Damages Flashcards
Nominal/Presumed
Compensatory
Punitive
Money Damages
A token amount limited to specific intentional tort cases
Nominal/Presumed
Amount equal to actual harm suffered and an essential element of a cause of action for negligence, e.g., medical expenses, loss of earnings
Compensatory
Designed as mechanism for punishment and deterrence
Punitive
Injunctive relief
Replevin (recovery of personal property)
Equitable remedies
May recover for the following past (up until decision or verdict) and future (post-decision or verdict) damages, all of which must be independently verifiable.
Economic/Special Damages (Compensatory Damages)
Amount P would have received from existing job if injury had not prevented P from working
Lost earnings (Compensatory Damages)
Amount P would have earned in the future but for some disability. Amount is discounted to present value, an adjustment made so that receiving money now does not result in more had it been received in the future.
Loss of earning capacity (Compensatory Damages)
Reasonable cost of ______ of property, or, if property has been almost or completely destroyed, its fair market value at time of accident
repair (Compensatory Damages)
Mental and emotional trauma suffered as a result of injury (up until time of death)
Pain and Suffering (Non-Economic Damages)
Loss of ability to engage in enjoyable activities
Hedonic Damages (Non-Economic Damages)
Derivative right to recover for loss of financial/ emotional support during injury or death of a co-plaintiff. Usually limited to family members.
Must be brought along with principal action
To recover, D must be liable to primary plaintiff
Loss of Consortium (Non-Economic Damages)
Court’s power to add damages to verdict – not all courts have power to do so
Additur
Court’s power to reduce damages – all courts have the power to do so
Remittitur
Damages may not be reduced or mitigated by reason of benefits received by P from other sources or as gifts, e.g., personal medical insurance, gratuitous services
Exception: Payments are credited if D or someone paying on D’s behalf
Some jurisdictions have abolished or modified effect of
Collateral Source Rule
Unreasonable failure to mitigate damages may reduce P’s recovery. Often treated as an aspect of comparative negligence.
Avoidable Consequences Rule
Allow decedent’s estate to sue for damages occurring during decedent’s lifetime from the time of tortious act until death; or
to be sued by one tortiously injured by decedent during lifetime
Survival Statutes
Certain statutorily enumerated Ps may recover their own damages resulting from D’s tortious death, e.g., loss of financial support/emotional support
Replaces loss of consortium claims once P dies
Wrongful Death Statutes
May be awarded where D’s conduct is willful, wanton, reckless, or malicious, i.e., conscious disregard for safety of another
Used to punish or to make an example
P may have to show clear and convincing of egregious conduct
P may first require a showing of compensatory damages unless an intentional tort
Punitive Damages
Generally not awarded to prevailing party as an element of damages unless allowed by statute or by contract
Attorney’s Fees
If verdict in favor of P, damages may include interest on award from time of injury
Pre-Judgment Interest
