Damages Flashcards
what can you recover
What is the theory of a survival action and what can you recover from it?
It allows an estate to bring forth an action to approximate the action that a decedent could bring had he/she lived. Usually a will is present/available
Compensation
Pecuniary: lost future wages, medical expenses before death
Non-pecuniary: pain and suffering before death (fear felt in the moment)
What is the theory of wrongful death action and what can you recover from it?
It allows an action to be brought by those who depended on the decedent based on intestacy laws.
Usually no will is present/available
Compensation
Pecuniary: Loss of support (based on projections)
Non-pecuniary: Loss of companionship and affection (projected quality of relationship)
What is the difference between compensatory and punitive damages?
Compensatory: compensate the vicitm for pain and suffering with money
Punitive: punish the inflictor can be jail time
What is the difference between pecuniary and non-pecuniary compensation?
Pecuniary is tangible
bodily harm: medical expenses, lost wages
property: cost of repair and replacement, loss of use during repair and replacement
Non-pecuniary is intagible
bodily: pain and suffering
property: no emotional harms exist
What is the difference between an action for survival and one for wrongful death?
Survival has a will, Wrongful does not
Survival is brought by the estate to establish what the cost of their potential life would be.
Wrongful is brought by those dependent on the decedent what the cost of their life effects the dependents life.
What are the jurisdicitonal caveats for survival and wrongful death?
Some allow recoery for only one or the other
Some recognize only pecuniary damages
Some allow both cause of actions but no double recovery
What is several liability?
Several liability refers to the individual liability of each defendant in a tort action.
When defendants act independently of one another (no common plan) to produce divisible injuries each is severally liable.
They will only be responsible for that identifiable divisible injury that was caused by their independent act
What is joint and several liability?
Joint and several liability applies if
1. Defendants act in concert, that is, pursuant to a common plan or agreement; They will be jointly and severally liable for any injuries that occur due to acts that fall within the scope of that plan or agreement
2. Defendants’ independent acts concur to produce an indivisible injury
An injury that cannot be disaggregated and then measured separately
