II. Torts

Question 1

Generally

Answer 1

Damages an indespenable element of any tort claim. Recovery is hollow without damages

Question 2

Measure of Damages

Answer 2

• Typical Measure: Amount necessary to make the Plaintiff whole
• Public Policy: Compensation of the injured
• versus K damages: contract, consequential damages usually not allowed unless by statute or the K itself

Question 3

Types of Damages (Complementary or Corresponding Type)

Answer 3

• Compensatory–>Punitive
• General–>SPecial
• Liquidated–>Unliquidated

Question 4

Three Types of Compensatory Damages

Answer 4

1. General
2. SPecial
3. Nominal

Question 5

Relationship b/w compensatory damage and wrongful act

Answer 5

• Direct
• Consequential

Also remember proximate cause

Question 6

General Damages

Answer 6

• Presumed to flow from the commission of a tortious act. Condiered to be noneconomic or nonpecuniary in nature
• “The enlightened concious of an impartial jury”

Question 7

General Damages: Pain & Suffering

Answer 7

Pain and Suffering (Physical or Mental)

• Physical: Inferred from personal injury.
  
  • Can be proved by subjective (statement of injury) and objective evidence (physical signs/circumstantial evidence)
• Mental: Accompanying personal injury.
  
  • Must prove it. Usually have to prove inentional, wilful or want conduct by defendant.
  • Negligent conduct must involve an impact resulting in a physical injury
  • Generally the same test as punitive damage when entire injury is mental
• Avoid bogus claims

Question 8

Special Damages

Answer 8

• THe lost of money or something that money can buy
• Piece of paper: production of receipt, pay stub, medical bills, etc.
  
  • cost must be reasonable ($10,000 physical therapy session not reasoable when you get comparable care for $100)
• Must be pled with particularity (Can’t say I think it cost $75)

Question 9

Special Damages: Property

Answer 9

• measure of damage to prop is alwasy
  
  • difference between the market value of hte property without injury
  • and the market value with injury
• ALso can be satisfied by the cost to repair to return to original (or better condition), whichever is lesser
• CHATTEL: Can only be compensated for the chattel value; sentimentality does not come into play. Although could make a charge that it was intentional infliction of emotional distress if you killed him.

Question 10

Special Damages: Motor Vehicle Accident

Answer 10

• GA statute provides separate damage for property value and physical injury. Can make claim for those values wihtout prejudicing later claim for personal injury

Question 11

Special Damages: Future damges

Answer 11

Future special damages must be reduced to present cash value (if paying medical expenses for 10 years, must pay it in value today, not with inflation)

Use discount rate to calculate

Question 12

Punitive Damages: Generally

Answer 12

• Must prove by CLEAR AND CONVINCING EVIDENCE
• used to punish or deter behavior of defendant
• must ask for punitive damages to get them–jury cannot just award them
• Trial Procedure: Bifurcated trial in which there are two verdicts:
  
  • 1) liability & compensatory damages + determination whether you believe punitive damages should be awarded
  • 2) Determination of whether punitive damamges should be
• Finances of the Defendant matter in determining how mcuh it takes to punish
• Punitive Damages against the sovereign are alwasy exempt
• INjury to Peace Happiness or Feelings is not availabe–goes to pain and suffering which is clculated similarly

Question 13

Punitive Damages: Recovery Caps

Answer 13

• Generally capped @ 250k/CLaim
  
  • exception for Products liability and specific intent which there are no limits
    
    • In Products, 75% of punitive goes to state
    • the only one suing can be the one who recovers
  • SCOTUS says they must be in a reasonable ratio to the compensatory daamges, which must usally be aless than 10:1
• Both deemed constitutional by Georgia Supreme Court
• No Caps for specific intent torts or while under the influence of alcohol or drugs

Question 14

Restrictions on Damages

Answer 14

1. Mitigation of Damages
2. Speculative Damamges
3. Collateral Source Rule

Question 15

Mitigation of Damages

Answer 15

• duty to mitigate applies in trot actions as well as contract actions
  
  • Judged by a reasonableness standard
• Does not apply to intentional torts such as fraud,
  
  • nor the failure to wear a seatbelt i

Question 16

Speculative Damages are not Recoverable

Answer 16

• B/c of proximate cause as well as cause in fact
• LOST FUTURE PROFITS only recoverable when (e.g history of profits)
  
  • 1) the amount of future profits are reasonably certain AND
  • 2) Proximately caused by the defendant
• Remote damages recoverable when D acts KNOWINGLY: started fire in her barn knowing that it would burn neighboring barn’s business

Question 17

Collateral Source Rule

Answer 17

• Rule of evidence that excludes evidence of payments made to plaintiff by other sources in contemplation of hte injury
  
  • (e.g. P insurance covered cost of medical care; tort damages will likely go to repay insurance)
• Effective in GA

Question 18

Damages for Specific Torts

Answer 18

1. Loss of Consortium
2. Conversion
3. Fraud

Question 19

Loss of Consortium

Answer 19

• Uninjured spouse suing for loss of consortium UP UNTIL WHEN SPOUSE DIES–cannot collect on dead person
• Includes for loss of services, soceity, companionship and affection
• Measured b the enlightend discretion of an impartial jury
• Loss of consortium for child applies only to minor chilren in GA
• Loss of parental consortium not availabe

Question 20

Conversion

Answer 20

Three possible remedies:

1. Give it back as it was when he took it
2. Pay market price for it
3. Get rent for each day taken, plus recieve it back

Market value calculated by the highestd proved value at time between conversion and trial

Question 21

Fraud

Answer 21

• The benefit of the bargain to the plaintiff as anticipated (in contrast to the normal restitution value)
  
  • why? restitituoin not sufficient alone–shouldn’t just return him to where he was, return him to where he thought he’d be
• Other damages available include punitive, attorney fees and consquential