Damages Flashcards
Pecuniary loss
Purely economic loss does not cover the damage portion of liability unless the economic loss is parasitic to an injury to a person or property
Physical harm
Physical harm is sufficient for damages. Property damage is physical harm
Negligent infliction of emotional distress
Damages for emotional distress suffered on the account of witnessing an injury to a loved one, having actually been there and within proximity of the accident
A person is liable to them as a bystander (bystander liability)
Restrictions to bystander liability
A) relational- there needs to be a relationship Bergen the person harmed and the person who witnessed the harm (typically parent/child, husband/wife relationship)
B) temporal- the person had to actually be there (not someone who arrived just after but there when it occurred)
C) proximal- the person must have been in the zone of danger for having the injury occur to them as well
Damages for failure notify someone of the death of a loved one
Must be no suspicion that there is emotional distress
Wrongful birth (a.k.a wrongful conception)
Negligence that causes or facilitates the birth of a healthy child that has a condition that the parent didn’t want (e.g. chromosome issue)
Damages may be awarded for extraordinary cost (lifetime institutionalize, eduction needs) but court will not award pain and suffering damages
Wrongful life
Includes cases in which negligence facilitates the birth of a child with a serious illness
Includes do not resuscitate cases
Economic loss
Purely economic loss will not cover the damages portion of liability
Unless
The economic loss is parasitic to an injury to a person or property
What type of harm is sufficient for damages?
Physical harm
Property damage is physical harm
-Emotional distress of economic loss that is parasitic to physical harm
-Pecuniary loss that is parasitic to physical harm
Indemnification
A common law doctrine. A shift of the entire loss from one D to another
Available where:
- there is an express contract between parties containing an explicit undertaking to reimburse for liability
- derivative or vicarious liability
- where one has incurred liability for failure to discover or prevent the misconduct of the one sought to be charged
For what situations is vicarious liability available?
Available where:
- there is an express contract between parties containing an explicit undertaking to reimburse for liability
- derivative or vicarious liability
- where one has incurred liability for failure to discover or prevent the misconduct of the one sought to be charged
Contribution
A statutory doctrine.
Pro rate contribution- each is responsible among themselves for 50% of damages but this goes to how they share damages among themselves. They are both liable to P for 100%
Equitable share contribution- the Ds are assigned percentages that reflect their level/significance of their contribution (culpability) to the outcome
When a D is jointly and severally liable when may he collect his right to contribution?
The right to contribution accrues when the D seeking contribution pays for his percentage or more than it to the P
(D is entitled to the amount in excess he pays)
Tunkl v. Regents
Example of determining whether to enforce exculpatory agreement
Tunkl signed agreement w/ exculpatory provision upon entry to a non-profit institute for a serious illness. Personal injuries resulted.
1) hospital provided essential services to public members in need of a particular skill
2) hospital willing to perform on members of public who have a qualifying condition
3) insisting patients accept provision for treatment is a bargaining advantage
4) there was no bargaining table for patients to debate the terms i.e. public confronted w/ standardized contract w/ no provision for signee to obtain protection against negligence
5) patient signing contract put himself in complete control of the hospital
Tunkl approach (balancing approach to an exculpatory provision)
The closer the P comes to an essential service and the farther P is from a recreational activity the more likely P can avoid the exculpatory language of the agreement and get out of a signed contract.
Five factors of the tunkl approach
1) service of great importance to the public
2) willing to perform the service for any member of the public
3) possesses an advantage of bargaining strength
4) confronts public w/ standardized adhesion contract and leaves no room for patients to obtain protection against negligence
5) the signee is placed under the control of the party
