Torts Outline

I. DAMAGES
A. Three KINDS of damages in Torts (p. 508)
1. Nominal Damages
a) Small sum to vindicate p
2. Compensatory Damages
a) Intended to approximate $ value of p’s loss or harm suffered.
3. Punitive Damages
a) Intended to PUNISH D.
B. Five ELEMENTS of Damages (Sears case, p. 508)
1. Past Physical and Mental Pain
2. Future Physical and Mental Pain
3. Future Medical Expenses
4. Loss of Earning Capacity
5. Permanent Disability and Disfigurement
a) Photographic evidence not considered “inflammatory”
(1) See Anderson v. Sears, p. 508. p child burned severely when negligently manufactured heater explodes in house. ED LA HOLDS: Introduction of photographs of burned child was not prejudicial b/c a portion of the claim was for disfigurement.
C. COLLATERAL SOURCE RULE
1. If p receives outside compensation D may still be liable for full damages.
a) Prevents D from “cashing in” on p’s insurance.
(1) See, Helfend v. S CA Rapid Transit, p. 519.
b) The p may generally recoup benefit conferred gratuitously.
(1) Note 2, p. 522. “When benefits are conferred upon the plaintiff gratuitously, as when plaintiff is nursed without charge by a spouse, the prevailing rule is that plaintiff is entitled to recover the reasonable value of the services from defendant….”
(2) NOTE: A MINORITY of Jx do not permit recovery unless p has PAID for the services.
2. SUBROGATION
a) Insurance Company may recover benefits paid out to p by suing D.
(1) Nevertheless, this does not justify reducing p’s award, or validate D’s arguments of double recovery. Because of our desire for deterrence, we will accept p’s double recovery as a “side-effect” of the system.
b) Some states extend SUBROGATION in non-insurance contexts.
(1) Some Jx include hospitals which provide health care to indigents, nursing services provided by family member or friends, or health care provided by gov’t to family member of gov’t employee.
3. A MINORITY of Jx allow D to offset damages by other payments to p.
4. INTEREST on other PAYMENTS as OFFSET TO DAMAGES
a) LOSS of USE DAMAGES for chattels may be offset
(1) Where a chattel is destroyed, and insurance is paid to p, then D may argue that any claim for LOSS of USE damages should be offset by any amount of interest earned by the P.
b) Pre-Judgment interest is generally NOT recoverable
(1) General RULE: Under common law p cannot recover pre-judgment interest for unliquidated damages.
(a) D’s argument is that since the amount of the judgment cannot be known in advance, having to pay the interest is unfair.
(b) PRACTICAL RESULT: D has no incentive to expedite adjudication of p’s claim.
(2) CA RULE: If p sues in PERSONAL INJURY (as opposed to trespass type action) and makes a pretrial settlement offer which is not accepted by D within 30 days; and if p obtains a damage judgment in an amount higher than the settlement offer, then D will have to pay interest on the entire award amount from the time of the settlement offer.
D. MITIGATING DAMAGES
1. p is REQUIRED to mitigate damages
a) No recovery allowed for reasonably avoidable injuries
(1) Zimmerman v. Ausland, p. 526. p is injured in car accident, but refuses to have reconstructive surgery to knee. At trial, D insists that it should only pay damages based on p’s condition if she DID have the surgery. OR S Ct. HOLDS: D may present evidence, if available that p intends to have surgery, but absent such evidence, p’s recovery is not predicated on forcing p to undergo unwanted surgery
(2) NOTE: this type of situation is much like INFORMED CONSENT, in that a jury will still have to decide that p REASONABLY elected to not have the operation (thus creating a need for an objective determination of p’s subjective state of mind).
b) Mitigating loss of profits
(1) Some states will allow D to insist that p must operate remaining equipment overtime if it will help compensate for loss. BUT D must agree to pay for any increased costs associated with such operation.
(2) EXAMPLE: p owns 5 trucks working a construction job. D negligently destroys 1. D can insist that p operate the remaining 4 overtime to cover for the lost truck, but will have to pay for any additional overtime or maintenance required for such operation.
E. Punitive Damages
1. Awarded for RETRIBUTION or DETERRENCE purposes
a) Generally p cannot recover puni’s for MERE NEGLIGENCE
(1) Generally, to recover puni’s, D must have acted INTENTIONALLY, or RECKLESSLY and WANTONLY.
2. Level of Proof
a) In many states PREPONDERANCE of EVIDENCE is enough.
b) CA RULE: p must prove puni’s by CLEAR and CONVINCING evidence
(1) That D INTENDED to cause the injury; OR
(2) That D engaged in FRAUD; OR
(3) That D engaged in DESPICABLE CONDUCT in CONSCIOUS and WILLFUL abrogation of p’s rights.
c) Jury does not HAVE TO award puni’s
(1) Even if D’s conduct could be sufficient to warrant puni’s, such damages are totally at the jury’s discretion, they are not a p’s right.
3. Calculating Puni’s
a) Jury examines character of D’s act;
b) Amount of harm to p; AND
c) Wealth of D.
(1) In CA, p must provide evidence of D’s wealth to the jury.
(2) Because wealth is taken into consideration, disproportionate awards between similar conduct by two D’s may be justified.
4. Legislatures are now trying to control puni’s
a) Puni’s may be a form of punishment without proof beyond a reasonable doubt
b) There must be some BASIS for jury to determine puni’s
(1) Pacific Mutual Life v. Haslip, p. 536. p’s purchased insurance from D through employer. But D’s agent pocketed the premiums. When p was injured she had no insurance. US S Ct. HOLDS: That as long as the punitive damages award to p was not determined through “unbridled jury discretion” the amount awarded must be upheld.
(2) BUT in a case related in class, the US S Ct. found that some puni’s may be EXCESSIVE, and thus violate the 14th amendment. (BMW failed to disclose that it had repainted new car. Jury decided that new paint devalued car by $4,000. And awarded plaintiff $4 million for punitive damages. Court reduced award to $2 million. S Ct. said that this was so excessive as to violate the constitution.)
(3) In reviewing amounts of punitive damages, the S Ct. looked at:
(a) Degree of reprehensibility of D’s conduct
(b) Disparity between harm or potential harm and amount of award.
(c) Difference between this remedy and what civil damages would be available for similar offenses.
5. Puni’s in PRODUCTS LIABILITY
a) Create special problems because of potential #’s of p’s
(1) If jury decides puni’s are warranted, who gets the award? Does each victim get to sue individually and demand puni’s?
(2) Should the court take into account that there have been puni’s awarded in previous cases (possibly creating a “race to the courthouse” by p’s).
(3) This issue becomes troublesome because puni’s may bankrupt D. When later p’s come to court, D has no resources to even pay compensatory damages.
(4) Best situation for D’s is where case can be removed to fed court, and all plaintiffs joined.
6. Insuring against puni’s
a) Some Jx allow insurance to cover puni’s
(1) Some courts feel that if D can find a company that is willing to provide the coverage and D is willing to pay the premiums, then courts should uphold that agreement.
b) Other Jx do not for policy reasons.
(1) In Jx where courts say no, this is justified because one cannot insure oneself against criminal acts or other punishment.
7. VICARIOUS LIABILITY for PUNITIVE DAMAGES
a) Employer Liability for Punitive Awards against Employees
(1) Restatement gives four factors to consider in deciding whether Employer should be liable for puni’s against their employees:
(a) Did employer authorize act and the manner in which it was done.
(b) Was the employee unfit for their job with employers knowledge or where employer was reckless in hiring person?
(c) Was wrongdoer part of management and acting in a managerial capacity?
(d) Did employer ratify or approve of what employee did.
(2) See 542 note 4 (Purvis v. Prattco) (employee of motel kicks out guests. Case turns on whether employee was a manager or mere underling).
II. WRONGFUL DEATH and SURVIVAL
A. Common Law
1. NO CoA for WRONGFUL DEATH
a) The death of another could not be claimed as a tort.
(1) If A attacks and kills B, and the in remorse A kills herself, B’s heirs cannot sue A’s estate.
b) Any CoA against D dies w/ D.
c) Any p’s CoA dies w/ p.
(1) These rules had much to do with the ways felonies operated in England:
(a) The D was executed and estate was confiscated by King.
(b) Thus there was nothing left to sue.
B. MODERN LAW
1. ALL Jx ALLOW WRONGFUL DEATH CoA
2. CoA is established by STATUTE
a) Statute specifies who has standing to sue
(1) Some statutes may be very narrow in scope.
(2) See note 8, p. 552 (stepchild denied recovery)
(a) NOTE: US S Ct. later found that statute’s which barred recovery by non-marital children VIOLATE the EQUAL PROTECTION CLAUSE of the 14th amendment.
C. MEASURING DAMAGES in WRONGFUL DEATH
1. Generally damages may be recovered for
a) Loss of support (family income)
b) Value of services decedent provided
c) Loss of society and companionship
d) Funeral expenses
2. Damages for WRONGFUL DEATH of CHILD
a) OLD RULE: Parents only recover “pecuniary losses”
(1) Medical expenses prior to child’s death
(2) Funeral expenses
(3) Monetary value of contributions and services parents might have expected to receive from child, less amount of costs to support the child.
(4) NOTE: such rules often led to recovery of NOTHING due to costs of support.
b) MODERN RULE expands categories
(1) Loss of society and companionship
(2) Some courts allow recovery for grief
(3) Still, overall, BROWNSTEIN notes there is a “grotesque” lack of uniformity in verdicts in such cases.
D. SURVIVAL
1. Where p survives some period before death, a separate action may be brought to recover:
a) Lost Wages
(1) Wages not earned between time of injury and decedent’s death.
b) Pain and Suffering
c) Damage to property
(1) Murphy v. Martin Oil, p. 557. p’s decedent is injured in a fire on D’s premises and dies nine days later. burned clothing. p sue for Wrongful Death AND Survival (2 CoA’s). IL S Ct. HOLDS “It is obvious that in order to have a full liability and a full recovery there must be an action allowed for damages up to the time of death, as well as thereafter.”
2. Distinguishing DAMAGES b/t WRONGFUL DEATH and SURVIVAL
a) Court’s are concerned about double recovery.
(1) For instance, courts are concerned that juries might confuse grief (damages for p’s emotional pain) and “pain and suffering” (damages for p’s DECEDENT’S emotional pain).
b) Also, different p’s may be established by enabling statutes.
(1) For example, Survival Statutes often attach the CoA to the decedent’s estate, while Wrongful Death Statutes will typically assign CoA to a relative.
(2) According to BROWNSTEIN: This split can be justified because a tort claim is viewed as a property right, and thus attaches to the decedent’s estate.
III. JOINT TORTFEASORS
A. GENERALLY
1. TERMS – DEFINITIONS
a) JOINT and SEVERAL LIABILITY
(1) Each D is liable for the ENTIRE amount of the P’s injury.
b) JOINDER
(1) A procedural device which says who you can sue in a given proceeding.
c) SATISFACTION
(1) p may have already be compensated in full because one of the D’s has paid the whole amount. When this occurs, the judgment is paid in full and is thus satisfied.
(2) SETTLEMENTS do NOT constitute SATISFACTION
d) RELEASE
(1) Voluntary extinguishment of p’s cause of action against a given D in exchange for settlement.
e) COVENANT not to SUE
(1) p RETAINS RIGHT to sue, but promises in contract to not exercise that right in exchange for settlement.
f) CONTRIBUTION
(1) Suit brought by D1 against other D’s to recover some portion of the amount of award to P paid by D1. (making other D’s pay their fair share).
B. LIABILITY and JOINDER of DEFENDANTS
1. ACTING in CONCERT
a) D’s acting in concert are J&S liable.
(1) Bierczysnki v. Rogers, p. 344. 2 D’s racing on highway. D1 hits and injures p. p sues both. D2 appeals b/c he did not collide with p. DE S Ct. HOLDS: 2 D’s acting in concert will be J&S liable even if only one is actual cause of p’s injuries.
b) D’s encouraging others to act MAY be J&S liable
(1) See note cases pp. 345-46.
C. SATISFACTION
1. Plaintiff may OBTAIN as many JUDGMENTS as there are D’s, BUT
2. Plaintiff is entitled to only ONE recovery
a) Once p is fully compensated by any one D, p cannot sue other D’s
b) If p only recovers partial compensation from D1, p can only recover difference from other D’s.
D. RELEASES and COVENANTS not to SUE
1. Once p RELEASES one D, all other D’s are also released.
a) But p may sue other D