Torts 4--Damages Flashcards
Damages - Negligence
Damages for negligence means actual harm or injury. Unlike the situation for some of the intentional torts, damage will not be presumed. Nominal damages are not available in an action in negligence; some proof of harm must be offered.
Torts>Damages
What are damages, and are damages presumed?
Damage is an essential element of plaintiff’s prima facie case for negligence. This means actual harm or injury. Unlike the situation for some of the intentional torts, damage will not be presumed. Thus, nominal damages are not available in an action in negligence, some proof of harm must be offered.
Torts>Damages
What damages are recoverable in an action for personal injury?
Plaintiff is to be compensated for all his damages (past, present, and prospective), both special and general. This includes fair and adequate compensation for economic damages, such as medical expenses and lost earnings, and noneconomic damages, such as pain and suffering. Plaintiff is also entitled to compensation for impaired future earning capacity, discounted to present value so as to avoid excess award, i.e. plaintiff receives an amount that, if securely invested, would produce the income that the jury wishes him to have.
Torts>Damages
Is it necessary to foresee the extent of the harm with regard to damages in a personal injury action?
No. As noted in the proximate cause section, it is generally not necessary to foresee the extent of the harm. In other words, a tortfeasor takes the victim as he finds him.
Torts>Damages
do plaintiff’s noneconomic damages include damages for any emotional distress suffered as a result of the physical injury?
no
Torts > Damages > Damages Recoverable in the Action>Personal Injury > Emotional Distress Damages
how are the damages for property damage measured?
the reasonable cost of repair
OR
if the property has been almost or completely destroyed, its fair market value at the time of the accident
courts generally do not permit recovery of emotional distress damages for negligent harm to property
Torts > Damages > Damages Recoverable in the Action > Property Damages
are punitive damages available in negligence cases?
generally, no, punitive damages are not available in negligence cases.
However, if the defendant’s conduct was “wanton and willful,” reckless, or malicious, most jurisdictions permit recovery of punitive damages
Torts > Damages > Damages Recoverable in the Action > Punitive Damages
What certain items are not recoverable as damages in negligence actions? List two examples of these items.
Nonrecoverable items. These include: 1) Interest from date of damage in personal injury actions; and 2) Attorneys’ fees.
Torts>Damages>Damages Recoverable in the Action>Nonrecoverable Items
Does a plaintiff have a duty to mitigate damages?
Yes. As in all cases, the plaintiff has a duty to take reasonable steps to mitigate damages.
Torts>Damages>Duty to mitigate damages
Are there any repercussions for failing to mitigate damages?
Yes. Failure to mitigate damages precludes recovery of any additional damages caused by aggravation of the injury.
Torts>Damages>Duty to mitigate damages
Collateral Source Rule
As a general rule, damages are not reduced or mitigated by reason of benefits received by plaintiff from other sources, e.g., health insurance, sick pay from employer. Hence, at trial, defendants may not introduce evidence relating to any such financial aid from other sources.
Torts>Damages>Collateral Source Rule
Is there an exception to the collateral source rule?
In certain states, an exception to this rule has been applied in certain types of actions (e.g., medical malpractice actions), allowing defendants to introduce evidence of insurance awards or disability benefits.
Torts>Damages>Collateral Source Rule
The damages rules are also generally applicable to actions based on ______.
Intentional torts.
Torts>Damages>Collateral Source Rule
