Tort Damages

Question 1

Types of Tort Actions

Answer 1

Intentional Torts (battery, assault, trespass to land/chattles, Conversion) ;
Conversion: intent to convert for your own use. occurs when a party takes chattels with intent to deprive them of it
Negligence/Strict Liability;
Intentional/Material Misrepresentation;
Defamation;
Intentional Interference w/ K;
Products Liability;
Privacy Torts;

Question 2

Compensatory Damges

Answer 2

Compensatory damages are damages to the plaintiff for losses resulting from a tort or property injury. Can be for past, present, or future harm.

Question 3

Measurement of Compensatory Damages

Answer 3

-Actual and reasonably anticipated.
- As definite and certain as possible.
-Cannot be based on speculation or subjective value
- Cannot be arbitrary and/or average amount.

Preferred measurement is Fair Market Value (FMV). FMV is a tool but not necessarily an ultimate measurement. Parties may disagree on what the FMV is. You can put two FMV’s.

Question 4

Standard Measurement for Partial Loss

Answer 4

Diminution in value: i.e. damage to property not amounting to a complete loss: difference between FMV of item prior to the harm and FMV after the harm. Subtract value after the harm from value before the harm to determine amount of damages. May use repair value if necessary.
If no diminution → then cost of repair

Question 5

Fluctuating value property

Answer 5

FMV at the time of harvest, or in the alternative, at the time of highest value (applies to property with fluctuating value such as crops or stocks).

Question 6

Competing Measurements

Answer 6

the court will recognize competing theories of measurement but generally will award the lesser of two valid measures

Question 7

When property is unique (special use property):

Answer 7

court will allow other measures such as cost of repair or replacement if no FMV

Question 8

When will a court discount damges?

Answer 8

if P does not plan to make repairs right away. (Trinity). Might order installments/not all at once

Question 9

Authenticity

Answer 9

A demand for tort damages must stem from a genuine tort (such as fraud or misrepresentation) and cannot be solely based on a pure contract obligation. In other words, it is not permissible to repackage a contract breach as a tort claim in order to increase recovery. However, the terms in the contract can be used as a base for calculating tort damages when the tort makes the contract invalid or obstructs performance of the contract, and punitive damages (see below) would also be available in tort. (Formosa Plastics)

Question 10

How to tell between K and Tort Damages:

Answer 10

A fraud cause of action requires a material misrepresentation of a falsehood that:
(1) the defendant either knew to be false when made or
(2) that the defendant asserted without knowledge of its truth and
(3) which was intended to induce the plaintiff to act and
(4) the plaintiff relied upon the false statement and
(5) The fraud caused injury to the plaintiff.
→ A promise of future performance constitutes an actionable misrepresentation if the promise was made with no intention of performing at the time it was made.
→ However, per Formosa, the mere failure to perform a contract is not evidence of fraud. Rather, a plaintiff must present evidence that the defendant made representations with the intent to deceive the plaintiff and with no intention of performing as represented.
Failing to perform because of other circumstances (problems with suppliers, doing a bad job, etc.) is not grounds for a claim of fraud; it is just a contract breach.

Question 11

Punitive Damages

Answer 11

General Rule: Punitive damages are available for tortious conduct or gross negligence NOT ordinary negligence.

Question 12

Punitive Damages for an Individual

Answer 12

When D is an individual, the punitive damages are limited to treble (3 times the amount of actual damages). Defendant must engage in oppression, fraud, or malice in action for breach of obligation not stemming from contract.

Question 13

Punitive Damages for a Corporation

Answer 13

When D is a corporation , punitive damages should not exceed 9 times the actual damages, or 9:1.

D must have acted with conscious disregard for the rights of others, must be aware of probable dangerous consequences.

Question 14

Test for Corporate Punitive Damages (Grimshaw/Gore)

Answer 14

1. Reprehensibility of corporate conduct in assessing fault only
2. [Sometimes] Wealth of D
3. Ratio Amt. of compensatory damages awarded: should not exceed 9 times the actual damages, or 9:1.
4. Amt that will serve as punishment and deterrent,

Limits on Excessive Punitive Damages
1. Reprehensibility of corporate conduct in assessing fault only
2. [Sometimes] Wealth of D
3. Diff between punitive damages and civil/criminal sanctions available by statute (Gore) –> only applicable if there is a statute.

-Remember: immunity for Government agencies, will likely not get punitive damages

Question 15

Nominal Damages

Answer 15

General Rule: Nominal damages are available to establish liability when no actual harm results. The measurement is generally a small amount ($1) that is sufficient to assign liability to the defendant. Nominal damages can be springboarded to punitive damages.

Ex: Trespass to property does no actual damage to the property, but represents an invasion nevertheless.

Question 16

Mitigation

Answer 16

A plaintiff who has suffered an injury or loss should take reasonable action, where possible, to avoid additional injury or loss. The failure of a plaintiff to take protective steps after suffering an injury or loss can reduce the amount of recovery.

Question 17

Personal Injury Damages

Answer 17

Three categories: (1) expenses incurred by reason of the injury (usually medical); (2) lost time or earning capacity; (3) pain and suffering in its various forms, including emotional distress (loss of enjoyment; anxiety or fear of future harm, etc.)

Duration of injury: Damage may be permanent or may continue to cause harm for a specified period of time in the future

Structure of Damages Payment: Compensation is usually but not always in the form of a lump-sum award from the court or a paced recovery in settlement

Measurement of Damages: Damages can be calculated in some jurisdictions on per diem or unit of time basis for evidentiary and persuasive purposes

Mitigation or Reduction of Damages: A plaintiff who has suffered an injury or loss should take reasonable action, where possible, to avoid additional injury or loss. The failure of a plaintiff to take protective steps after suffering an injury or loss can reduce the amount of recovery.

Question 18

Wrongful Death:

Answer 18

Recovery for wrongful death only available by statute. Each state has a wrongful death statute.

Measurement of damages: calculated by economic loss to survivors dependent on the deceased. Some states allow recovery for lost emotional support.

Punitive damages usually not recoverable

Question 19

Survival Statute:

Answer 19

Survival actions apply to any cause of action that might have been vested in the decedent before his or her death such as hospital bills, credit card bills, etc. Estate of the deceased is liable for such debts.

Measurement of damages: Damages are based on those losses suffered by the deceased between time of injury and time of death. They are the survival of whatever action the deceased would have had against the defendant if he had lived – for example, his pain and suffering, loss of wages, medical expenses between time of injury and time of death, and punitive damages.

Question 20

Slayer Rules :

Answer 20

The “slayer rule” is a statutory common law rule that prohibits payment to a beneficiary of a life insurance policy if the beneficiary wrongfully, intentionally, feloniously, or willfully kills the insured.

Question 21

Son of Sam Laws:

Answer 21

Courts have also held that a criminal or other wrongdoer cannot profit by publishing anything from his or her wrongdoing (“making a second killing”). In an effort to accommodate the perpetrator’s 1st A. freedom of expression, some courts require restitution (by means of constructive trust on the profits) to the victims of any benefits conferred on the wrongdoer