Dotson – Torts II – M2018
Damages
Types of monetary damages
Nominal damages
Small award to plaintiff
Vindication of win
Never awarded in negligence suits
If nominal damages are awarded, there was no actual harm
Punitive damages
Deterrence and Retribution
Never compensatory
Focused on the defendant who acted with malice
Guideposts for constitutionality of awarding punitive damages:
Reprehensibility of defendants conduct
Disparity between punitive and compensatory damages
Double digit ratio rarely acceptable
Reprehensibility of conduct may increase to double digits
Compare with civil/criminal fines and penalties
Bifurcation of trial into two phases
1st phase – jury decides whether evidence supports punitive damage award
Standard for punitive damages
Common law malice – Intending injury or acting with reckless disregard as to whether an injury would occur
2nd phase – Evidence of wealth of defendant admitted for award determination
Compensatory damages
Financial equivalent of the loss of harm suffered by plaintiff
Restore plaintiff to pre-injury status; make the plaintiff whole
Translate all losses to dollar amount (lump sum award to plaintiff)
Limited judicial review of jury award
Elements:
Past physical and mental pain
Future physical and mental pain
Pain and suffering – Includes loss of enjoyment of life activities
Future medical expenses
Loss of earning capacity or last wages (can be speculative, based on life expectancy)
Permanent disability and disfigurement
Categories:
Special damages (Economic)
Non-speculative and very specific
Medical expenses
Lost wages and impaired earning capacity
General damages (Non-economic)
Speculative; hard to quantify
Pain and suffering
Per Diem Argument – Overly prejudicial
Hedonic (Loss of enjoyment of life and to pursue talents, interests, etc)
Integrated – Combines hedonic damages with physical or visceral pain into one damage category
Segregated – Each item of suffering is instructed individually
Disability
Loss of relationship
Remittitur
Maximum recovery rule
Directs trial judge on appeal to determine if the jury verdict award exceeds the maximum amount which they c
tatute
Survival Statutes
Estate continues decedent’s action against tortfeasor for loss incurred during decedent’s lifetime
Vindicates rights of deceased
Typical Recovery
Pain and Suffering, related damages suffered up to the time of death
Funeral expenses, if paid by estate
Statute of Limitations and Repose
Pro-Defense
Limits stale claims
Protects from the potential of long-term liability
The running of either will defeat plaintiffs claim
Statute of Limitations
Prescribes the time period in which a cause of action must be filed
Varies; based on state law, nature of underlying claim and who defendant is (Govt)
Typically starts running at time of harm
Discovery Rule – Starts running when the plaintiff or a reasonable person discovers or has knowledge of the harm
Must discover injury, operative cause and causative relationship
Tolling (Stops or delays running of SOL)
Incapacity, minor to age of majority
