DAMAGES:
3 Types of basic damages:
1. Nominal– Damages that consist of a small amount of money awarded to the P to vindicate rights have been abridged; record to prevent D from acquiring prescriptive rights, and to help pay for the cost of litigating the case.
a. Awarded as a result of an intentional tort and NOT a negligence claim.
b. Rarely awarded, strong policies when authorized.
2. Compensatory – Damages that represent the closest possible financial equivalent to the loss or harm suffered by the P. They are damages awarded to compensate the victim for their injuries.
a. Awarded to make P whole as if the Tort had never occurred.
b. OFFERED TO COMPENSATE FOR THE HARM TRACED TO THE WRONG.
c. Ct. must review permanent damage to P, possibility of future deterioration, medical expenses, and the restrictions imposed on the P by the injuries.
* 2 Types of Compensatory Damages:*
1. Special Damages: These are ascertainable damages that must be proven with reasonable certainty and relevant to the tort injury. Quantified by expert testimony. These are:
a.Medical Expenses (past and future)
b. Lost wages (taxable)
c.Anything you can specify with some type of bill or receipt
d. “Out of Pocket” Expenses
2. General Damages: Always an arbitrary figure that P’s attorney will argue for. These are damages you can’t account for. There is no exact or specified method of calculating the damages.
a.Hedonic: Loss of enjoyment of life, Loss of consortium: Parents, spouse, or sibling can sue for the loss of not having the person around (sex, companionship, what they were to be in life).
b. Pain and Suffering: Any unpleasant emotional reactions caused by tort, like inconvenience, sense of loss, and ability to engage in pastimes; PAS T AND FUTURE.
c.Disability and Disfigurement
d. Loss of Enjoyment of life
e. Mental anguish or distress
f. Humiliation
g.Anything you can tract to the wrong can be compensated only limited by one’s imagination.
– Must look to see how the caps work for recovery in that state. These cap usually non-economic loss because the jury speculates on them. If cap present segregate all the pain and suffering into separate categories. If not, integrate them into one. Most caps limit P&S, if integrated, can’t get around cap. If segregated, argue that you can’t cap loss of enjoyment of life. Why do courts do this? Protect doctors and – premiu
– General damages are usually broken down at trial (by P) to how much the jury would be compensating the P per minute or hour to show the jurty that the entire amount they would be awarding is actually minimal compared to the injury suffered.
o Reduce economic dollars to Present day dollars
o Conditional Remitter: Must be accepted by P, if not, then NOVO.
3. Punitive –Awarded in order to punish the D, to make an example of D, and to deter D and others from engaging in similar tortuous conduct
a. Intent: Malice with conduct intended to cause injury
b. Public Policy: (PROMOTES TWIN GOALS OF DETERRING AND PUNISHING).
c. D may file remitter (motion seeking to reduce verdict amount) if jury unreasonable
d. MAX RECOVERY RULE: What is the max amount jury could have reasonably awarded (not the average). If Judge thinks less, than that’s it, if he thinks more, than left at what jury has decided. PROBLEM: Judge can overrule a jury
1. Conditional Remitture – remit the award, but P must agree, if doesn’t, new trial
– Factors to look at when reviewing a PD award are:
o Relationship b/t actual harm and PD
§ If death, amount doesn’t matter, can’t put price on human life, court won’t do this.
o Reprehensibility of D’s Conduct
§ Did they know about problem and ignore it?
o Compare the amount of Compensatory D’s versus PD’s
§ Usually the CT looks for a 3-1 or even 5-1 comparison. If more, could be deemed excessive.
§ ALSO need to look at D’s wealth and figure out how much money will actually punish them.
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
5. Permanent Disability and Disfigurement
What is a directed verdict and how does it come into play in a lawsuit?Directed Verdict – no facts to the other side of the case, therefo
mental suffering down into days, hours, or even minutes, set a value on each unit, and multiply it by the total number of the units that P&S has lasted and may be expected to last.
– Not permitted in some jurisdictions, as it tends to give the appearance of mathematical precision, while it is neither mathematical nor precise and ignores the fact that once the “threshold” of pain is crossed, the body tends to adjust to it and the suffering diminishes.
HODONIC DAMAGES: Deprived of something I enjoy, thus a loss…ex: Loss of ability to go Bowling
JUDICIAL CONTROL OF AMOUNTS RECOVERED
Trial judge (through a motion for a new trial) or an appellate panel (on appeal) can disturb the jury’s finding on the amount of the damages only if the verdict is so excessive or so inadequate as to demonstrate that the jury acted contrary to the law—in passion or prejudice rather than according to their instructions (tests “maximum amount which the jury could reasonably find”, “grossly” excessive or inadequate, “inordinate,” “shocking to the judicial conscience,” or “outrageous.”
Judicial review can:
1. Set aside verdict and grant a new trial on BOTH liability and damages
2. Allow liability side of verdict to stand and grant a new trial on damages alone
Remititur and Additur/Increscitur
1. Motion for a new trial is conditioned upon the refusal of the P to accept a lesser amount, is called a Remititur.
2. When the verdict is inadequate, the TJ, much less frequently, may grant the motion for a new trial conditioned on the D’s refusal to pay a larger sum set by the court, called an Additur or an Increscitur.
LEGISLATIVE CONTROL OF AMOUNTS RECOVERED
Tort reform, limiting the amount of damages recoverable.
Montgomery Ward & Co., Inc. V. Anderson
ISSUE is whether the forgiveness of a debt for medical services is a collateral source to be sheltered by the collateral source rule.
