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John Marshall Law School, Chicago
Bernabe, Alberto



Fall 2015


Determining damages is an important consideration for all attorneys involved in civil litigation (attorneys are concerned at least with the magnitude of what a damage award could be as they are with proving the liability or non-liability of a party (proof of damage – essential part of P’s cause of action)
Personal injuries:

Anderson v. Sears, Roebuck & Co

(Child burned in fire from faulty manufacturing)
Maximum recovery rule – the legal standard for gauging a jury verdict (exceed amount jury could reasonably find if so, can reduce under law)
Remittitur purposes (motion for new trial)
Photographs of P (prejudice but allowed)
Presence of child in the court room
Evidence (various types used by P)

Past physical and mental pain, future medical expenses, future physical and mental pain, loss of earning capacity, permanent disability

Richardson v. Chapman

(P was in car stopped at stoplight and hit from behind)
Elements: past medical care/expenses, future medical care, past and future loss earnings, disability, disfigurement, and pain and suffering
Determination of damages is a question reserved for the jury; a court will generally not disturb jury verdict unless:

Judgment is excessive (outside fair and reasonable compensation)
Judgment is result of passion and prejudice
Judgment is so large it shocks judicial conscience

Proof of damages: is an essential part of P’s cause of action for intentional conduct; negligent conduct, and conduct deemed bad as a matter of public policy (i.e. strict liability)
The purpose and functions of tort law are achieved by awarding damages

Corrective justice: restoring injured parties back to their original condition by compensating them for their injuries
Deterrence: threatening D’s with liability for the costs resulting from their tortious conduct

The types of evidence available in determining damages

Demonstrative: tangible evidence – photographs, charts, films, lab reports

I.e. Simpson trial

Witness testimony: evidence presented by eye witnesses (i.e. usually oral testimony presented to the court to prove P’s assertions/case or expert witnesses)

Witness testimony can be based upon personal knowledge of witnesses, or on treatises governing the subject matter
Expert witnesses are utilized when the subject matter at issue is beyond the scope of comprehension of lay jurors

I.e. projected earnings, psychological injuries

Standard of proof required for prevailing in civil law suits

Preponderance of the evidence standard – the amount of evidence necessary for P to win in a civil case

In a civil trial, the standard has been that P must prove by a preponderance of the evidence, that he/she has suffered or in the future, will suffer the losses for which she claims damages
It is that degree of proof that is more probable than not
Civil standard – 51%

Clear and convincing evidence – evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact, a firm conviction as to each essential element of the claim and a high probability as to the correctness

“High probability”
Civil standard – 75%

Beyond a reasonable doubt

Criminal standard – 95%

Types of remedies available to P’s in civil lawsuits

Equitable relief (i.e. non-monetary)

Injunctions/Restraining orders

Forcing or stopping someone from doing something
CompuServe case

Declaratory judgments (similar to relief in equity – non monetary relief)

Clearly a rule
I.e. can help prevent against adverse possession


Nominal damages: small sums of money awarded to P in order to vindicate rights

I.e. to make judgment a part of the record in order to prevent D from continuing the activity
Herrin v. Sutherland – shooting over house at ducks

Compensatory damages: closest financial equivalent of the loss of harm suffered by P


To make P whole again
To restore P to the position he/she was in before the tort occurred

Punitive damages: an additional sum, over and above compensation for P’s injuries, that is awarded as punishment and deterrence

Only need clear and convincing evidence standard

Four basic principles of compensation

The purpose of compensatory damages is to restore P to pre-injury status as far as possible (or as far as monetary relief can provide)
Money is the only tool available to the jury for making P whole again is money
Damage awards are all-inclusive – all damages, whether past, present or future, must be included in the “one lump sum” award, on the particular day the verdict is returned (in the single lawsuit that P is permitted to bring)
Judicial review of jury verdicts in civil trials is limited – most jurisdictions allow new trials only if the award is so high or low that it shocks the conscience

Compensatory damage awards; general considerations

General rule – successful P is entitled to recover damages to compensate her for the losses proximately resulting from D’s tortious acts or omissions
Injury to property cases – damages are measured by the loss in value of the property or the costs to repair (or replace) (trespass to chattels) or the measure of damages will be equal to the value of the property at the

unt of damages only if the verdict is so excessive or so inadequate as to demonstrate the jury acted contrary to the law

I.e. passion/prejudice rather than according to instructions
The court can set aside the verdict and grant a new trial on both liability and damages (or can allow liability portion to stand and order new on damages)

Remittitur/additur – if judge decides to grant new trial on damages alone, may condition the granting of a new trial in following manner; orders issued by court to adjust a value:

Remittitur: in cases of excessive verdicts, the court may grant a motion for a new trial which is conditioned upon P’s refusal to accept a lesser amount
Additur: in cases where the verdict is inadequate or excessively low, the court may grant a motion for a new trial conditioned on D’s refusal to pay a larger sum set by court (less frequent)

Legislative control of jury awards for compensatory damages

Tort reform measures (statutory limitations):

Caps on damage awards – limiting amounts of recovery in medical malpractice cases, non-economic damages, claims against the government

Are on the legislature for jury awards (common law)

Can be a statute to limit
Majority of jurisdiction have maximum recovery

Increasing the standard of proof – some jurisdictions have increased standard of proof needed for damages

I.e. preponderance of evidence to clear and convincing evidence in punitive damage cases

Modification of collateral source rule – some jurisdictions have modified the rule to allow for admission into evidence of payments made by sources other than P

Physical harm to property

If chattel is destroyed or converted by D for his use, measure of damages is its entire value at time and place of tort

If damaged – measured by difference in value before and after injury
If deprivation – measured by value of the use which P has been deprived

Value = standard of financial equivalent of property
Market value = what the property could have been sold for on open market (determined at same time and place)
If no market value – taken at value to owner (personal value)