Page 25 Flashcards
What are some examples of things that could be considered damages for negligence?
- past or future medical expenses
- lost wages
- lost earning capacity
- pain and suffering
Must every case of negligence have a showing of actual damages?
Yes, actual damages must be shown to person or property with the purpose being compensatory and not punitive
What does compensatory damages mean?
Restores the plaintiff as much as possible to his condition before being injured
Can you recover purely economic loss under damages for negligence?
No, unless it comes from a personal injury or property damage
If a factory burned down because of the defendant’s negligence, is the defendant liable for the owner’s economic loss?
Yes, but only because there was actual property damage
If a factory burns down because of the defendant’s negligence, would he be liable for the loss of income that the workers suffered?
No, because they didn’t suffer an actual injury or property damage, and you cannot recover purely economic loss without one of those two things in negligence
Can nominal damages be recovered in negligence?
Generally no, but sometimes you can recover for the little injuries like watering eyes
Are punitive damages recoverable in negligence?
Usually only if the defendant had a bad state of mind. Ie: willful, wanton, reckless, or malicious
Tort damages are meant to be what kind?
Compensatory
Can punitive damages be given for reckless conduct in negligence?
Yes, for something like drunk driving
What are general damages?
Those that are inherent to the injury itself, like pain and suffering, disfigurement, disability, etc.
What is pain and suffering?
Defendant is liable for any pain or suffering experienced before death, even if plaintiff only lives a short time. Plaintiff must be sufficiently conscious to experience the pain and suffering
If a baby drowned, could he recover pain and suffering damages?
Yes, one case awarded $30,000 for the suffering of a baby that drown
What are the four major categories of general damages?
- pain and suffering
- pre-impact/post-impact
- unexpected damages
- destruction of personal property
Can loss of enjoyment of life be a part of pain and suffering damages?
Yes, so long as the plaintiff is conscious of the loss
What are pre-impact and post-impact damages?
Damages given for the fear caused by apprehension of impending death
What is an example of pre-impact damage?
One case awarded $15,000 for the six seconds of fear before a fatal crash
What are unexpected damages?
Since you take the victim as you find him, you’re fully liable for all injuries, even if they come from the plaintiff’s abnormal sensitivities or an aggravation of a pre-existing condition
What do you get for destruction of personal property as a general damage?
- MV: market value is usually given, but if there isn’t one, then….
- replacement: the cost of replacement or reproduction is given. If that is impossible, then…..
- value: the value is given to the owner
Is it possible to recover unusual sentimental value under destruction of personal property for general damages for negligence?
Usually no, like you can’t recover for the unusual sentimental value of losing something like a photo album
What are special damages?
P can recover all economic losses and expenses as a result of the injury
What are examples of special damages?
- medical bills
- lost wages
- business profits
- cost of hiring help
Special damages include what?
Expenses already incurred and those the plaintiff thinks will likely be incurred in the future
How are lost wages computed?
- traditional/majority: before income tax
- federal rule: after taxes
How are future economic losses calculated?
Looks at the period of time the defendant’s disability is expected to last, and includes inflation
How is inflation computed into future economic losses?
- majority: include the probable inflation rates, then discount the award to its present value (amount it would be worth it if it was now invested at a reasonable rate).
- minority: thinks the discount factor and the inflation rate are about the same, so you don’t have to use either since they will balance each other out
What is comparative fault?
If some fault for your injury was your own, you can collect minus the amount that you were responsible for
What is joint and several liability?
When two or more defendants act in concert or independently to injure a plaintiff, and damages can’t be allocated to a particular defendant, then all are liable for the entirety of the plaintiff’s injury
How can the plaintiff collect damages under joint and several liability?
Can enforce a claim against more than one defendant, or choose just one, but he can’t collect more than his full damages
What is it called when defendants in a joint and several liability situation get money from the other responsible tortfeasors?
Seeking contribution, which can happen as long as it is proven that everyone else is liable
Can a tortfeasor get contribution from another tortfeasor that is immune from liability, like a child?
No
What is joint liability?
Two or more people act in concert to commit a tort, act independently but cause a single injury, or share responsibility because of vicarious liability
What does it mean to act in concert?
To commit a tort together, or aid/encourage another to commit a tort
If one defendant can’t pay in a joint liability situation, what happens?
The plaintiff can get the whole amount from the other defendant, because each individual is fully liable for the plaintiff’s damages
What are damages for negligence?
The cognizable injury suffered as a result of the defendant’s breach
