Negligence: Damages

Question 1

What is the typical damages award to a P in a negligence case?

Answer 1

Compensatory Damages → To make P whole, put in position had an accident not occurred

Question 2

What are compensatory damages? Are they taxable?

Answer 2

+ Return plaintiff to pre-accident condition, measure past and future harm in single judgment
+ Compensate for amount and duration of loss

+ Compensatory damages are not taxable
Courts differ on whether to take this into account
Plaintiff also must pay attorney, so won’t fully recover

Question 3

What are pecuniary damages?

Answer 3

Pecuniary - Economic

Single recovery - judgment holds even if wrong (high or low)

Question 4

What might be included in pecuniary damages?

Answer 4

+ Property damage
+ Medical expenses: past, future
+ Income / Lost Wages: past, future

Question 5

What might a court look at to determine P’s past or future earnings lost as a result of the D’s negligence?

Answer 5

1) normal earning power
2) work-life expectancy in terms of years and potential advancement
+ can enter evidence that this person will die early because (i.e. smoker) …. defendant wants to argue to reduce award
+ or, this person has great genes and would live a long, long time
+ plaintiff wants to argue, longer life expectancy = higher award
3) discount rate (interest to be accrued on damages, also inflation)
+ some say interest and inflation offset
+ some have calculation

Question 6

What are non-pecuniary damages?

Answer 6

1) Pain and Suffering
2) Loss of enjoyment of life
3) Loss of Life claims

Question 7

How would a P make a successful non-pecuniary damages claim for pain and suffering?

Answer 7

Show evidence of physical and mental discomfort due to the injury; emotional response; frustration and anguish

Question 8

What would a non-pecuniary damages claim of loss of life enjoyment entail?

Answer 8

+ Limitations on persons life created by injury; limitation on life’s activities; inability to participate in activities
+ societal value on some activities over others

Question 9

True or false: Some cognitive awareness is required for pain and suffering/loss of enjoyment of life damages claims?

Answer 9

True.
+ worse condition of plaintiff (no cognitive awareness) –> then less recovery
+ BUT, awareness is what causes you to suffer that emotional trauma → no awareness, then no emotional trauma, so no recovery for pain and suffering

Question 10

What is a non-pecuniary loss of life claim?

Answer 10

+ area that is evolving

+ seek to compensate a decedent for the loss of value that the decedent would have placed on his or her own life.

Question 11

What is a wrongful death claim and who files?

Answer 11

Claim by decedent’s beneficiaries (spouse, children, parents) to recover their pecuniary losses by loss of a loved one (i.e. income or contribution to household)

Question 12

Do wrongful death claims include non-pecuniary damages?

Answer 12

Generally, only pecuniary.
+ Some now allow pain and suffering (loss of companionship, loss of consortium)
+ Decedent’s wages - decedent’s expenses
+ Replacement value of services (house, yard work)

Question 13

Why are wrongful death suits with children especially difficult re: damages?

Answer 13

+ Children → when expenses calculated, may end up saying child more of a liability than an assert
+ Without pain and suffering, cannot really recover for children

Question 14

What are survival statutes? Give an example.

Answer 14

Recovery of damages that deceased could have obtained before death

Claim by estate, acting on decedent’s behalf, for damages between time of injury and death

Ex: P in car accident, then dies a month later, can recover for the window of that month for medical, income, pain and suffering

Question 15

Do most courts allow for pain and suffering damages under a survival statute?

Answer 15

+ May be large when there is evidence that victim alive and conscious before death
+ Most courts allow pain and suffering for that window of time, but some don’t

Question 16

Will courts allow for pre-impact suffering under a survival statute?

Answer 16

Maybe? Would likely depend on the statute and the facts

Question 17

What is the doctrine of avoidable circumstances in relation to damages? Give an example.

Answer 17

Unreasonable behavior by plaintiff that does not cause the accident, but exacerbates harm

Even if defendant 100% at fault for accident, plaintiff’s recovery might be reduced if plaintiff failed to mitigate harm

Defendant uses this to decrease damages

There is always a reasonable obligation to mitigate damages
Ex: failure to obtain medical attention
Ex: Anticipatory Avoidable Consequences and failure to use seat belt or helmets

Question 18

What are punitive damages? Are they taxable?

Answer 18

Taxable (compensatory not)

Adequate punishment for defendants intentional conduct (malice, ill will, hate, fraud, oppression, conscious disregard), when compensatory inadequate as punishment

Question 19

Does a P need to show a D’s intent to collect punitive damages?

Answer 19

Not necessarily.
+ Recklessness: conscious disregard for the victim’s rights - sufficient to have punitive damages, don’t need intent
+ No punitive damages for anything less than recklessness

Question 20

What are policy arguments for and against punitive damages?

Answer 20

Pro: Deterrence (i.e. drunk driving); criminal punishment not enough for deterrence

Con: criminal system is for punishment; double punishment \
BUT well accepted now that can punish in tort law

Question 21

What are the requirements for a P to show in a respondeat superior + punitive damages case?

Answer 21

1) The principal or a managerial agent authorized the doing and the manner of the act; or
2) The agent was unfit and the principal or a managerial agent was reckless in employing or retaining him; or
3) The agent has employed in a managerial capacity and was acting in the scope of employment; or
4) The principal or a managerial agent of the principal ratified or approved the act

Question 22

How have different jurisdictions dealt with tort reform?

Answer 22

1) Abolish punitive damages
2) Heighten standard of proof to clear and convincing
3) Two trials - one on liability, one on punitive damages and for punitive wealth of defendant cannot get to jury
4) Plaintiff must share award (1/3) with the state
5) Place a cap on max amount that punitive award can be

Question 23

How would a D go about appealing an excessive punitive damages award?

Answer 23

Appellate Standard for Review
+ To reverse due to excessive award → “so large that it shocks the conscience of the court and suggests passion, prejudice, or corruption of the jury”

Question 24

Explain the Collateral Source Rule

Answer 24

CL: P’s recovery against D not affected by recovery from other (collateral) sources

Today: Extend collateral source rule for when plaintiff compensated by family or friends

Question 25

What is the policy behind the Collateral Source Rule?

Answer 25

1) P’s in personal injury actions can still recover full damages even though they already have received compensation for injuries from such “collateral sources” as medical insurance
2) D doesn’t get windfall for plaintiff’s thrift
3) Liability not reduced because plaintiff has insurance

Question 26

Are juries allowed to know about a plaintiff’s additional sources of money for recovery beyond the defendant?

Answer 26

No. Jury not allowed to know about the collateral sources of recovery

Question 27

What is the policy for expanding the collateral source rule to family and friends?

Answer 27

+ The fact that either under K or gratuitously such treatment has been paid for by another does not defeat the cause of action to recover from tortfeasor
+ Appellate decisions have held that gratuitous medical care is recoverable
+ Most jurisdictions all collateral source rule to apply to gratuitous payments
+Promote private charitable assistance. Also, lessens burden on the state
+ Even without requirement of reimbursement, P may want to repay donor.
+ Not double recovery because helps compensate for attorney’s share