Professional Documents
Culture Documents
(1) Damages
(a) Damages discusses how we measure harm.
(b)Relate to negligence, strict / product liability, intentional harm.
(c)
Two Types:
(d)
Damages at Issue
(i) In cases where damages are issue, there is a conflict between the three large
policy guidelines behind tort law.
(1)e.g., sometimes compensation doesn't match with deterrence.
(2)
Compensatory Damages
(a) The overarching principle echoes the corrective justice theme in tort law.
(i) Defendant has taken something from plaintiff so defendant must restore plaintiff
to status before the injury, often talked about as making plaintiff whole.
(b)Courts must calculate what already happened and predict what will happen.
(i) Issue: Calculating what has already happened easier than predicting future
damages.
(c)
(d)
Property Damage
(e)
(f)Future Expenses
(i) Discounting to Present Value When damages are for impaired future
earning capacity, damages must be discounted to the present value to avoid
excess awards. $35,000 today is less than $35,000 tomorrow but $35,000 can
be invested and earn interest.
(ii) Two Approaches
(1)Total Offset Method (pg. 721)
(a) P will lose 35,000 income for the next five years. No cost of living
increases in salary, no merit raises etc.
(b)Court says that because there is inflation, plaintiff could earn interest,
which cancels cancels out the lower future value.
(c) There is no calculation.
(d)Plaintiff gets 35k per year, lump sum.
(2)Offset Present Value
(a) D = Lost Income / (1 + Discount rate (.02)) ^ t (year #) -1
(b)If Ps attorney, want LOWER discount rate (equals higher damages)
(c) Carne case (pg. 721) - makes this point about how much the discount rate
matters in how the plaintiff will win (damages)
(d)
Life Expectancy
(g)
(i) Want plaintiffs to get money, not sure defendants will stay solvent / alive
(ii) Want defendants to be able to move on
(iii) Burden on judicial system
(iv) Encourages plaintiff to heal
(h)
Excessive Damages
Majorit
y
An appellate court can hold a judgment excessive only on the ground that the
verdict is so large that, at first blush, it shocks the conscience and suggests
passion, prejudice or corruption on the part of the jury.
Dissen
t
NY
(N6)
Passed statute that stated appellate division will determine that an award is
excessive or inadequate if it deviates materially from what would be
reasonable compensation.
(e)
Awareness
(a) Pain and Suffering requires awareness and has no meaning without it
because you have to be aware of suffering to experience it. Loss of life
does not require awareness to experience it.
(3)Majority approach bad: worse you mess someone up, the less you have to
pay them for.
(4)Without compensation, under deterring negligent conducts.
Majori
ty
Dissen
t
(b)
In both survival actions and wrongful death damages, the victim is dead or
will die.
(c)
Fact Patterns:
(d)
Difference between wrongful death, survival can be determined by looking at
who suffered loss of enjoyment of life.
(i) If the victim suffered, it is survival.
(ii) If the victims beneficiaries suffered, it is wrongful death.
(e)
Survival
(i) Harm
(1)
Recovery of damages the deceased could have obtained (personally
enforced) before death (eg. medical bills, pain / suffering)
(ii) Party
(1)
(iii) Notes
(1)
Survival actions are actions the deceased would have had if he was
alive and concerns damages victim suffered while alive.
(f)Wrongful Death
(i) Harm
(1)
(a)
(ii) Party
(1)
They are about compensating victims beneficiaries for what happened
to victim (not for victims loss of life)
(iii) Notes
(1)
Wrongful death is different than loss of consortium because in wrongful
death, person must have actually died
(2)
Based on tort, not separate action (e.g. wrongful death based on
battery, wrongful death based on negligence)
(g)
Loss of Life
(h)
(5)
Insurance
(a)
act.
Most insurance will cover you even if you are injured by anothers tortious
(b)
(c)
(i) Plaintiff gets medical benefits covered by her insurance and full damages from
the defendant.
(ii) Defendant cannot introduce evidence of plaintiffs insurance.
(iii) Justifications:
(1)
(2)
Courts dont want to punish plaintiff for doing what they are supposed
to do (have insurance)
(iv) Problems:
(1)
(d)
(i) When plaintiff receives judgment, insurer is reimbursed for expenses paid. Most
insurance policies have a subrogation clause.
(ii) Problems:
(1)
(2)
Its not always clear what is paid to insurer when the case is settled
(what if P. settles for less?)
(3)
It does not always address future payments and that will be paid out
(judgment, insurance paid out, future medical expenses continue and are
billed to insurance).
(e)
(f) Either:
(i) Plaintiffs damages are reduced by the amount the insurance will pay, or
(ii) Defendant can introduce evidence that plaintiff has insurance and let jury
determine payment
(1)Duty to Settle in Good Faith
(g)
(h)Insurance companies limit policies to a certain amount and are less at risk than
insured for anything over the policy limit and insurance co. has control over
litigation by contract.
(i) State Farm v. Campbell Case where insurance company didnt settle in good
faith. Company was unreasonable to not settle in good faith because they opened
their client to the full range of liability.
(i) Campbell (and single-digit ratio) is boldest restriction on state law for punitive
damages.
(ii) Constitutional limitations on punitive damages - due process prohibits excessive
awards.
(a)
Majority:
(i) Punitive damages are appropriate when the defendant has been guilty of
oppression, fraud, or malice, express or implied.
(1)
(b)
Minority:
(i) Punitive damages are not necessary and should be awarded with greatest
caution in accident cases
(ii) Concerns with Majority Rule:
(1)
Insurance not paying out when there are punitive damages, which
would harm plaintiff
(2)
Interferes with trial procedures as the court would have to examine
finances to decide whether or not punitive damages should apply
(3)
Unjust Enrichment - plaintiff will be overly compensated if they get
punitive damages (unfair, not just compensation)
(c)
Statutory Changes:
(i) California eventually revise the law to require malice be proven by clear and
convincing evidence. Redefined malice, oppression, fraud.
(ii) Malice
(1)
intended by defendant to cause injury to plaintiff or despicable conduct
carried only defendant with willful and conscious disregard for rights and
safety of others
(iii) Oppression
(1)
despicable conduct that subjects person to cruel and unjust hardship in
conscious disregard of persons rights
(iv) Fraud
(1)
intentional misrepresentation, deceit or concealment of material fact
known to defendant with intention on part of defendant of thereby depriving
a person of property or legal rights otherwise causing injury.
(v) Many states are taking action to constrain punitive damages.
(vi) Abolished
(1)
(d)
Product Liability
(i) Ford Pinto Evidence that company could have corrected hazardous design
defects at minimal cost but deferred correction by cost-benefit analysis
balancing human lives and limbs against corporate profits. Massive punitive
damages awarded.
(1)
Paradox, as tort law balances life and utility but public finds it immoral.
(e)
(i) Various approaches for punitive damages on employers who are vicariously
liable.
(ii) Issue: Some states allow for punitive damages. Other states use Second
Restatement
(iii) Restatement justifies limited approach as rationale for punitive damages
make it improper to award against party who is innocent (not negligent) and
only vicariously liable.
(1)
Third Restatement observes difference between this rule and rule
allowing for punitive damages may not be that great. .
(iv) Second Restatement:
(1)
Punitive damages can be properly awarded against a master or other
principle because of an act by an agent, but only if:
(a) the principal or managerial agent authorized the doing and manner of
the act, or
(b) the agent was unfit and the principal or managerial agent was reckless
in employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in
the scope of employment, or
(d) the principal or managerial agent of the principal ratified or approved
the act.
(iii) TXO Production Corp Pre-Campbell case, Court upheld punitive award of $10
million (526 x larger than compensatory award of $19,000). Court rejected
constitutional challenge based on ratio as there was no maximum ratio set.
(1)
Reasoned if a man fired into crowd and only damaged a $10 pair of
glasses, the compensatory damages may only be $10 but thousands of
dollars in punitive damages may be allowed to discourage further conduct.
(a)
Including:
(iv)
(v)
(2)
The disparity between the actual or potential harm suffered by
the plaintiff, and the punitive damages award
(a) Few awards exceeding a single digit ratio between punitive and
compensatory damages to significant degree, will satisfy due process
(b)Single digit ratio is considered the biggest part of this case and the only
SCOTUS decision on how much punitive damage should be
(c) The difference between the punitive damages awarded by the jury and
the civil penalties authorized or imposed in similar situations
(g)
(i) Williams - SCOTUS follows on Campbell, issue is role of harm to other persons in
punitive damages. SCOTUS found due process barred consideration of harm to
others in awarding punitive damages.
(ii) Defendant cannot be punished for harm to others.
(iii) Harm to others may be considered in:
(h)
(1)
(2)
(3)
Defendants Wealth
(i) If a defendant is wealthy, juries are not prohibited from considering wealth as a
factor. However, defendants wealth does not make unconstitutional awards
unconstitutional. Generally, courts focus more on conduct in question.
(ii) Bifurcation
(1)
Many states.
(2)
First, the jury hears evidence determines if punitive damages are
appropriate.
(3)
Secondly, evidence of wealth or prior awards (in repetitive award
cases).