Page 40 Flashcards
What must the plaintiff prove for damages for SPL?
The damages were caused by the defendant’s conduct
What are some examples of personal injuries that can be collected for under SPL damages?
- pain and suffering
- medical expenses
- loss of income
Most courts don’t allow what kind of recovery for damages for SPL?
Recovery for purely economic damages, although the minority view does allow this
What are the two categories of tort damages?
general and specific damages
What are general damages for SPL?
Anything that directly flows from the defendant’s act, which can be both pecuniary and non-pecuniary
What are special damages for SPL?
Anything you can get in addition that is specifically pleaded and proven
What are examples of specific damages for SPL?
Slander per se or punitive damages
How are punitive damages considered specific damages for SPL?
They must be specifically asked for and specifically proven to be appropriate and deserved
What is the point of punitive damages?
Punish and deter
What is the Supreme Court rule to figure out punitive damages?
They must bear some reasonable relationship to the actual damages
What are punitive damages usually measured by?
Damages +3 times
Sometimes huge corporations don’t abide by the damages +3 times rule for punitive damages, why?
Because they have to be charged more in order to teach them a lesson
What is necessary in order to find punitive damages?
Some degree of malice on the defendant’s part
What is the definition of malice in order to find punitive damages?
Ill will, hatred, or reckless disregard for the rights of the plaintiff
If only negligence is present, can punitive damages be given?
No, because there is no malice
Can punitive damages be applied to the D’s that are vicariously responsible?
Yes, like employers
When measuring punitive damages, you must consider what?
The degree of defendant’s responsibility, and an admission of defendant’s wealth to figure out what a proper punitive damage would be
What is the way that some courts deal with punitive damages to make sure that everything comes out fairly?
They bifurcate the trial so that evidence isn’t admitted until the jury has already found liability
What are compensatory damages?
Damages that are meant to return the plaintiff to his pre-injury position and given to provide restitution for the harm
What are the two different kinds of compensatory damages?
Pecuniary and nonpecuniary
What does pecuniary mean?
Economic
What are pecuniary damages?
These compensate for economic consequences or expenses of the injury
What are some examples of pecuniary damages?
- medical expenses
- lost earning capacity
- medical monitoring
- custodial care
What type of compensatory damages do most states usually cap recovery for?
Nonpecuniary damages
What did nonpecuniary damages compensate for?
Physical and emotional consequences of the injury
What are examples of nonpecuniary damages?
Pain and suffering, mental distress
When can a plaintiff recover for future damages?
If they are reasonably certain to happen
What is included in property damages?
Physical injury or disposition of property
If you have been totally dispossessed of your property, what are the damages you can get?
Full market value of the item
If you’ve been dispossessed of your real property, what are the damages that you can get?
Rental value while dispossessed
If your property has suffered physical harm, what are the damages you can get?
Diminished value of the property
Economic harm alone is only recoverable where?
In contract or warranty, not products liability
What is an example where you can recover for a product being damaged in product liability?
If separate property is damaged, like a vacuum shorts out and burns down your house, you can get recovery for the house
If a product only damages itself, where is the only place you can recover for that?
Warranty
What is the mitigation rule/avoidable consequences doctrine?
If you are injured by someone else’s negligence, you must use reasonable care to promote recovery and prevent aggravation or increase of the injuries
Who has the burden of proof under the avoidable consequences doctrine?
D must prove that plaintiff failed to reasonably mitigate his damages
What is another name for the avoidable consequences doctrine?
Mitigation rule
What is another name for the mitigation rule?
Avoidable consequences doctrine
You only have to use what kind of care under the mitigation rule?
Reasonable care
What are the factors to decide reasonable care under the mitigation rule?
- the risk involved in mitigation
- probability of success
- pain and effort
- whether plaintiff could afford mitigation
Why does the mitigation rule have nothing to do with contributory negligence?
This is a rule of damages and the plaintiff’s failure to mitigate his damages didn’t cause or contribute to the original accident
If you can prove that the plaintiff didn’t mitigate his damages, what does that do?
Reduces the amount of damages he can recover
What are the two requirements to show the avoidable consequences doctrine?
- Plaintiff’s conduct exacerbated the initial injury
- Plaintiff didn’t take reasonable action to lessen damages
What is the collateral source rule?
All collateral benefits must be ignored by the court when figuring out defendant’s liability
What is the rationale behind the collateral source rule?
The plaintiff’s ability to collect from other sources like insurance should not affect how liable the defendant is
What is subrogation under the collateral source rule?
If an insurance company pays a claim, they can go to court to recoup the payment if the plaintiff has gotten money from the defendant and plaintiff must pay back the insurance company to prevent double recovery
What are damages for strict product liability?
- personal injuries
- wrongful death
- property damage
