Torts II: Damages

  1. Zimmerman v. Ausland
    Every tort victim has the duty to take reasonable measures to mitigate damages for injuries which are caused by the tortfeasor

    F: Zimmerman (P) sought recovery from Ausland (D) for claimed permanent injury damages suffered as a result of Ausland's negligence. At trial, an expert testified that had Zimmerman undergone treatment, the injury would not have been permanent.

    Rule: A person may not recover damages for permanent injury if the permanency could have been avoided by treatment and a reasonable person under the same circumstances would undergo the treatment. 
  2. Mitigation of Damages
    A requirement that one injured by reason of another's tort or breach of contract exercise reasonable diligence and ordinary care to avoid aggravating the injury or increasing the damages. 

    The term also refers to D's request to the court for a reduction of damages owed to P, a request that D justifies by reason of some evidence that shows P is not entitled to the full amount that might otherwise be awarded to him. 

    In every tort case, P has a duty to mitigate damages. D must how that P's conduct in failing to mitigate the damages was unreasonable.
  3. Pure Economic Loss
    Arises when a person suffers pecuniary loss not consequent upon injury to his person or property. The cases fall into two categories:

    1. Negligent misrepresentation or misstatement causing economic loss; and 

    2. Negligent acts causing economic loss
  4. Parasitic Damages
    Damages tacked onto some other tort
  5. Montgomery Ward & Co., Inc. v. Anderson
    Anderson (P) was badly injured in a fall while she was shopping at Montgomery Ward's. The personnel at the store sent her to the hospital to be treated. She had an agreement with the hospital for her services to be discounted by 50%. D moved IN LIMINE to prohibit Anderson from presenting the total amount billed by the hospital and asked that Anderson's evidence be limited tot he actual amount she would be responsible to pay. Anderson asserted that the collateral-source rule would prohibit D from introducing evidence of the discount. Trial court excluded the evidence.

    Q/P: Is the forgiveness of a debt for medical services a collateral source to be sheltered by the collateral source rule?

    Rule: Yes. Gratuitous or discounted services are a collateral source not to be considered in assessing the damages due to a personal injury P.

    Collateral source rule applies unless the evidence of the benefits from the collateral source is relevant for a purpose other than mitigation of damages.
  6. Collateral Source Rule
    If an injured P receives compensation from a source, independent of D, the payment should not be deducted from the damages he would receive from D.

    Applies unless the evidence of the benefits from the collateral source is relevant for a purpose other than mitigation of damages. 

    4 Situations Where Collateral Source Rule Doesn't Apply:

    1) To rebut P's testimony that he was compelled by financial necessity to return to work prematurely or to forego additional medical care; 

    2) To show that P had attributed his condition to some other cause, such as sickness;

    3) To impeach P's testimony that he had paid his medical expenses himself;

    4) To show that P had actually continued to work instead of being out of work as claimed
  7. Motion in Limine
    A motion made out of the presence of the jury to exclude objectionable evidence.
  8. Law A/B Damages for Pets
    p. 565

    Other than training and vet expenses, one cannot get damages for loss of consortium or emotional distress for death of a pet
  9. Brittain's Unofficial Rule
    Damages in torts usually reinforces the class structure
  10. Cheatham v. Pohle
    F: After Cheatham and Phole divorced, Pohle retained several nude photos of his ex wife and publicly posted them with all her contact information. Jury awarded her $100K in compensatory damages and $100K in punitive damages. By state statue, 75% of punitive damages award was payable to the Indiana Violent Crime Victims' Compensation Fund. Cheatham contended that the statute violated the Indiana and U.S. Constitutions by taking her property without just compensation. 

    Q/P: Does a statute allocating a portion of any punitive damages award to the state violate the Takings Clause of the U.S. and Indiana Constitutions?

    H: No. Punitive damages are not intended to make P whole or value P's injuries. Punitive damages are just to deter and punish bad behavior. 

    D's financial ability to pay is generally irrelevant to any damages act. 
  11. Prentis v. Yale Mfg. Co.
    F: Prentis, a foreman in an automobile dealership's parts department, utilized a battery-powered forklift to lift an engine into a truck's cargo bed. The Yale Manufacturing forklift was a stand-up variety, rather than a riding machine with a seat, and it was operated by lifting its handle up and down. When the machine experienced a power surge, Prentis lost his footing and fell.

    Px: P sued for an alleged design defect that Yale should have made a seat or platform for the forklift operator. Trial judge refused to insturct jury on breach of warranty. Court of Appeals reversed for wrong jury instruction. 

    H: A negligence test should apply to products liability actions predicated upon defective design. 
  12. Risk-Utility Test
    Product is defective as designed only where the magnitude of the hazard outweigh the individual utility or broader societal benefits of the product.
  13. O'Brien v. Muskin Corp.
    F: Gary O'Brien was injured when he dove head-first into an above-ground swimming pool. There was a warning on the outer wall of the pool that warned "DO NOT DIVE." 

    Px: O'Brien sued Muskin Corp for a design defect (slippery vinyl surface of the bottom of the pool) and lack of adequate warnings. Trial court didn't allow jury to consider the vinyl liner only the adequacy of the warning. Appealte reversed judgment for Muskin and O'Brien appealed.

    Q/P: Does P bear the burden of proving a design defect based on a rusk-utility analysis?

    H: Yes, P bears the burden of proving a design defect based on a risk-utility analysis.
  14. 7 Factor Evaluation for Risk/Utility
    1. Utility of the product to the public as a whole and to the individual user

    2. The nature of the product that is, the likelihood that it will cause injury

    3. The availability of a safer design

    4. The potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced

    5. The ability of P to have avoided injury by careful use of the product

    6. The degree of awareness of the potential danger

    7. The manufacturer's ability to spread any cost related to improving the safety of the design
  15. Necessity for Showing Unreasonable Danger
    The product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics
Card Set
Torts II: Damages
Torts II Spring 2014 Chapter 10 - Damages