Damages
· Needed for damages in negligence and SL suits
· All damages must be shown somehow in a monetary way
· Must be ONE LUMP SUM on one day from one lawsuit permitted
1. 3 Types of Damages
A. Nominal Damages
1. D has committed tort, but this has not really injured P
2. Small sum awarded to P in order to:
a. Vindicate rights
b. Prevent D from acquiring prescriptive rights
c. Carry a part of the costs of action
3. Unimportant in general (so long as the amount is small)
B. Compensatory Damages
1. Def:
a. Represent the closest possible financial equivalent of loss/harm suffered by P
b. (Make the P whole again–restore to position before tort occurred)
1. Kind of like equivalency damages (without the privity?)
C. Punitive Damages
1. Purpose
a. Punish defendant, not compensate P
b. Deter future misconduct by D and other
2. When available:
a. D’s conduct motivated by
1. Malice
2. Ill will OR
3. Reckless indifference to rights of others
3. Not awarded for ordinary negligence
4. Factors in determining amount as a matter of state law
a. Character of D’s conduct
b. Nature and extent of P’s harm
c. Wealth of D
1. Why?–to punish the corporation, it depends on how much they earn (must be a big enough figure to effectively get them to notice it)
2. Can bifurcate issues (divide into two)
5. Additional sum in addition to compensatory damages
6. Focuses on behavior and characteristics of D rather than P
7. Purpose:
a. To punish D
b. Make example of D
c. Deter D and others from that conduct
8.
Guideposts (see CONSTITUTIONAL ISSUES)
2. Personal Injuries
A. Maximum recovery rule
1. Seeks to award P with maximum amount of damages that can be awarded
2. Elements of damages used to determine this:
a. Past Physical and Mental Pain
b. Future Physical and Mental Pain
c. Future Medical Expenses
d. Loss of Earning Capacity
e. Permanent Disability and Disfigurement
B. Types of proof required for damages:
1. Demonstrative evidence
a. Tangible items such as charts, photographs, videos, models, and computer simulations that help the jury see the total extent of P’s injury
2. Expert testimony
a. May be used to project earnings (for loss of earning capacity), to detail P’s medical difficulties (psychological and physical) (physical/mental pain)
C. Categories of Damages
1. Special v. General Damages
a. Special (Economic damages)
1. Lost earnings
2. Medical/other expenses
b. General (Noneconomic damages)
1. Pain and suffering
2. Emotional distress
2. Economic v. Noneconomic
a. Econo
ket interest rate that would be used to discount damages is completely offset by inflation in computing lost future income
iii. Courts could not agree on one accepted federal method
1. Two stages to damage calculation–court found inflation should be included in both stages
a. Estimation of lost stream of income/cost of surgery in the future
b. Selection of appropriate discount rate
iv. Easiest: Total Offset Method
1. No inflation at all! Is this really fair?
8. P’s damage award not subject to federal income tax
i. Compensatory damages can be excluded from gross income
ii. Punitive damages MUST be included in gross income
iii. Most courts find it unfair to include in gross income, since future tax rates cannot be predicted
9. Some discrepancy on when interest starts to accrue on unpaid damages for a personal injury
i. Some start when the verdict is given by the court
ii. Some start from the date of the injury
b. Non-Economic Damages
1. Can be:
i. Physical pain and suffering
ii. Loss of function or appearance (Disability/Disfigurement)
