Negligence: Damages

Question 1

How can a P who is claiming negligence win damages?

Answer 1

• P must prove damages, meaning that there must be a cognizable injury.
  o EXAMPLE: Vet negligently neuters a dog against P’s wishes. Unless the P was planning to breed or show the dog, the court will not allow P to recover because this is not a cognizable injury.

Question 2

Are nominal damages available for negligence?

Answer 2

• Nominal damages are not available.

Question 3

Are punitive damages available for negligence?

Answer 3

• Punitive damages are not available for just negligence.

Question 4

What are compensatory damages?

Answer 4

• Money damages that would return the P to pre-injury position

Question 5

What is required to win compensatory damages for negligence?

Answer 5

• Type of damage must be foreseeable (not the extent, but the type of damage);
• Must be reasonably certain (not speculative); and
• Not avoidable

Question 6

What is the avoidable consequences rule for negligence?

Answer 6

• P must take reasonable steps after injury to not increase/exacerbate the injury.
  o EXAMPLE: Drew negligently injures Polly, causing $10,000 worth of damages but Polly refuses to seek medical help and her damages went from $10,000 to $100,000. Drew can say that he does not owe the additional $90,000 because those damages could have been avoided.

Question 7

What are the two categories of compensatory damages?

Answer 7

• Special damages
• General damages

Question 8

What are examples of special damages?

Answer 8

• Pecuniary medical costs, lost wages, and cost of repair.
• Can recover past, present, and future damages; however, future damages will be reduced to present value.

Question 9

What is the collateral source rule for special damages?

Answer 9

• Collateral Source Rule: The fact that P has insurance to cover some or all damages does not mean that D does not have to pay up. D should not benefit from P’s foresight. Rule also applies to gratuitous services (e.g., spouse who provides caretaking for injured P).

Question 10

What are general damages?

Answer 10

• Pain and suffering. These are more controversial because they are intangible and difficult to measure

Question 11

When may punitive damages be available in the negligence context?

Answer 11

• Never recoverable just for negligent conduct. D’s acts must be more culpable than negligence - like willful, malicious, or reckless.

Question 12

What is the goal of punitive damages?

Answer 12

• Goal is to make an example of D so he and others will not engage in the same behavior.

Question 13

Is the wealth of the D relevant for measuring punitive damages?

Answer 13

• Wealth of D is highly relevant here.
• Still, the Due Process Clause limits the amount. Generally, more than 10% ratio to compensatory damages is considered to be unconstitutional.