Damages Flashcards
What is the difference between damage and damages?
Damage is the loss or harm resulting from injury to person, property, or reputation. Damages are compensation in money imposed by law for loss or injury.
What is the goal of tort damages?
To make the plaintiff whole.
What are the two categories of compensatory damages?
Specific and general
What are specific damages?
Specific damages are for economic losses. These are pecuniary losses that can be reduced to a dollar amount.
What are general damages?
General damages are non-economic losses such as emotional distress and other things that cannot be calculated. They are subjective in large measure depending on the plaintiff and are often difficult to assess.
Why are future damages a problem?
Future damages tend to be most conflictual because the defendant will argue that they are speculative.
What is pain and suffering? How is it determined?
Pain and suffering are general damages which are determined based on factors including age, gender, how the injury occurred, preexisting conditions, personality, and job.
In wrongful death actions, can pain and suffering be awarded?
The victim’s pain and suffering cannot be awarded, but the spouse can claim their own pain and suffering from the loss of their spouse. In NIED claims, the survivor can sue for the emotional distress of the decedent.
How is pain and suffering calculated?
Pain and suffering does not have a precise measurement but a “shock the conscious” standard is used when making determinations regarding excessiveness.
What are contingency fees? How much are they?
Contingency fees are attorney’s fees taken out of an award contingent upon receiving that award. They are typically 30-40%.
What is the single judgment approach?
There will only be one judgment out of a case. Most judgments generally tend to take the money awarded and adjust it for either future inflation or interest rates from the plaintiff investing it.
What is present cash value?
If the plaintiff is awarded damages for pecuniary losses which he will incur in the future, the amount of damages must ordinarily be reduced to the present cash value which is the sum of money needed now.
How is loss of future earnings proven?
Loss of future earnings is proved with reasonable certainty by evidence of (1) the amount of wages lost for some determinable period of time and (2) the future period of which wages will be lost. The measure of wages is the gross amount, not taking into account any deductions or withholdings.
When are awards taxable?
Generally, recovery for pain is not taxable, while recovery for wages and punitive damages is taxable.
What is the collateral source rule?
An evidentiary rule which forbids it being made known to the jury that the plaintiff’s injuries have been paid by any collateral source such as insurance.
