Torts II Outline Professor Sutton
I. Damages – sum of money the law imposes for a breach of some duty or a violation of some right.
3 types of Damages
1. Nominal Damages – Show that you have won the case. Under certain statutes you can get your costs, aka filing fees; attorney’s fees. You may also take a case that is only nominal damages to get your name out in the public for future clients, publicity. Makes judgment available as a matter of record.
a. If you get nominal damages and the other party violates the judgment, you may get punitive damages if certain rights have been established in court.
2. Compensatory Damages – Intended to represent the closest possible monetary equivalent of loss/harm suffered by the Plaintiff, to make Plaintiff whole again, to restore the Plaintiff to the position the Plaintiff was in before the tort occurred. “Compensate the Plaintiff”.
2 types:
a. Economic – those awarded as compensation for monetary losses and expenses that plaintiff has incurred or is likely to incur in the future. (Always, past, present and future) “Out of Pocket Expenses”
i. Medical Expenses – Medical expenses proximately caused by the negligence of the D. Can be past, present and future.
a. To determine medical expenses look to the insurance company, they will have the most accurate records.
b. Medical expenses must be reasonable, necessary and proximately caused by the incident. (90% of time it is)
2 that might be disputed:
i. Alternative medicine is usually challenged as not reasonable and necessary. Will not pay because it is an unlicensed doctor and it will not cure, just alleviate the pain.
ii. Pre-existing conditions – if the P had prior injuries to the same spot in their body that was injured in the most recent accident, P can get damages if they prove that they were reasonable, necessary and proximately caused.
c. As long as the medical expenses are not in dispute they are stipulated by both parties as to past/present medical expenses up to a certain date.
d. How to prove future medical expenses: Bring in expert witness. Probably need more than 1. Need a doctor or set of doctors to testify what your future condition or future condition will be. Then you need to bring in an actuary to testify as to the cost of those future costs associated with the future medical treatments. This is usually a battle in the discovery phase of the trial.
ii. Lost Wages – money that couldn’t earn, didn’t earn, and can’t earn in the future.
a. Determine amount of wage loses: look at taxes, accountant, work stubs, check with the county.
b. Self-Employed: look to book keeper. You will need an expert accountant to figure out the true income of a self-employed person because of all of the deductions that you take. They put together the true income.
c. How do you lessen the income: Look to a divorce and speak to the “friend of the court” to find their bull shit income.
d. Plaintiff has the burden to prove damages by a preponderance of the evidence.
e. Future Wage losses: bring in an expert, Doctors to testify how long they will be out and will not be able to do their job or they will be diminished in their job, vocational expert to establish because of condition they cannot do what they wanted to do.
i. Must establish how many years the P would have worked. There is an index that people normally use. Parties usually agree on number of years with index.
1. If don’t use index, then you can look at P’s business planner and friends and family, employers, insurance agent to establish when the P will retire.
ii. How do you establish future wage earnings for a child?
1. Government publication that establish the average earnings. They try to prove that the child is not average. Must prove with some degree of certainty. Experts must establish age education, prior work history, present work history, amount of disability. Some jurisdictions let you raise for inflation.
iii. Replacement services – P has to hire someone to replace the services that the P provides to me or my family.
– Expert testify as to the future expenses as to the services that you will need because of the injuries.
Present Value (future payments) -Only calculate with future economic damages – ***Discount future economic***
– If you have a client that lives longer than the average person, you will want to bring that in to increase the award. You will try to take out that they have history of early death.
– How does jury award the P so that they have the same stream of payments until their death?
-Find the discount factor (interest rate) to determine how much money you will need annually on the judgment amount.
– If you are plaintiff attorney you want the lowest interest rate possible so that you get the most amount of money now. (Plaintiff wants a higher commission)
– What amount of money now times the interest rate equals the judgment amount.
– Defense lawyer’s wants a higher discount rate because the market will be good and the market will make up for it. To reduce the prevent value number.
b. Non-Economic:
a. Physical Pain and Suffering – Want the jury to understand the pain and suffering that the P encountered. You start at the scene of the accident with the P.
i. Defendant is usually the best witness. Look to the police report to find out what the D may have seen and said. You can also try to interview the witness at the scene, paramedics and police.
ii. Must be some moment of consciousness to obtain pain and suffering damages, even if you are in and out of consciousness. If you were killed instantaneously you cannot get P & S. This is so that pain can be measured.
iii. Can get past, present and future
1. Past and present– talk about ambulance ride (there are records from the driver), emergency waiting room, when you are in the hospital (talk to nurse about the chart with pain levels), talk to family members about your pain, physical therapists. Must establish at every level that you describe and bring in all the people that can testify as to the pain levels.
2. Future – Future surgeries. Bring in your doctor to discuss the pain level of the future surgeries.
iv. Not only do you want
Maximum recovery rule:
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
iii. Judge must rely on the testimony that was admitted at the trial level.
iv. Judge must determine what the maximum amount the jury could have reasonably awarded.
Shocks the judicial conscious test- Did the jury award too much money on the award. (Majority)
– Court may look at the fact that the jury was too prejudice, or emotional
– When jury awards more than what both experts stated the amount should be.
– Has the jury gone beyond what they should be allowed to award.
Tort Reform – Most states are asking for cap on non-economic damages.
– This is so that legislatures can attempt to reduce insurance.
* If you are in an accident and suffer major trauma, the majority of jurisdictions do not allow additional damages for a shortened life expectancy.
Collateral Source Rule – (majority) (ON FINAL) – A trial court must exclude evidence of payments received by an injured party from source collateral to the wrong doer such as private heath and medical insurance, life insurance, disability insurance, employee benefits, or governmental benefits.
– D cannot benefit or offset their potential judgment amount due to a benefit that the P has; either insurance or settlement.
– Bars any evidence that would prove Plaintiff can potentially be compensated from another source.
– The rule does not apply to payments made by the D or joint tortfeasor who mistakenly thinks he is liable, or by an insurance company who makes payments on behalf of tortfeasor. These can be used to mitigate.
– Subrogation Clause – Insurance Company has this clause in your policy which states that if you sue a person for liability from an accident and the insurance company paid out benefits on your behalf, then they have a lien on any future settlement or award so that you can pay back your policy, i.e., what they paid in medical expenses.
– Majority of time the insurance company gets a large portion of the settled funds.- Most Plaintiff lawyers will try to negotiate the subrogation lien.
Exceptions to the Collateral Source Rule:
– All have to do with the plaintiff lying on the stand. The defendant can use these collateral source payments to impeach the Plaintiff and make him look bad.
– If any of these happen you go to the judge and state you want to impeach evidence as to collateral payments.
1. Plaintiff testifies that he had to return to work prematurely, because he needed the money or couldn’t get medical treatment because he couldn’t afford it.
a. Usually the P has Health or Disability insurance. Introduce that evidence.
