Torts II- R. Henke Spring 2012
Damages
Nominal Damages: small sum of money. Don’t need to know much about. A tort can be committed which results in little or no harm. Nominal is the recognition of a tort, but there was little harm. Nominal damages are a slap on the wrist.
Compensatory Damages: Heart and soul. Substitution remedy to restore P to her rightful position. Money is a crude substitute for pain and suffering. If you loose an arm, cant get another arm back. Money tries to replace that.
Special or Economic loses
Classic special- medical expenses, loss of wages. Sometimes referred to economic damages because they can be reduced to a sum certain before trail. They are objective, can be calculated
General or Non-Economic Damages- pain and suffering, emotional distress. Quality of life damages.
Per-diem Argument- P lawyer can sometimes make this. In this argument, P lawyer breaks down value of the pain and suffering into daily units. NJ does not allow this. This is an attempt to give the jury some guidance on an appropriate number for pain and suffering. Some jurisdictions allow it, but not an overwhelming number.
Tort reform- one of most pervasive is putting caps on tort reform.
(1) All about a state legislature passing a statute (passing a cap)
(2) Psychological. Have a lot of people who are not sympathetic to tort seekers.
Tort reform shrinks job market, has an effect on the entire profession.
Punitive Damages: punishment and deterrence. Has nothing to do with compensation of the individual, just to punish the tortfeaser so they will never do it again.
Anderson v. Sears
Young girl was burned. Most likely case was only tried because someone was unreasonable. Usually cases are settled because P makes outrageous demand, or P makes reasonable demand, and D makes unreasonable response. This case had a $2mil verdict.
This case discussed doctrine of remittitur- if verdict is so high it is said to ‘shock the judicial conscious’, the D can make a motion to trail judge to reduce the jury’s verdict.
This ct applies maximum recovery rule. Judge takes each measure of damages, past pain and suffering, future p/s, past/future medical bills, disfigurement. Judge decides, based on all these factors, said P could recover around $2.9mil, and judgment was for $2mil, so since the $2mil was below was the max was, no remittitur. If the verdict was above the maximum recovery rule, then they could grant the remititur.
D say pictorial evidence should not have been used, and that the girl should not have been present in the court room.
Richardson v. Chapman
P gets directed verdict on rear end. Only a damages trial. The paraplegic case comes in at $22M, and the other laceration case came in at $100K.
P’s expert was an economist and gives estimates of future medical expenses. He gives an upper bound and lower bound, and jury gave medical exp about $1.5M more than what the upper bound amount was. Trial judge was troubled by this and reduced the amount of $11M down $1M.
Also cuts other P $100K down to $50K.
A motion for remittitur can threaten the delicate balance of the role of the jury and the role of the judge.
Note 3 pg 546, we’ll refer back to State farm case
(General Damages) Note 8 pg 547- What if P sustains minor injury, but fears worse injury. 3 things. You can recover for increased risk if you have expert testimony that says it is statistically probably that you will get the condition. 3 things to look for: increased risk, fear, medical monitoring. You can recover for reasonable fear, ex- asbestos cases fearing that you will get it. Medical monitoring- there can be a medical monitoring fund were people can withdrawal so they can get yearly physicals.
Note 14- Interest. Some jurisdictions allow you to get interest on the claim from the time the action was filed. If in state where pre judgment interest is ticking, they’ll talk to you earlier and may try to settle earlier.
Note 23. Remittitur can happen frequently. Additur (adding money), doesn’t usually happen. Power of additur has been denied to the federal courts.
Const issues with tort reform- right to jury trial, due process, separation of powers, equal protection (disproportionately impacts poor people).
Collateral Source Rule- a tortfeaser is not entitled to any credit or to any setoff from moneys that the victim has received from collateral sources during the pendency of the litigation. If its in effect, the tortfeaser does not get any credit.
Exam- you may want to mention a tort reform issue in exam answer.
Note 4- if health insurance company is helping you out with med bills, you have to pay them back and are entitled to part of tort award. Usually insurance cases.
Montgomery Ward v. Anderson
P gets discount on medical bills. Even though there was a discount, she is entitled to recover the full amount.
Loss of Consortium
Loss of conjugal relations, companionship, household services (spousal relationships)
Contingency fee system- 30-40%. Sometimes can be disproportionate based on amount of money earned based on time put in. Allows injured who don’t have financial strength to obtain good representation.
Zimmerman Case- P had a knee injury, P claims permanent loss, and there is a permanent disability for her knee. D responds and says you have surgery and can be restored to condition you were before this. What duty does the victim have to mitigate or lesson D’s negligence? Victim doesn’t have a duty to get surgery.
Duty to Mitigate
Avoidable consequences- if reasonable person in P’s position would undergo a corrective surgery to avoid some or all of the consequences of tortfeaser’s negligence, then they should do so.
It is the D’s burden of proof to prove that the reasonable person in P’s shoes would undergo such treatment.
What factors to you take into account to determine reasonableness
Risks involved
Probability to success
How much pain
If D is successful in arguing avoidable consequences, what does that mean for P’s case?
If D argues you should have and P doesn’t, if could significantly reduce the amount of damages. Now its only worth the amount of pain and suffering and medical bills involved in the initial harm.
The value of permanency is gone.
Is there some kind of corrective measure that would reduce the permanency of the injury.
Comparative fault (different from contributory neg) is pre accidence, avoidable consequence is post-accident.
What if P has a religious belief and doenst want to undergo surgery- There’s a jurisdictional split here, some court do, some don’t. If court is willing to do it, what would reasonable person with that religion do.
Exam- nothing on property damage
Punitive damages in two parts
Common law considerations
Punishment and deterrence
Has nothing to so with the rightful position of the P, restoring them to rightful position (making them whole).
Specific
Deters the D specifically
General
Deters the industry (other would be actors who would do the same thing)
Outrageous misconduct, willful and wanton disregard of safety or well being
Mere negligence isn’t enough, needs to be outrageous. It would be obvious
Statistically small number of cases
When a punitive case hit, it generates a lot of noise, but very rare.
Generally need compensatory damages first as a predicate to punitive damages
Wealth of D generally considered
Evidence is introduced on the general wealth of the D (to show financially how the company would be punished)
Never considered for compensatory damages trial.
Clear and convincing evidence
State fund: Cheatam:
Husband has sexual pics of wife, she brings claim of emotional distress and invasion of privacy
Shes gets $100K for compensatory, $100K for punitive
Indiana creates a fund which some percentage that the P’s punitive damages go, 75% goes into fund for victims of violent crime.
P argues these state taking of funds constitute an unconstitutional taking of her property. D responds by saying, punitive damage award is not personal to the individual compensatory is personal to the person. Therefore the recipient to a punitive damage award
ous, then ratio should be 1:1.
Court says you can have a ratio of up to 9:1 (reasonable compensatory), if comp is minimal but outrageous conduct, then double digit, if already broken bank on compensatory, then only ratio of 1:1.
Number of states with tort reform have passed ratios that are capped.
Williams Case
Lung cancer smoker, died of lung cancer. Verdict of $800K in compensatory, and $79.5M in punitive. Comp was cut down to $500K because of a state cap. It was a fraud case. They said they can consider it for reprehensibility, but not for punishment. Williams case in 2007 was sent back to Oregon because it was error to incorporate the language into their charge.
Exxon case- if you already received a lot of compensatory damages, then punitive damages should only be about 1:1. Decided 2008. Original punitive damages award was $9billions, appeals limited it to $2billion. Ship captain was very drunk, they estimated at the time of the spill his alc content must have been about .24.
Maritime law, which is federal in nature. There is no state law. Ct posture is of state supreme court and congressional statutes since maritime law. Decision is not binding on state courts.
Justice Suttor thinks primary flaw of punitive damages is the unpredictability of them. He says if you already have an enormous compensatory damages award, then punitive damages should be 1:1 because it satisfies due process.
At least as federal maritime punitive damages is awarded, a limit of 1:1 shall be set of punitive v. compensatory.
By Suttor saying he disagreed with the opinion, he was able to get his 5 votes.
Steven says if a cap is so important, let congress pass it. Ginsberg says if any maritime ratio exceeds 1:1 should that be every congressional limit. She asks what are they going to apply next time.
Williams case come back to SC in 2009, basically withdraw this case after the Exxon decision. There is no decision here.
BP Case- they will applying state tort law in limiting damages.
Wrongful Death & Survivorship
Wrongful death of child
Wrongful death claim- derivative claim (derivative of the death of a loved one), it’s a claim brought under a wrongful death statute by those people who qualify as beneficiaries under the statute. It is meant to compensate these beneficiaries for the pecuniary loss that they have suffered as a result of the death of a loved one.
Moragne case- at the time, there was no recovery for the wrongful death in a Maritime case. However, this was overturned.
Selders Case- 3 children who are killed. Parents are bringing wrongful death claim. It was difficult to evaluate the death of a child due to the value the parents would expect to receive. When parent seeks pecuniary loss, here they are a financial liability since times are different. To get around this they should be awarded loss and society, comfort, and companionship instead. Phrase of pecuniary loss should be not be limited. If a parent however, pecuniary is appropriate since providing income, ect.
Very few wrongful death cases that says a child is a ‘prodigy’, and they had the potential for great earning capacity can recover pecuniary. This is very speculative, therefore most jurisdictions give pecuniary loss for lost of companionship, society, comfort ect, since pecuniary is difficult to prove for children.
