Damages

Question 1

Contract Damages

Answer 1

1) special/consequential damages – those not flowing directly from breach, but are ancillary effects resulting from breach
- -intangible

2) general damages – those that flow from the breach
- -wages, etc.

Question 2

American List Corp

Answer 2

P mailed student names to D for mailing list. Change of ownership led to breach of K, for which P is awarded amount on K.
D argues damages are special/consequential, but court agrees with P that they are general – payment was spelled out in the K itself

Question 3

Nominal Damages

Answer 3

cannot get in negligence cases

Question 4

Molzof

Answer 4

Husband received lung surgery at VA hospital, ventilator accidentally turned off for 8 minutes, suffers irreversible brain damage
Trial court/7th circuit find government’s free continuing medical care is enough and any other award would be punitive, which is not favored

P sought recovery for 1) loss of enjoyment of life and 2) medical services that would have been duplicative from what he would have received at the VA hostpital

Supreme Court– punitives not same as damages with a punitive effect. Excessive damages are not punitive damages

Question 5

Attorney’s fees

Answer 5

only by statute or K agreement

Need nominal fees for attorney’s fees

Question 6

Tort damages

Answer 6

1) General – noneconomic
2) Special (tort) – economic
- -lost wages, medical expenses, out of pocket expenses

Can get general without special, sometimes special without general
Strict Approach – never get special without general
Flexible approach – can have special without general if
1) P’s evidence of pain and suffering is subjective,
2) P’s pain was caused by something other than the tort,
3) there is objective evidence of pain and suffering that the jury does not believe for some reason

Question 7

Can you get emotional distress recovery in breach of K claims?

Answer 7

No, unless p’s emotional wellbeing is to tied up in the k that it is reasonable fx that emotional distress would result from breach, or

bad faith

Question 8

Economic Loss Rule

Answer 8

Cannot recover for purely economic losses in negligence cases – must also have physical injury or property damage

Question 9

Aikens v. B&O RR

Answer 9

P’s brought suit seeking lost wages damages, claiming that a train derailment damaged the motor coils plant they worked for.

loss was purely economic, so no recovery.

Question 10

In re Taira Lynn

Answer 10

Boat allided with bridge, releasing gaseous mixture into the air. This led to a mandatory evacuation of the area. Claims were only for economic loss. just having gas present isn’t physical injury

One company lost 88 boxes of dressed tuxedo crabs that spoiled in a freezer. But this loss was due to electricity being turned off in evacuation, not because of the collision or gas.

Question 11

Collateral Source Rule

Answer 11

where the party has a third party pay for costs, e.g. insurance, that info cannot be taken into consideration when calculating damages. So something like free medical care is reimbursable

Exception
only when related to the issue
to show that P had insurance and could have mitigated by seeing a doctor

CA statute bars collateral source rule in medical malpractice suits

Question 12

Gratuitous Giving Exception (majority)

Answer 12

P is allowed to benefit from gratuitous payments such as scholarships and courts will not reduce damages based on this. Exception to the exception is if gratuitous payment was made by D, D’s friends or family

Question 13

Helfend

Answer 13

P had his arm crushed by bus, had costs paid by insurance. D tried to argue this amount should be deducted from damages but in CA these things are not deducted.

P got those insurance payments because he’d been paying his premiums Tortfeasor should not benefit from the P being responsible

Question 14

Arambula

Answer 14

P injured in car crash but still paid salary from family business even when not working. D (driver at fault) argued that the salary/disability/etc. he received from the company should be deducted from damages.

H: gratuitous payment does not reduce damages award, unless the payment was made by D, D’s friends or family

Question 15

Avoidable Consequences/Mitigation

Answer 15

• -Burden of proof on D as an affirmative defense
• -if P had duty to mitigate, damages are offset for lack of mitigation
• -generally when medical procedure is involved, must have been presented to P in advance, not P initiating search. P is not expected to be a medical expert

Getting jury instruction just means jury will decide if the mitigation was Rx.

Question 16

Surgery exception

Answer 16

Surgery not required in duty to mitigate if surgery if there is 1) peril to life, 2) undue risk, or 3) unreasonable anguish

Question 17

Punitive damages – tort

Answer 17

CA standard – oppression, malice, or fraud

Punitives awarded if, after compensatory damages, court still wants to punish D as a deterrent

Question 18

Nominal damages

Answer 18

can include punitives in intentional torts

Question 19

When are punitives excessive?

Answer 19

look at:

1) reprehensibility of the conduct
2) disparity between the harm suffered and punitive award
3) difference between this remedy and the civil or criminal penalties authorized or imposed in comparable cases. this one is often overlooked/is the least important

Question 20

General rule on punitive ratios

Answer 20

4:1 punitive:compensatory is reasonable, and D’s wealth cannot be basis for upholding award

but! D’s wealth can be considered in O/M/F cases

Question 21

Mathias

Answer 21

Motel had multiple reports of bedbugs. In addition to guests, the motel’s extermination service told them they had bed bugs but the motel refused to pay for extermination fee. One guest had to be moved four times before finding a room with no bugs, and employees were instructed to call the bedbugs “ticks” and to continue renting rooms on the “do not rent” list.

Punitives not allowed in normal negligence cases, but can be allowed in gross negligence cases, for example here

Question 22

Philip Morris

Answer 22

Cannot instruct jury about harm to third parties but use harm to third parties to help determine level of reprehensibility

Question 23

Liquidated Damages

Answer 23

not enforced if there is an ex ante of damages which is a penalty intended to force performance

amount must be liquidated prior to breach

Question 24

NPS v. Minhane

Answer 24

• Acceleration clause in K for Pats tickets
• criteria for determining if liquidated damages are excessive:
  1) actual damages flowing from breach are difficult to ascertain at time of contracting, and
  2) the sum agreed upon as liquidated damages is a Rx in light of anticipated or actual loss caused by the breach

Question 25

Attorney's Fees

Answer 25

- -When supported by statute of K | - -In contracts, attorney's fees allocations are usually one-sided, and courts will usually made them mutual

Question 26

Lodestar method

Answer 26

determines fees payable by a defendant under a fee-shifting statute, e.g. to determine Rx hourly rate versus number of hours worked

Question 27

Compensable damages for Physical Injury

Answer 27

Elements! 1) Time Losses - p can recover loss of wages or value of any lost time or earning capacity where the injuries prevented work. Economic/special damages 2) Expenses incurred because of injury -- usually medical type expenses 3) Pain and Suffering -- general, non-economic

Question 28

Boan v. Blackwell

Answer 28

Loss of enjoyment of life = subjective and objective

Question 29

Special Damages for Physical Injury

Answer 29

Earl v. Bouchard - -tort victims required to find alternative employment to offset costs - -damages measured to extent to which P's earning capacity was diminished. Capacity not same as lost wages!