TORTS II- Dotson
DAMAGES
1. Nominal- small sum awarded to P to vindicate rights (no harm is done)
2. Compensatory- to make P whole; represent closest $ equivalent to loss/harm suffered
a. Special/Economic- lost wages, out of pocket medical expenses
b. General/Non-Economic- physical/mental suffering, loss of appearance
Duty to Mitigate/Avoidable Consequences- P in a personal injury case can’t claim damages for what would otherwise be permanent injury if the permanency could have been avoided, when a reasonable person would have done so under the same circumstances.
3. Punitive- purpose is to punish D (over and above compensatory damages)
Three Guide Post (used in reviewing punitive damages)
1. degree of reprehensibility of D’s conduct
2. disparity btw. actual/potential harm to P & punitive damages awarded
3. diff. btw. punitive damages awarded & civil penalties for comparable cases
Common Law Malice- usually an indicator of whether punitive will be awarded (intent to injure or reckless disregard for whether injury would occur)
Intentional Torts- punitive usually permitted
Negligence- no punitive
Gross Neg. – punitive if you show common law malice
Strict Liability- evidence needed for punitive is greater than for compensatory (must show actual malice- known/should have known, and conscious disregard of foreseeable harm)
Determining Reprehensibility- w/ regard to punitive; consider whether
1. harm caused was physical vs. economic
2. tortious conduct shows indifference to or reckless disregard of the health/safety of others
3. target of the conduct had financial vulnerability
4. conduct involved repeated actions vs. isolated incident
5. harm was result of intentional malice, trickery, deceit vs. accident
*the existence of any one weighing in favor of P may not be enough to sustain punitive damages award; absence of all renders any punitive award suspect.
Judicial Review- review is limited unless award so high/low that it shocks the conscious.
Rule- few awards exceeding a single digit ration btw. punitive and compensatory damages will satisfy due process (9 to 1 serves goal of deterrence and retribution)
Motion in liminie-pre trial request that certain inadmissible evidence not be referred to or offered at trial. Rationale that mere mention of it would be highly prejudicial and a jury instruction would not help.
Remittitur- when ct. feels punitive award is too high, grants motion for new trial (if on damages alone it would be a conditional remittitur) that is conditioned upon P’s refusal to accept a lesser amount.
Bifurcation- trial is divided into 2 phases (usually liability phase, then damages phase) Rationale is so jury doesn’t hear certain evidence regarding D’s wealth until after ruling on liability; avoid prejudicial impact of evidence of wealth.
Collateral Source Rule- D can’t bring up during the trial monies paid to P, to offset his amount he has to pay; applied when P receives compensation from any source collateral to the torfeasor (ex. health ins., vacation pay, gov’t. benefits)
exceptions: immediate source: doesn’t apply to payments (or settlements) made by the D or joint tortfeasors, or anyone making pymt. on behalf of these two groups
WRONGFUL DEATH
A wrong that causes a death is needed to establish a claim
Beneficiaries
Original- action was for benefit of husband, wife, parent, or child of deceased.
Child- yes; some say only if there is no surviving spouse
Parent- if child dies w/o spouse or children; some require parent to show financial dependence on child.
Examples of Damages:
1. Funeral cost (reasonable)
2. Pecuniary Benefit
General- salary
Specific- things deceased promised to do for others (pay tuition)
3. Companionship
evidence of happiness/discord in the marriage is admissible on the issue of da
ss.
2. Choice- driver may choose to be included in the modified no fault sys. or just tort sys.
Disaster Compensation Funds
September 11th Victim’s Fund
Victim’s given choice of common law claim or a no-fault benefit
Designed to free airline from numerous potential claims
Collateral benefits were to be offset (circumventing collateral source rule)
DEFENSES
Statute of Limitation- complete bar to actions that don’t meet its time limits; no way dependent on merits of claim. Consequence is some will lose out on recovering damages for an injury in order to protect D from defending stale claims.
Discovery Doctrine- limitation period doesn’t begin to run until P discovers/reasonably should have discovered the injury giving rise to claim. Rationale is not holding P to bring claim when he didn’t know he had one. SOL usually starts after discovery.
Accrual- SOL provide that the time w/in which to file begins to run when the cause of action accrues; usually when injury occurs
Tolling- SOL contain w/in them provisions that stop the running of time w/in which to file for various reasons.
Equitable Tolling- D commits some type of fraud to hide evidence from P to run up the time- this would stop the clock
Statute of Repose- triggered when another event (when product is sold or services given) occurs. Says that there is a certain period in which, after you get by set time, D is no longer responsible or liable. Rationale is D should be able to wipe the books clean of things after a certain time and protects D’s right in trial; willing to accept that some injured parties won’t be able to recover.
IMMUNITIES
1. Spousal- no longer
2. Parent/Child-
