Torts Flashcards
Tort Damages
Amount necessary to make the plaintiff whole
Policy - fully compensate the injured P but no more
General Damages
Noneconomic damages (no economic market) that flow from the commission of a tortious act. Includes pain and suffering, mental anguish, etc.
Remember: Memntal pain and suffering requires physical impact and physical injury. No recovery for mental distress otherwise IIED.
Special Damages
“Paper” damages where there is receipt. Must be plead with specificity.
Determining Damages
Damages = FMV (at time of accident) - FMV (after accident)
This will generally be the cost to repair the property back to the pre-tort value.
However, if the cost of repair exceeds the pre-tort value then the property may be “totaled” so the FMV at the time of the accident is the damages.
Sentimental Damages
Are not recoverable
Motor vehicle accident - split claims
Georgia allows a person to repair the car and settle the claim to get back on the road while being able to bring a subsequent personal injury claim later.
Present value damages
Any award by a jury must be for present value. So take whatever the jury award is and apply the discount rate.
Punitive Damages - procedure
Damages to punish and deter must be plead and proven by clear and convincing evidence. Georgia provides for bifurcated trial. Evidence presented for compensatory liability and then punitive liability; then if necessary punitive damages.
No punitive damages against sovereign: U.S. to Bibb County.
Evidence: For punitive damages, evidence of someone’s wealth is admissible
Punitive - recovery caps
$250k per claim
Exceptions: Products liability and Specific Intent
Supreme Court also limits under Due Process and seeks an amount that is in reasonable ration to compensatory damages (10:1)
Products liability: 75% of recovery goes to State and there can be only 1 recovery of punitive damages for a particular product defect.
Specific Intent: No Cap
Drinking and Driving Exception: If you have intent to drink and drive, and then kill someone there is no cap. Georgia says intent to drink and drive is like the specific intent to kill someone.
No recovery of punitive damages for only a claim of IIED
Duty to Mitigate
Applies in tort and contract. P’s have a duty to mitigate their damages and not cause further harm.
Not applicable to intentional torts or fraud. Also, does not apply to seatbels
Speculative Damages
SD are not recoverable. Proximate and cause in fact determine whether speculative damages are recoverable.
Lost future profits are recoverable when the amount is reasonably certain and proximately caused. Typically, the business needs to show a history of profits to determine.
Collateral Source Rule
Payments from sources independent of the D and collateral to the plaitniff’s own interests cannot be considered by the jury in determining damages. Both an evidentiary and substantive rule so that jury provide the proper award of damages against the D.
Loss of consortium
Damages to the uninjured spouse as a result of her loss of consortium with the injured spouse from the time of injury until death. (no loss of consortium after death!)
Measure: loss of services, companionship, affection. (general damages - enlightened conscious of the jury)
Can parent’s get loss of consortium? Limited to services provided by the minor
Conversion
Three elections:
1) Give back chattel;
2) Pay the FMV to replace chattel;
3) rent for each day the chattel was missing.
If he pays the FMV of the chattel it is measured from the highest FMV between the time of conversion and time of trial.
Fraud
Restitution or the measure of the benefit of the bargain to the Plaintiff as if deal had gone through. Because merely providing compensation for P is not sufficient deterrent for fraud.
Punitives, and attorney fees also available.
