Damages & Defenses Terms

Question 1

3 Types of Damages

Answer 1

Nominal = A token ($1) for a tort without loss

Compensatory = $$ owed by D to P as compensation for what P has suffered at the hands of D
- Award and amount that will fairly and adequately compensate for P’s loss, injury, or damages, including any damages P is reasonably certain to incur in the future

Punitive= $$ owed by D to P as punishment for egregious mistreatment or to further deter

Question 2

Compensatory Damages

Answer 2

Economic = past & future medical bills/costs, past and future lost earnings (sometimes readily quantifiable)

Noneconomic = having been victimized, experienced disfigurement, past and future pain and suffering, loss of enjoyment of life (no metrics for quantifying)
- modern tort reform focus on these damages—too unpredictable, arbitrary

Question 3

Constraints on Compensatory Damages

Answer 3

• Under ESP, foreseeability of extent of damages is not a constraint
• P’s “duty to mitigate” harm to others. Serves a limit on what can be recovered
• Divisibility, can damages be traced to an independent cause?
• Remittiur = judge provides P with option, avoiding new trial if she agrees to admit a portion of her award and light of the evidence (the award “shocks the conscience” and parties accept a lower award of new trial on damages)
  
  • especially for non economic damages
• Additur = Judge offers D the option to pay a larger award in lieu of a new trial upon a finding that the jury’s award is shocking

Question 4

Collateral Source Rule

Answer 4

Tortfeasor is not entitled to present evidence at trial, indicating that victim has received or stands received compensation for injuries from some other source saying the money will come from insurance

• Rationale: tortfeasor shouldn’t benefit from “good fortune” of having wronged sometime with insurance or other forms of comp.
• many states have modified or eliminated rule

Question 5

Punitive Damages: Traditional vs. Posner’s View

Answer 5

Traditional= allow victims of egregious wrongs to make an example out of D (exemplary damages)

Posner’s Law & Economics View= prevent under deterrence of (encourage PD for) acts that are:

• Not likely to be prosecuted criminally
• Cause minor injuries (No one P has incentive to sue for compensatory damages)
• Difficult to detect (ex: fraud), and/or
• undertaken by “pertinacious” D’s

Question 6

Availability of Punitive Damages: intentional torts v. Negligence

Answer 6

Meeting the wantonness threshold does not entitle P to PDs; fact-finder can always decline to award PD

Intentional Torts
- Often but not always available (ex: D playfully kisses P, a stranger whom D mistakes for his partner—even if a battery no PD)
- Probably most often awarded for business torts (ex: fraud) rather than personal injury claims

Negligence
- Negligent P who proves only carelessness is ineligible for PDs (no willfulness or wantonness)
- But if P can prove a level of negligence that rises to level of wantonness is eligible

Question 7

Damages to Apportionment

Answer 7

What redress is P entitled?
- Damages (nominal, compensatory, punitive) or injunctions against ongoing tortious conduct

From whom is P entitled to collect damages?
- vicarious liability (ex: employee liability; respondent superior)
- multiple torfeasors causing a single injury
- what % of injury is each liable for?
- how to settle up

• third-party sources of compensation (ex: liability insurance; we don’t reduce damages because of wealth or insurance)

Question 8

Contributory Negligence

Answer 8

Where any carelessness on P’s part that contributed to her injury —> P suffering full burden of loss

• an affirmative defense; P is the proximate cause, not D

Question 9

Comparative Fault

Answer 9

Affirmative defense negligence where P’s own fault limits D’s liability

• Responsibility shall be split evenly among all parties whose fault is found to have contributed to P’s injury
• a comparison of fault does not involve P for deciding D’s defense. Rest 3d has used the term “apportionment” to encompass both P versus D and D versus D comparisons.
• diminishes bright-line cutoff
• incentives are for every party responsible to be present —> incentives for D to join and ID parties

Question 10

Joint & Several Liability v. Alternatives
When D is insolvent or unreachable

Answer 10

Joint & Several Liability v. Alternatives
- D might pay damages disproportionate to fault (Dr. Harris might pay 100% damages)
- overpaying has a recourse: contribution = jointly owed D can bring a claim against the other D—not a tort claim, but in a body of law called restitution (D’s settle it themselves)
- multiple tortfeasors can assert claims for contribution through cross claims: one D can bring a co-D into the suit to determine whether the co-D is responsible for share of liability. The original D is said to have impleaded the co-D.
- if all Ds are solvent and reachable, collection is simpler for P, leaving D’s to work things out

When D is Insolvent or Unreachable
- joint & several liability allocates risk to solvent reachable D’s (Dr. Harris pays D’s portion too)
- Several-only liability allocates risk to P
- is it better to split difference of missing damages on pro rata basis (evenly) or according to percentage fault?

Question 11

Express Assumption of the Risk

Answer 11

Agreement between D & P; P agreed in advance to waive right to sue for injury caused by D’s wrongdoing. If established, P is barred from recovering because P assumed the risk.

Question 12

Exculpatory Clause

Answer 12

Waiver contract that protects a party from liability from its own negligence. An exculpatory agreement is valid if:

• Agreement freely and fairly made
• agreement between parties and equal bargaining positions
• No social interest interference (see Tunkl factors)

Question 13

Public Policy Analysis & Tunkl Factors

Answer 13

Tunkl v Regents Univ. of California (1963) struck down an exculpatory clause signed by a patient entering D hospital for surgical procedure.

An exculpatory clause may not be enforced if the party seeking exculpation is:

1. a business of a type suitable for public regulation;
2. Engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public;
3. Holding itself out as willing to perform the service for any member of the public who seeks it or at least for any member coming within establish standards;
4. Possesses a decisive advantage of bargaining strength against any member of the public who seeks his service as a result of the essential nature of the service and economic setting of the transaction.;
5. In exercising a superior bargaining confronts the public with a standard adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional fees to obtain protection against negligence.
6. property or purchaser is placed under the control of the seller

Question 14

Apportionment Conceptual Challenges

Answer 14

On how to instruct the jury to a portion because sometimes the type of D’s behavior (intentional vs. negligent vs. Wanton) varies

• American Law Institute instructs that we should apportion damage based on causation principles (not comparative fault)

Question 15

Where Contracts Intersect with Torts

Answer 15

Pre-tort contracts: express assumption of risk; arbitration agreement (how court wi decide if they sue)
- waiving the rights torts is trying to protect
- Waivers can indemnify (compensate) your harms

Post-tort contracts: settlements (free reign with contracts as a device to make claims go away)
- courts more deferential to the contract

Question 16

Why have waivers if they’re unenforceable?

Answer 16

They are good because they are:

1. Evidence there’s a risk acknowledged by the victim.
2. Might disincentivize people from participating.

Question 17

Implied Assumption of the Risk

Answer 17

Violenti non fit injuria = “To one who is willing, no harm is done”

Implied Assumption of Risk = P’s negligent claim fails because she was aware of the immediate and significant risk of injury posed by D’s careless conduct, yet freely chose to expose herself to risk.

• Conditions at the time of the choice must attest to a genuine, knowing and voluntary decision to encounter and identify danger
• Common context of recreational activities; tend to be compulsory and involved in an element of physicality
• Plays a similar role to defense of express or implied consent within intentional torts

Question 18

Implied Assumption of Risk as Comparative Fault

Answer 18

• Rest 3d. merges implied assumption of the risk with comparative negligence (adjustment of damages)
• Ds are free to argue that P was aware of risk and voluntarily chose to encounter it but D will no longer automatically be entitled to a complete defense
• the proof is factored into the juries percentage, allocation of fault among Ps and D’s

Question 19

Primary vs. Secondary Assumption of Risk

Answer 19

P: certain kind of activity (typically a recreational sport) simply by virtue of actor’s decision to participate is owed no duty of reasonable care by D (ex: cannot sue if you play pick-up footballl; Knight v. Jewett)
- inherent risk statutes = specify a general assumption of risk defense against negligence claims based on injuries (typically arising from a sport)

S: D does owe duty of care to P, but P proceeds to encounter unknown risk imposed by D’s “breach of duty”
- most states follow California folding secondary assumption of risk into comparative negligence—no longer defense

Question 20

Trespass to Land: Prima Facie

Answer 20

1. Actor A causes a physical invasion of property lawfully possessed by another (invasion can be in person or by animals devices or substances, for which of the actors is responsible)
2. A intended to make contact with the property invaded (A need not know, or have reason to know that the property is in possession of another)

Combines an intent requirement with a form of strict (‘no fault) liability

Question 21

Conversion and Trespass to Chattel - Prima Facie

Answer 21

Conversion = an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may just be required to pay the other its full value
- Like trespass doesn’t need fault (ex: taking another’s umbrella believing it to be yours)

Trespass to Chattel —> subject to liability to the possessor of the chattel if, but only if,

1. He dispossesses the other of the chattel, or
2. the chattel is impaired as to its condition, quality or value or,
3. The possessor is deprived of the use of the chattel for a substantial time, or
4. Bodily harm is caused the possessor or harm is caused some person or thing in which the possessor has a legally protected interest.

Unlike trespass, for liability need actual harm to property or deprivation of use

Question 22

Nuisance (how is similar and dissimilar to trespass)

Answer 22

Similar:
- requires p to have a possessory interest in affected property
- Frequently involves request for injunctive relief
- No proof of physical damage to property
- No proof of D’s failure to act reasonably

Unlike trespass:
- Intent to make contact with relevant physical space not required
- Usually a continuing rather than one instance
- Requires unreasonable interference with P’s use of her property
- Inquiry concerns the nature of the interference, not D’s conduct
- Liability turns in part on D’s interest and continuing the allegedly offending activity