Property II Outline

Torts II Outline
Hillary 08
Prof. Palmer

I. Damages
A. Damages are necessary for a negligence cause of action.
B. No damages no negligence
C. Can’t just recover nominal damages.
D. Statutes of limitations does not start for negligence until there are damages.
1. Ex. child abuse cases.
a) You can sue when you are an adult for negligence.
i. Ex. suing a supervisor or protector (can preserve the cause of action)
ii. Suing under an intentional tort have to be immediately after the abuse. There is no insurance coverage for intentional child abuse but there is insurance for negligent child abuse.
E. Measure by P’s loss not by the D’s gains.
2. Restitution: D’s gain
F. Damages in civil cases are enforced in rem.
1. No personal order of the judge saying you must pay this amount of money.
a) Jury verdict for 100K and D says to judge that he will not pay it. It is not contempt of the court b/c there is no order to the D to pay.
2. Civil judgment allows the P to collect the judgment.
a) Allows P to garnish D’s wages, take D’s bank acct. or property.
b) But P can’t pull the D back to court and say you were ordered to pay & you didn’t. Effect of this is people only sue people with money.
G. 3 Categories of Damages.
1. Nominal Damages
a) It is a small trivial amount which acknowledges that the P has a good cause of action but not awarded a lot of money.
b) Negligence requires damages you cannot receive nominally.
2. Compensatory Damages
a) Compensates P for their loss.
b) Compensatory damages are not taxable. Majority of courts don’t tell the jury that compensatory damages are not taxable.

3. Punitive Damages
a) This does not compensate P.
b) It is to punish the D, similar to criminal law, fines, since you did this is your penalty.
c) Punitive damages are taxable.

H. 2 types of Compensatory Damages
1. Special Damages (Specials)
a) It is a specific, identifiable, usually economic damage’s which must be alleged in the complaint and proven w/ evidence.
b) This is the sort of damages that the jury are not allowed to speculate.
c) Ex. medical bills, loss of wages, out of pocket loss.
d) No cap on special damages.
2. General Damages
a) These are damages that common sense tell you are there as a result of the injury. Courts will allow jury to find for general damages based on their common sense.
b) Pain and Suffering (main category)
iii. Always in negligence general damages.
iv. Willing to let jury find for pain suffering.
v. Prof. referred to per-diem argument It (pg.537(17))
a. Framework on how to calculate pain and suffering.
b. Not allowed in some jurisdiction.
c) There are caps on general damages but not on specials.
I. How Damages are awarded.
1. Single Recovery Rule
a) There is only one recovery.
b) One check for all the harm to the P in the past and the future.
i. Medicals and wages will be what was incurred in the past and the future.
J. Interest on Damages
1. If you have to pay 5K in the future it won’t be 5K today, that is a lesser sum b/c it is the amount of money that I held to give you today which you can invest in a safe investment which would come out to be 5K in the future and
2. For medical bills incurred from the past, 5K I paid 3 years ago is not 5K today because I paid it 3 years ago and I should have been able to keep that money in the bank so I want 5K plus interest on the 5K for 3 years.
3. Past payments from the past will be lower for the future.
4. Pain and suffering not reduced for the past or the future.
5. When does interest start.
a) Injuryàtime of complaintàtime of judgment
b) Majority: Interest starts at the latest when the court adjudicated. At the time of judgment.
c) Some jurisdiction allow interest to begin at the time of the complaint.
d) In tort law interest does not start at the time of injury.
e) Special issue is the interest for medical bills.
f) How much interest?
i. Michigan bases it on 3 month treasury bill.
K. Elements for Damages
1. Future Medical Expenses
a) To calculate a doctor and an economist need to be brought in as evidence.
b) Interest rate used.
i. Rate of interest which can be invested at that period of time with inflation. Economist will be brought in to figure it out.
2. Loss of Earning Capacity
a) How much P would make in the future.
b) How Prof. Palmer did it in a case he had.
i. Get letter from a doctor for limitations of the P then sent the P to a vocational specialist who evaluated the P and find out what the P would be good at as a job. Calculate what he would earn from the job the specia