Torts II Outline

TORTS: SEMESTER 2
 
I. Damages
 
– Nominal Damages- Small sum of money awarded to P, in order to vindicate rights, make judgment available as a matter of record to prevent D from acquiring perspective rights, & carry costs of the action. Amount is unimportant.
            – Good for torts like Trespass to land.
– Compensatory Damages- Intended to represent the closest possible financial equivalent of the loss or harm suffered by the P, and to make P whole again. All CDs must be translated into money figure.
Punitive Damages- Additional sum over the compensation of the P. Awarded to punish the D, make an example of the D, and deter others from a similar tort.
-Problematic because civil law does not have “proof beyond a reasonable doubt,” and the D is paying a criminal penalty for breaking a civil standard.
*A judicial review of jury verdict amounts is limited and rare and only happens when the amount is so high/low that is “shocks the judicial conscience,” falls outside the range of fair and reasonable compensation, or results from passion or prejudice.
            -Remittitur- Judge decreases large payouts
            -Additur- Judge increases small payouts (Not allowed in fed. court)
A. Personal Injuries
 
Anderson v. Sears Roebuck & Co. (1974): Child was severely burned by a defected Sears heater that burned down house. D moved for remittitur because it believed the Jury was unreasonable in awarding $2 million dollar payout to child. On review, judge may not interfere with fact finding. Instead, the remittitur is held to the Maximum Recovery Rule: Maximum amount of money a jury could reasonably award. If over the limit, judge can adjust. To calculate MRR:
1.      Past Physical & Mental Pain: hospital trauma, surgeries, pain, emotional trauma (Affect of emotional trauma). ($600,000)
2.      Future Physical & Mental Pain: scalp will never sweat, breath, grow hair; immense pain for rest of life; 27 more recommended surgeries, risk of infection, irritation, further injuries, rejection and questions throughout life; life expectancy of only 25 more years. ($750,000)
3.      Future Medical Expenses: 27 more surgeries, constant team of docs will always be needed, private tutoring ($250,000)
4.      Loss of Earning Capacity: Never physically or emotionally be able to hold a job (Interest and Inflation taken into account) ($330,000)
5.      Permanent Disability and Disfigurement- dozens of factors (scarring, speech impediment, deformities, etc.) ($1.1 million)
-Total: $2,980,000 – Well within jury’s verdict; remittitur denied.
 
Richardson v. Chapman (1997): 2 P’s riding in car and rear-ended by a semi. Directed negligence verdict by judge. Defense challenged jury awards of $22, 358, 814 (P1) and $102, 215 (P2). On grounds of excessiveness and erroneous calculation of present value by P’s expert testifier.
-Excessiveness: Maximum Recovery Rule (in this case) 1. Past med. Care; 2. Future med. Care; 3. Future Loss earnings; 4. disability; 5. disfigurement; 6. Pain and Suffering.
 
-P1: All accurate except #3 Future Loss earnings. Court took into account age, education, personality, etc. and the expert economist still thought the payout was 1.5 million more than the expected upper bound.
-P2: All except #6 Pain and Suffering. $100,000 had been awarded because of nightmares and a scar on her forehead (b/c jury did not count it toward disfigurement). $50,000 more reasonable.
-Economist projections: Payout was 1.5 million more than the expert’s upper bound. There should be autonomy for jury to make payouts but to exceed the upper bound by this much is wrong. Decrease by 1 million.
 
-Demonstrative Evidence- Tangible proof: charts, photos, videos, models, etc.
-Special v. General Damages- Special(s): Subject to objective measurement (lost earnings, medical expenses, etc.) General: Real, yet hard to measure and fundamentally non-economic (pain & suffering, emotional distress, etc.)
-Economic v. Non-economic damages
Economic: Medical Expenses (Past exp. measured by bills and testimony. Future is measured by testimony, taking into account anticipated need of procedures (doctor) and expected cost (economist)), Lost Wages (If P is a homemaker, lost wages=cost of hiring housekeeper/babysitter), Loss or impairment of future earning capacity – Life expectancy tables are a guideline, but health, education, job, personality, etc. are also taken into account.
P(v)- lump sum (principle) + the interest/growth rate the principle would accumulate by the time of P(v).
Future Inflation- Should the court take into account the countervailing effect of inflation? (534)
-P’s compensation not subject to income tax; however punitive damages may be (For future value, tax rates, deductions, exemptions, cant be calculated.)
Non-economic: Physical pain & suffering, mental anguish, Loss of body function or appearance, emotional distress (Only can recover if: 1) The P was subjected to physical injury b/c of negligence and develops physical symptoms after and because of the emotional distress; 2) the emotional distress results from a direct invasion of the P’s rights (Int. torts)), Litigation induced stress (some courts), loss of enjoyment of life, Loss of Consortium (spouse formal companion: loss of sex, companionship, services, etc.)
*No reduction of life expectancy damages because of it could create duplicate damages.
 
Montgomery Ward & Co, Inc. v. Anderson (1998): D injured P. While at hospital, P convinced the hospital to take half of the bill away. When D found out, he moved for a motion in limine, asking the court to take the hospital bill out of evidence because he should only be liable for the cost the P suffered. D argued The Collateral Source Rule: The amount of damages to be paid by a D to a P will not be reduced by any gifts, insurance, grants, etc.
-Court ruled the forgiveness of debt by hospital is included in this rule. The victim was the one who struck the deal and she, rather than the tortfeasor should reap the benefits. Also, no evidence the D helped in reducing the hospital debt.
*Exceptions: Paid sick leave, Govt. programs, health insurance contracts
*Only 50% of states follow the CSR – Tort reform is changing the rule too.
-If services are rendered free (ex: by spouse), prevailing rule: D must pay reasonable value.
 
Zimmerman v. Ausland (1973): If a P is injured by D’s negligence, and the damages the D must pay could be reduced, if the P would consent to surgery, the P only must have the surgery if a RPP would.
-Factors considered: risk involved, cost, probability of success, and pain of surgery.
-In this case, the evidence was unclear whether the RPP would have had the surgery, so the D had to pay the full damages caused.
 
B. Physical Harm to Property
 
-When chattel is destroyed or converted by the D, the value to be compensated for is the chattel’s (market) value at the time of the tort.
-If damaged = difference in (market) value, before and after the tort (Cost of repair can also be used as evidence.
-Deprivation of use (stolen then recovered) = Rented (market) value of the use, in which the P was deprived.
*In determining the MV, what is the highest reasonable value the good could be sold for on the open market?
-MV determined by where (nearest market) the tort took place. If the nearest market standard is used, transportation costs are figured in if the good is for personal use. If the good were to be sold, the P would have had to travel to that market anyway to sell it.
-While the standard value is at the time of the tort, many courts recognize a subsequent increase in value of the good as part of damages (Especially in commodities or exchangeable goods).
-Rule of Highest Immediate Value: Some courts award the highest value the chattel reached after the wrong and before the trial.
-Highest Replacement Value Rule (New York Rule): D= The highest value between when the P learned about the wrong, and the reasonable amount of time (determined by court) to replace the good on the open market.
-Personal Value: For goods with little or insufficient market value. Determined by many factors: original cost, use made of it, condition at time of tort, etc.
 
PUNITIVE DAMAGES:
Cheatham v. Poole (2003): After P was awarded punitive damages, the court took 75% of the payout to put into a “violent crime victims compensation fund” as the state statute mandated. Court ruled this did not violate the Takings Clause because punitive damages are the result of common law (not federally mandated) and are intended to punish the D not compensate the P. Indiana in this case chose an intermediate path and is not required to give punies at all. The P’s interest only stretches as far as the state