Damages

Question 1

Basic type of damages

Answer 1

1. Nominal.
2. Compensatory – (Anderson v. Sears Roebuck & Co.; Richardson v. Chapman).
   a. General (pain and suffering, emotional distress, disfigurement, etc.)
   b. Special – lost past and future wages, past and future medical expenses, and value of services which plaintiff can no longer perform, etc.
   c. Damages which are speculative cannot be awarded.
3. Punitive or Exemplary – designed to punish the defendant. Not recoverable in ordinary negligence actions but may be recoverable if defendant’s conduct is gross negligence or reckless.

Question 2

Collateral Source Rule

Answer 2

In the majority of jurisdictions, evidence of collateral sources (medical insurance, disability insurance, discounted medical bills, etc.) is not admissible

Question 3

Duty to Mitigate

Answer 3

complications of injury which could have been avoided if plaintiff had taken certain steps (Zimmerman v. Ausland). The burden of proof lies with the defendant.

Question 4

Emotional Distress

Answer 4

the issue is whether you have a duty to protect plaintiff from emotional distress or mental disturbance

Question 5

Mental or emotional distress accompanying physical injury

Answer 5

Majority cannot recover (exception for falsely reporting death and mishandling of a corpse); minority can recover

Question 6

Physical hRM IN ACCOMPANIED BY MENTAL DISTress or disease

Answer 6

Majority - allow recovery; minority - before recovery is allowed physical impact is required

Question 7

Mental distress caused by witnessing peril

Answer 7

a. Majority – plaintiff can recover if in the zone of danger.
b. Minority – plaintiff can recover if there is (1) physical, (2) temporal and (3) relational proximity and (4) the emotional distress which is sustained is beyond that which the disinterested bystander would sustain

Question 8

Unborn children - injuries

Answer 8

Defendant inflicts physical injury via the body of the mother. Surviving child can bring an action. If child dies - in the majority of jurisdictions the parents are able to bring an action if the fetus was viable at the time of the event

Question 9

Unborn children - wrongful birth

Answer 9

By your negligence (failure to provide parents with sufficient information to make decision whether or not to abort) you have caused a child to be born. If baby is healthy, in the great majority of jurisdictions, there is no cause of action. If baby unhealthy, the courts are split (economic damages vs. emotional distress damages).

Question 10

Unborn children - wrongful life

Answer 10

Action brought by child. Medical providers through negligence deprived parents of ability to have sufficient knowledge whether pregnancy should be terminated. In the great majority of jurisdictions there is no cause of action. A minority of jurisdictions allow a cause of action

Question 11

Wrongful death and survival statutes - Survival statutes

Answer 11

this is the cause of action held by the decedent immediately before death which is passed on to the heirs of the decedent. There is a split of authority regarding the ability of the heirs to recovery for decedent’s pain and suffering

Question 12

Wrongful death and survival statutes - wrogful death

Answer 12

this is the cause of action which is brought by the heirs of the decedent. It is based upon the heirs loss of care, comfort, society, services, monetary support, etc