Damages Flashcards
Punitive Damages
Meant to punish or deter. They do not compensate for actual injury suffered by the P, however, there must be some proportionality between the actual or nominal damages and punitive damages. Further, there must be a showing beyond negligence for punitive to be awarded.
Punitive Damages Triggers
Generally available when D acts with spite, ill will, intent to injure or fraud, or gross recklessness/willful disregard for rights of others.
Awarded at discretion of trier-of-fact. Judges can tweak.
Permanent Damages
Damages that are given on the theory that the cause of the injury is fixed and that the property will always remain subject to that injury. Damages are for the entire injury done past, present, and prospective and are practically ierremedial. (Oil spill on someone’s property)
Permanent Damages - Measured
Measured by the difference in the fair market value of the land before and after the injury. (Diminution in value)
Temporary Damages
Damages that can me remediated.
Temporary Damages - Measured
Measure of damages is the reasonable cost of repairing the property, which may include the value of the use therefor during the period covered by the suit. Or it may be the diminution in rental value of the property, together with such special damages to crops, improvements, etc.
Tree Value - Laube v Thomas
Does the tree have a special purpose such as a windbreak, shade, or ornamental use? If so, measure is the difference in the value of the realty before and after the destruction of the trees.
No special purpose? Measure is the commercial value of the trees at the time of taking.
Tree Value - Kroulik v Knuppel
Damage to growing trees is generally measured by the diminution in the market value of the real property. But aesthetic value may be considered in establishing the replacement cost of certain unique properties.
