Tort II Outline
I. Damages
A. Personal Injuries
1. Nominal Damages: (Least important) Damages given in recognition of the commission of a wrong but the wrong has resulted in little or no harm. This is a token slap on the wrist form of damages. We want to impose some damages but not much. (Fleet v. Greensbourgh)
2. Compensatory Damages: These are the guts of tort law. These compensate a victim and they are also meant to put the П in the position they were in before the tort. (Henke hates the phrase b/c if you lose an arm the money won’t give you the arm back) The better definition is that they are a substitutionary remedy designed to hopefully, in an imperfect way, put the П in a rightful way. Compensatory Damages are comprised of Special (economic loss) and General damages (non-economic loss)
I. Special Damages are objective loss; medical bills, lost wages, things that you can calculate objectively.
a. The maximum recovery rule: The jury takes each following form of damages and determines what the reasonable amount would be when you add up all the damages. This is what a judge looks at to determine when to remit.
Five Cardinal Elements of damages
1. Past Physical and Mental Pain
2. Future Physical and Mental pain
3. Future Medical Expenses
4. Loss of earning capacity and
5. Permanent disability and disfigurement
b. Economic Losses: These losses are considered if there are things that you can show a receipt for.
1. Medical Expenses
2. Lost wages
3. Loss or Impairment or Future Earning Capacity
II. General Damages are subjective loss; pain and suffering that cannot be easily calculated.
a. Increased risk exposure to a toxic substance. (Science and tort law)
GENERAL damages: Clear example of the imperfections and uncertainties of calculating these damages.
Cutting edge issues/Developing issues in tort damage
i. Physical manifestation/ Jurisdictional approach: some jurisdictions will require you to have some present physical manifestation of the harm.
ii. The “more probable than not” approach: you will need expert testimony that it is more likely than not the person will one day get the disease.
iii. Medical monitoring: Instead of actually giving the П anything. The Court will order the Δ to pay into a medical monitoring fund so that the plaintiff can get a regular check-up.
b. The two-disease hypothetical:
In some jurisdiction: All that is allowed in a settlement situation is a partial release, releasing them from anything having to do w/ the 1st disease. But leaving them open for the 2nd one. Ex. Is the asbestos and mesothelioma cases, a release would free you for the asbestos but would leave the option open for a further lawsuit in case mesothelioma would develop. General release jurisdiction: A general release from all claims present and future resulting from that tort.
c. Quality of life damages or Hedonic damages. (pain in the ass damages) Can the old folks that had to lug jars into their homes recover for the trouble they have through.
d. Recovering for Fear: It must be reasonable fear based on significant amount of exposure to the substance might allow some recovery.
e. Loss of Consortium: Loss of conjugal relations, society. Spouse recovers from the disability or death of a spouse.
3. Limitations on Damages for non-economic claims. (Note24 & 25)
Many statutes have been enacted in order to put a cap on the amount of damages awarded. In some states it depends on the cause of action, while in others all form of tort recovery is limited to the statutorily defined amount.
4. Damage Calculation: Present value: In personal injury actions, a plaintiff is awarded a lump sum to compensate for all future pecuniary losses, such as loss of future wages of future medical expenses.
a. Once the jury has made a decision this stands unless the judge feels the verdict is too excessive or grossly inadequate as to demonstrate that the jury acted contrary to the law-in passion or prejudice rather than according to their instructions.
b. If the judicial review decides the verdict was either grossly excessive or grossly inadequate, the judge must then decide whether to set aside the verdict and grant a new trial on both liability and damages, or to allow the liability portion of the verdict to stand and to grant a new trial on damages alone. Usually a whole new trial is ordered.
c. A partial trial, on damages only, is the appropriate remedy only if the judge is persuaded that whatever influenced the jury to act inappropriately in setting the amount of damages did not also taint the liability verdict.
d. Remittitur: In cases of excessive verdicts, the judge may grant a motion for a new trial that is conditioned upon the refusal of the plaintiff to accept a lesser amount.
Additur: When the verdict is inadequate, the trial judge, much less frequently, may grant a motion for a new trial conditioned on the Δ’s refusal to pay a larger sum set by the court.
I. Constitutionality of Remittitur’s and Additur’s
It has been generally held that remittitur does not violate the guaranty of jury trial contained in the federal and state constitutions. On the other hand the power of additur has been denied by the federal courts by a 5-4 decision of the Supreme Court. The decisions as to the constitutionality of additur under state constitutions are split. Some courts interpret their state constitutions to permit additur and others find that additur violates their state constitutions, as the Supreme Court had found that it violates the Seventh Amendment.
5. Collateral Source Rule:
The collateral source or collateral benefits rule is applied when the plaintiff receives compensation from any other source collateral to the tortfeasor. The tortfeasor was not entitled to receive credit from money that П received from a insurance, etc. IF the rule applies then the Δ does not get credit for any other money that is being received by the П. Those sources may include health or medical insurance, life insurance, disability insurance, employee benefits (sick leave, vacation pay), or governmental benefits. Three reasons why double recovery should be allowed if some insurance company makes their victim pay money they win in the lawsuit, the victim has to pay a contingency fee to the atty. Some states say you must have insurance and then you get penalty for having one
B. Physical Harm to Property
C. Punitive Damages
a. Punitive Damages: These punish the Δ for past misconduct and hopefully deter the Δ from going down that road again. They are the joker in the deck of cards since they are the wild cards. You don’t know how they are going to play out. The threat is stronger than the execution. (Note 19 on pg 536)
b. Outrageous misconduct: This is far and above beyond mere negligence.
§ Punitive damages may properly be imposed to further a State’s legitimate interest in punishing unlawful conduct and deterring its repetition.
§ Only when an award can fairly be categorized as “grossly excessive” in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.
§ Repetitive punitive damages: When you get caught for punitive damages from every wronged П. At what point do they violate the 14th, when do they become an unconstitutional violation of property. The third circuit says “it’s not our job to make a decision on this type of issue.” The problem that arises is in continuing to allow the people to get large sums of punitive from the first case then people that get sick later will not be able to recover in the future. What impact is your attack on the Δ today going to have on future П’s in the future?
§ BMW of North America, Inc. v. Gore
A person must receive adequate notice not only of the conduct that will subject him to punishment but also of the severity of that punishment. There are three guideposts to see if there was adequate notice.
1. The degree of reprehensibility of the nondisclosure;
2. The disparity between the harm or potential harm suffered by Dr. Gore and his punitive damages award
3. The difference between this remedy and the civil penalties authorized or imposed in comparable cases.
Three ways to misrepresentation
Negative misrepresentation
c. Punitive Damages are routinely reemitted
d. Factors that are considered when calculating punitive damages:
1. The existence and magnitude of the product danger to the public
2. The cost or feasibility of reducing the danger to an acceptable level.
3. The manufacturer’s awareness of the danger, the magnitude of the danger, and the availability of a feasible remedy.
4. The nature and duration of, and the reasons for, the manufacturer purposefully created the danger
5. The extent to which the manufacturer purposefully created the danger.
6. The extent to which the defendants are subject to federal safety regulation
7. The probability that compensatory damages might be awarded against Δs in other cases; and, finally,
8. The amount of time which has passed since the actions sought to be deterred.
e. A result Tort Reform made the standard of proof is clear and convincing evidence. Where as in most civil cases there must be a preponderance of the evidence. Henke: if you have the Sumner Simpson papers in you briefcase then you can probably prove clear and convincing.
f. Need to think about the vocabulary; outrageous conduct, reckless disregard for safety; this indicates the extremes that the conduct must be.
g. Should punitive damages be insurable? Yes and no, some jurisdictions allow it some don’t. The real issue becomes what type of deterrence is there for a company, if they can get insurance for outrageous conduct. Henke is torn on this.
h. Constitutional issue: Procedural Due Process (3 Steps): Set fourth three important steps that a Δ is entitled to in a punitive damages case.
1. The trial judge has to give an extremely detailed jury instruction.
2. The trial judge should make a very close examination of what happened in the jury process. The court should feel much freer to scrutinize what happen in the jury room.
3. The Supreme Court suggests that the trial court should make a de novo review.
II. Wrongful Death and Survival
A. Wrongful Death: Derivative lawsuit brought by survivors of the decedent who qualify as beneficiaries under the state statute of wrongful death.
B. Survivorship is an attempt to compensate the decedent him/herself for what they lost. It recognizes any conscious pain and suffering ex. Lost wages, personal clothing, property lost by the decedent him/ herself before dea
scretionary and that which are ministerial. In the federal cases, claims arising out of the combatant activities of the military, naval forces, or the coast guard, during time of war. Also any activity that is incident to military service. (Note C on pg 654)
b. Incident to military service.
Government K defense (the alter ego defense) Affirmative defense.
In conjunction w/ 2680 subparagraph J: A private military contractor may become the alter ego of the US gov’t and enjoy the same immunity that the gov’t enjoys under this section, if the gov’t contractor defense applies. There are three elements to this:
i. The gov’t provides the contractor w/ very exacting specifications leaving nothing to their discretion.
ii. The private contractor follows those specifications to the letter.
iii. Private contractor must share w/ the gov’t any independent knowledge/research that they have done that might suggest dangers. Ex. If Diamond shamrock is spraying the mousse w/ some chemical and the rats are becoming the shape of the moon. They must share this info. If they fail to share this then they loose the defense.
6. Public officers
I. Public officers are subject to personal liability for tortuous conduct committed in the course of their official duties.
II. Claims against them may be predicated on the common law of torts, special statues (a prime ex. being the Civil Rights Acts of 1871) or a provision of the US Constitution.
III. In each of these situations the public official may be shielded from liability if the official’s conduct comes w/in CL official immunity- a doctrine that is separate and apart from governmental immunity. Thus, even if governmental immunity has been abolished, official immunity still may protect a public official.
B. Statutes of Limitations and Repose
1. SOL: A period w/in which you must file a cause of action, once the cause of action accrues. This is not as easy as it seems b/c there are many instances where clients are not aware of this and they blow the SOL. This is a threshold defense b/c if you lose on the SOL then you will never get a chance to present your case, even if you have a financially good case.
2. Discovery Rule: Graves v. Church &Dwight Company
Allows the tolling of the SOL when a party is not aware of the tortuous conduct This is an equitable doctrine: Equity deems that which should be done, done. You are empowered, as a judge, to do what is fair. This is an idea of fairness and this is why the doctrine was created.
There are two situations where this rule might apply:
I. The person is unaware an injury has occurred or
II. You don’t know the origin of the injury; you can’t link them to anything negligent or a tortuous act. In cases of medical malpractice or toxic tort cases the discovery rule will toll the SOL until such time as the victim knew or significantly should have known that the condition from which they have suffered is of tortuous origin.
III. Heeding Presumption: (1965 the ALI passed section 402a comment J says): If a company puts a warning to a product they are entitled to the presumption that the П read the product and they will heed to it. Graves argues the inverse proposition of this comment: If there isn’t a warning then the П should get a presumption that if a warning were present they would have read it and heeded to it. In many jurisdictions: they do get this presumption. This is very important b/c if the jury finds that the П would not have heeded to the warning then the warning defect was not a proximate cause and the П gets nothing,.
IV. What amount of knowledge do they need before they should contact their attorney and file a suit?
V. This rule says nothing about the merit of the particular case, it merely decides whether П should get a day in court.
3. Personal Injury SOL: generally 2 or 3 years from the time legal cause of action has accrued.
4. There are different SOL’s for different cases. You may have a case in which you can pursue i
