Torts II- Kutner
No duty – Pure Economic Loss: There is no duty to exercise reasonable care to prevent someone from incurring purely economic loss. This does not include economic losses that occur as a result or consequence of injury or physical property damage. That is not characterized as pure economic loss.
Exceptions which create a Duty
(1). Professional-Client Relationship: There can be liability for pure economic loss when it is caused by a professional’s negligence.
(2). Negligent Misrepresentations: when business consultants, surveyors, examiners, etc. negligently misrepresent facts, then the person making the misrepresentation can be held liable for pure economic losses that result.
(3). Some courts have recognized a duty for pure economic loss when (a) the defendant knew of the risk or danger that could or did cause the economic loss and (b) the plaintiff was a foreseeable victim of the loss.
Emotional Harm – No Duty: Generally, there is no liability resulting from pure emotional harm and you could only be compensated if the emotional harm causes actual physical injury. However, in all instances, you can be compensated for mental or emotional harm if it occurs as a result of physical injury that is caused by the Defendant’s negligence. The majority of Courts require physical injury before emotional harm can be actionable.
Exceptions:
Today, a minority of Courts have held that there is a duty to protect against emotional harm (1) only when the risk of emotional harm is foreseeable, and (2) the harm is serious (disables her from carrying on some function of ordinary life). It is most prevalent in doctor-patient cases. If the doctor can foresee that a negligent diagnosis could cause the patient mental or emotional harm, then he owes a duty to protect her from that harm. Also, the doctor can have a duty to someone other than the patient if he could foresee that that his diagnosis could have a consequence on that person.
Rational for Exception: there are debilitating effects of mental distress on an individual’s capacity to carry on the functions of life. The distress or emotional harm causes the disability; therefore, it is just as deserving to be compensable as physical injury.
Loss of Consortium: actionable as emotional distress so long as it is foreseeable because it is serious harm. The impairment of one’s spouse’s mental health deprives the spouse of the companionship and moral support needed in a marriage as well as sex.
While most states still retains the physical injury requirement, there are 2 universal exceptions:
(1) Death Telegraph Rule: false telegraph or communication about the death of a loved one.
(2) Negligent mishandling or interference with dead bodies by morticians.
DAMAGES
3 Types of Damages
(1). Nominal Damages: only awarded when there is no compensatory damages (no actual harm or loss). Not applicable in negligence cases because if there is no actual harm or loss, there is no liability.
(2). Compensatory Damages: compensation for any actual harm or loss.
(3). Punitive Damages: Additional damages awarded above and beyond the compensatory damage amount in order to punish the defendant.
Damage Premises
(1). In the U.S., the damages are Monetary and awarded in a Lump Sum. The present value of the total damage is computed and plaintiff is awarded that amount. Most jurisdictions account for future inflation in some way.
(2). Once the lump sum is awarded, it cannot be modified or changed. Plaintiff cannot get money for unforeseen injuries or losses and Defendant can’t recover excessive damages paid due to faulty estimates.
(3). Monetary Damages are paid for non-economic losses.
Damage Elements
Non-economic Losses
(1). Physical Pain and Suffering (past, present and future)
(2). Mental Anguish (past, present and future)
(3). Emotional Distress (past, present and future)
(4). Disability and Disfigurement
(5). Reduced Life Expectancy
Economic Losses
(1). Medical Expenses
(2). Lost Earnings- income tax is not figured into plaintiff’s award because it is impossible to predict or determine what tax bracket she would have been in at various points in the future had she not been injured. It is too unpredictable.
(3). Maintenance Costs (non-medical expenses)
Damage Rules
Maximum Recovery Rule: juries are only permitted to award damages that are reasonable. If the judge finds that the jury’s award was grossly excessive or inadequate, it can award a new trial. Most judges make the new trial award conditional on the refusal of the plaintiff to accept a lesser amount that the judge feels is reasonable (remittitur). Also, when the verdict is inadequate, he may order the defendant to pay more (additur). However, many states have held that additur violates their state constitutions and the Supreme Court has held that it violates the 7th amendment (no additur in federal court).
Collateral Source Rule: When a plaintiff receives compensation from anyone other than the tortfeasor, that amount received is not taken into account in the damage award unless it is made on behalf of the tortfeasor (e.g. insurance company). Plaintiff’s claim is not what is
’s negligence causing the plaintiff’s injury, then the court will find that Plaintiff is contributorily negligent and is thus prevented from recovering any damages from the defendant, whom is also plaintiff’s partner in crime.
Example: Plaintiff is injured due to defendant’s negligent driving of a “get-away” car after both had just committed a burglary. Plaintiff is barred from recovering damages from defendant because the fast or negligent driving is a close connection to getting away after committing a burglary.
Courts differ on how “close” of a connection there needs to be but are usually lenient in preventing a criminal plaintiff from recovering from his criminal partner’s negligence.
Negligence Per Se: Plaintiffs can be contributorily negligent when they violate a statute, so long as there is a close connection between plaintiff’s violation of the statute and the injury suffered.
Example: Plaintiff contracted a STD from her boyfriend while having pre-marital sex, which violated a state fornication statute. She was found to be contributorily negligent and thus could not recover damages from the boyfriend.
Last Clear Chance (or Opportunity) Doctrine: At some point in time, prior to the accident, the plaintiff (who was negligent) may be in a position where she cannot avoid the accident even by exercising due care but the defendant still can. When the negligent defendant can avoid the injury by exercising due care (i.e. he has the “last clear chance” to avoid the injury if he exercises due care) then the negligent plaintiff will not be held to be contributorily negligent.
Defenses to negligence continued:
(2). Comparative Negligence: Doctrine that changes the amount of damage assessed when a plaintiff is also negligent by reducing the amount of damage by a percentage equal to the plaintiff’s percentage of fault. It changes the effect of contributory negligence. Under Comparative Negligence, contributory negligence no longer operates as a complete defense and plaintiff is not totally prevented from recovering damages sue to defendant’s negligence.
