damage calcs
who determines damage amount?
fact finder
excessive awards?
subject to remittitur by the court
majority (and federal) standard for remittitur
that the award shocks the judicial conscience. In practice, courts tend to compare the award to others in similar cases and may use statistical methodology to identify a normative group and determine whether the instant award materially deviates from that group
Statistical rule to regard award
that ninety-five percent of sufficiently populated, normally distributed data points will fall within two standard deviations of the median may be employed to regard awards outside two standard deviations as highly suspect
non pecuniary loss
General damages for which there is no formal monetary scale of award such as pain and suffering, social isolation et
acute pain
severe & sudden onset (ex, heartattack)
chronic pain
long developing, pain suffered for life
somatogenic pain
physical-pain generated by tissue damage, prompted by injury or disease.
iatrogenic pain
comes from treatment
