Torts II Outline

Prof. Richard Henke

Torts II, Spring 2011

I. DAMAGES

· There are three main types of damages, namely:

1. Nominal Damages: These are very small amounts that are awarded mainly for the sake of showing liability and can help P recover his attorney fees.

2. Compensatory Damages: These are intended to represent the closest possible financial equivalent of the loss suffered by P.

a. Substitutionary remedy to restore P to her rightful position: While you can’t really make P whole in the very sense of the word, compensatory damages act as a “substitutionary remedy” to restore P to his rightful position.

b. Special Economic Damages: These are objective losses for medical bills, hospital bills, lost wages.

(i) Special damages are P’s out-of-pocket expenses or economic losses

(ii) They are for things that are tangible in nature.

c. General/Non-Economic Damages: These are subjective losses for pain and suffering, emotional distress, hedonic loss

(i) Hedonic loss or damages (damages for loss of enjoyment of life or value of life)

(ii) Suffering prior to trial and any suffering that is reasonably certain to result from the injury in the future

(iii) Per Diem Argument: This is an attempt to quantify the value of general pain and suffering damages.

o This is a technique by P to argue to the jury, asking them to:

§ break physical and mental suffering down into days, hours or even minutes,

§ set out a value for each unit, and

§ Multiply the unit by the total amount of time that pain and suffering has lasted or may be expected to last

3. Punitive Damages

A. Limitations on Compensatory Damages

-à Tort Reform: Tort reform in some way limits the amount of compensatory damages that are recoverable. For example, medical malpractice and claims against the U.S. government.

· Latent Disease from Toxic Tort Issues

a. Increased Risk of Future Harm

· If P can suggest that it is more likely than not that he will contract a disease, P can recover from increased risk of future harm.

b. Medical Monitoring

· Exposed and at an Increased Risk: If P believes that he is exposed and at an increased risk, medical attention might ascertain the exposure to the disease.

(1) Courts may require that money be placed in a special fund to be used for medical attention in detecting the disease early if it develops

(2) An inquiry must be made as to whether P needs medical attention OR whether the condition P is claiming is a pre-existing one.

c. Fear

· P may be able to recover for reasonable fear of future harm to him.

o In order for P to recover under fear, he must prove the condition by:

a. Court testimony: Testimony showing a change in P’s behavior resulting from the accident which is reasonable under the circumstances

b. Real of phobia: The fear P suffers reasonably results his exposure to the injury.

§ Anderson v. Sears, Roebuck & Co.: The plaintiff girl was severely burned by a faulty manufactured space heater.

· Maximum Recovery Rule: Here, the trial judge considers each piece of the damage puzzle like pain and suffering, future pain and suffering, past medical bills, future medical bills, future disfigurement, and says what the maximum amount the jury could reasonably find for recovery.

· Remittitur: IF a verdict number is rendered that is so high that the court believes that it shocks the judicial conscience, the trial judge has the right to reduce the amount to a reasonable figure.

o IF the court grants remitter, P has two choices:

a. Take the new lower amount and go home, or

b. Roll the dice and take a retrial.

o Retrial may be on liability and damages, or

o The court will not retry on liability and ONLY retry on damages.

· Additur: This is a verdict that is so low that P’s lawyer can make a motion for additur (some courts allow P’s lawyer to do this).

a. When a verdict is inadequate, the trial judge may grant a motion for a new trial conditioned on D’s refusal to pay a larger sum set by the court

b. The chances for the court granting an additur are so remote because if you have a weak case, you tend to lose, and if your case is good, you will probably get a good damage amount (juries are usually fair if you have a good case)

Richardson v. Chapman:

· P Richardson and McGregor were rear-ended and Richardson was rendered a handicapped.

· P’s expert, an economist, renders an upper and lower range of the future medical care for Richardson

o The jury ended up going beyond the upper amount stated by P’s expert.

· The purpose of expert testimony is to help a lay jury member on issues not known.

***IF faced with two options, a remittitur and tort reform, take the remittitur amount****

NOTE:

è For federal tax purposes, a tort victim can exclude compensatory damages when entering his gross income amount

o HOWEVER, punitive damages are considered income.

è Traditionally, courts have not permitted Ps to collect interest on the award until judgment is entered or until a verdict is reached.

o In some states, legislatures have enacted statutes that allow P to recover interests on the amount of the award from the date of the injury, the date of a demand of payment from P, the date the cause of action was filed, or the date the expense was incurred by P.

Montgomery Ward & Co., Inc. v Anderson

o D is injured at P’s business and D is given a discount from the hospital on his bill.

· The Collateral Source Rule: IF this rule is in effect within a given jurisdiction, a tortfeasor is prevented from obtaining any credit (set-off), dollar for dollar or percentage, for monies received by P from collateral sources during the pendency of the litigation.

o When P receives compensation from sources such as health or medical insurance providers, life insurance, disability insurance, employee benefits (sick leave vacation pay), or governmental benefits, these are collateral sources for which D is precluded from getting any credit.

o IF payment is made by the tortfeasor, joint tortfeasor, insurance company or any other third party making the payment on behalf of