1L TORTS: NEGLIGENCE GENERAL-DAMAGES SPRING 2010

• G.R.—a plaintiff is entitled to recover all actual
• damages (past, present, prospective) proximately caused by the defendant.

• B)
• Only tool at
• jury’s disposal is money; all damages (past, present, prospective) included in
• one lump sum

• A) Nominal—small sum to vindicate a person’s rights. Prevents D from acquiring prescriptive
• rights. (IE: shooting over a house or trespass)

I) Non-taxable

• B) Compensatory— make the P whole again-restore the P prior to the tort; closest financial
• equivalent of loss or harm suffered by the plaintiff

I) Non-taxable

• II) 2 main types:
• (1) General: non-economic damages, (2) Special: economic

C) Punitive—punishment to make an example of the defendant, and to deter defendant and others.

I) Taxable income

(1) Degree of reprehensibility of D’s conduct

(2) Disparity between the actual/potential harm suffered by P v. damages award

• (3) Difference between punitive damages awarded by jury v. amount authorized or imposed in
• comparable cases

Compensatory damages that are objectively measured; all of the P’s out of pocket expenses

I) Medical Expenses (Past and Future)

(1) Past—prove by producing the bills for medical expenses related to the injury.

• (2) Future—requires expert testimony to establish the anticipated medical needs and predicted costs
• (physician and economist).

(3) Entitled to only reasonable medical expenses.

(4) Unable to recover for

• (a) Medical procedures unrelated to the injury.
• Ex—pregnancy test

(b) Unnecessary procedures.

• (c) Excessively high procedures. Ex—$1,000/hr
• doctor

compensatory damges that are objectively measured; all of the P’s out of pocket expenses

• I) Lost Wages—look at what the person would have made based on the person’s wage at the time he was injured…. Or if not employed cost of
• replacement (IE: replace child care)

(1) Can collect only if the plaintiff will not recover and reenter the workforce.

(2) Two Requirements—

(a) Jury must be persuaded permanent injury

• (b) Expert testimony to determine life
• expectancy

(3) P who would not be expected to engage in employment until the distant future, temporarily unemployed, or voluntarily out of the workforce may recover for loss of future earnings.

(4) Jury considers individual factors (IE: age, nature of employment, etc)

compensatory damages that cannot be measured; subjective

I) Pain & Suffering and Mental Anguish

(1) P must be conscious to recover because if the plaintiff is unconscious, then he could not feel the pain and did not suffer.

(2) Present value-based on jurisdiction

II) Loss of Enjoyment of Life—

(1) Jurisdictional split whether P must be conscious to recover (aware of the loss)

• III)Permanent Disability and Disfigurement—Loss of Function or Appearance—scars, disfigurements, loss of senses, impotency,
• change of personality, etc…

IV)Emotional Distress—

(1) Can collect in one of two ways

• (a)
• Physical
• injury, or

• (b)
• Invasion of
• the plaintiff’s rights (IE: slander, libel, etc)

• V)
• Loss of
• Consortium—Claim by the spouse of
• an injured person for loss of conjugal relations, society, companionship, or
• household services during the time period that the injured person is recovering
• or for a permanent loss. Generally, has to be brought with the same cause of
• action as the injured party

I) Litigation-Induced Stress—because alleged tortfeasor should be able to defend himself.

II) Litigation Expenses

• Compensatory damages are exempt, but punitive damages are subject to
• taxation. Jury not instructed on
• taxes. Can use a structured settlement to avoid tax liability.

• Court considers the scope of the evidence and determines what would be the maximum a
• jury could reasonably award; above the maximum is excessive.

• II) An award of damages will be deemed excessive if it falls outside the range of fair and
• reasonable compensation or results from passion or prejudice, or if it is so
• large that it shocks the judicial conscience.

• G.R.—excludes evidence of compensation (payments/services) to the injured party from other collateral sources and such compensation is not credited against the tortfeasor’s liability,
• even though they cover all or part of the harm for which the tortfeasor is liable.

• (1) Includes: insurance policies, gratituties, employment benefits (sick leave, vacation pay,
• worker’s compensation), benefits from social legislation (Medicare-health
• coverage), government benefits (free care at Veteran’s hospital)

Rule does not apply and evidence is permitted:

(a) To show payments were made by:

(i) Tortfeasor D

(ii) Joint tortfeasor or one who mistakenly thinks he is a tortfeasor

(iii)Any person on behalf of D or tortfeasor (including insurance)

• (b) To rebut plaintiff’s testimony that financial
• necessity compelled the plaintiff
• to return to work early or forgo medical treatment.

• (c) To show the plaintiff attributed condition to
• some other cause.

(e) To show that the plaintiff actually continued to work instead of being out of work

• Prevents recovery of damages that P could have reasonably avoided after the injury/tort
• I) Objective Standard— reasonable prudent person (would submit to the medical procedure/act
• in the same manner) under the circumstance

• (1) No recovery for aggravation of damages or for damages that could have been avoided or
• lessened if the P fails to exercise reasonable care as a reasonable prudent
• person under the circumstances would. (IE: failure to submit to surgery,
• intentionally bleed out)

(2) Factors to Consider in Determining Whether Failure to Submit to Procedure was Unreasonable—

(a) Risk involved

(i) Chance of fatality does not bar application of avoidable consequence rule

(b) Probability of Success

(c) Expenditure of money or effort required

• Due process Clause of the 14 amendment prohibits the imposition of gross excessive or
• arbitrary punishments on a tortfeasor (State
• Farm Test) Award must be reasonable and proportional Factors to consider to
• determine whether punitive award is constitutional---

I) Degree of Reprehensibility of the Conduct—how bad did the D act

(1) Reprehensibility-- blameworthy

II) Difference of actual/potential harm suffered v. the punitive damages award

(1) No binding BL but 4/1 ratio or below recommended for guidance

• III)Difference between the punitive damages awarded by the jury v. the civil
• penalties authorized or imposed in comparable cases

• (1) Provide bearing on the seriousness with which a state views wrongful conduct. There
• should be some consistency.

• Available for
• intentional torts, aggravated wrongdoing, and negligence that involves
• recklessness, willful misconduct, and wantonness. Conduct that is merely negligent, even if it causes severe damages, is insufficient to justify punitive damages.

• B) Must bear some reasonable relation to the compensatory award. It should be presumed a P
• has been made whole for his injuries by compensatory damages

C) The burden of proof=clear and convincing evidence.

• D must be liable for compensatory damages + one aggravating factor is present and related
• to injury:

(a) Fraud

(b) Malice

(c) Willful/wanton conduct

(2) Aggravating factor must be proved by clear and convincing evidence

(1) Vicarious liability for acts/omission of another not applicable

(a) Person must personally participate or allow conduct consisting aggravating factor

(i) Corp, officer, director, manager

(2) Breach of K not applicable… must prove aggravating factor still

Vicarious liability for acts/omission of another not applicable

(a) Person must personally participate or allow conduct consisting aggravating factor

(i) Corp, officer, director, manager

(1) Punitive must be determined separately (by trier of fact) from other damages.

(2) Limited to 3x compensatory or $250,000, whichever is greater

• (a)
• If trier of
• fact awards more than permitted, court will reduce to max permitted

• (3)
• Trier of fact
• is unaware of cap amount

I) Exemption from cap: No cap on for driving while under influence of impairing substance (.08 or more)

(2) Commercial Vehicles: No cap (.04 or more)