damages Flashcards
Define nominal damages
A small sum of money awarded to the P in order to vindicate rights, make the judgment available as a matter of record in order to prevent the D from acquiring prescriptive rights, and carry a part of the costs of the action. The amt. of the award is unimportant
Define compensatory damages
damges intended to represent the closest possible financial equivalent of the los or harm suffered by the P to make the P whole again, to restore the P to teh position the P would have been in before the tort occurred (most of what we worked on)
Define punitive damages
These are an additional sum, over and above the compensation of the P awarded in order to punish the D, to make an example to the D, and to deter D and others from engaging in similar tortious conduct
Who decides the monetary amount of damages?
The jury.
higher courts on appeal determine reasonability
What do statutes put caps on?
They can put caps on punitive damages
What are the types of damages awarded for personal injuries?
Economic loss, physical pain, and mental distress
Give some examples of various mental consequences of the injury
- can include fright and shock at the time of injury
- humiliation due to disfigurement, disability
- unhappiness and depression at being unable to lead one’s previous life
- anxiety of the future
What is the maximum recovery rule?
A court will overrule a jury’s determination of damages only if the damages exceed the maximum amount a jury could reasonably find based upon all of the evidence
What is the role of expert testimony to prove future damages to show a long-lasting injury?
They show what future prospects would have been had the P not recieved the injury- how much he could have earned, changes in life expectancy, etc.
What is the effect of taxation on settlement for personal injuries?
settlement is tax free- courts are split whether to tell a jury this or not
What is the collateral source rule?
As long as payments for any aspect of harm is not made by the D or someone acting on his behalf (like the insurance co) then P’s recover from the D is not diminished by the amount of these payments
examples of payments on behalf of the P:
-employment benefits (sick pay/ workers comp)
-insurance
-social security and welfare
-free services
This is considered a harsh rule- because it is the tortfeasors responsibility to compensate for all harm he causes, not confined to the net loss that the injured party receives
Critiques- that it allows for double recover- more than just making whole
What are the exceptions to the collateral source rule
- rebutting the Ps testimony that he or she was compelled by financial necessity to return to work prematurely or forego additional medical care
- show the P had attributed his condition to some other cause, like sickness
- impeach the P’s testimony that he or she had paid his medical expenses himself
- show the P had actually continued to work, instead of being out of work as claimed
What is mitigation?
A P may not recover damages which he could have reasonably avoided by submitting to treatment (or surgery); the P has a duty to mitigate.
in particular, this means they cannot recover for harm which could have been avoided had he sought adequate medical care
test is ordinary prudent person under similar circumstances
With regards to physical harm to property, what are the results of a chattel being destroyed, damaged, or disposed for a limited time?
If destroyed, damages measured in its entire value at the time and place of the tort
if damaged, measured by the difference in value before and after the injury (repair costs)
if disposed for a limited time: value of the use of which the P was deprived (rental value)
With regards to physical harm to the property, what standard is the value based?
standard market value of the property
- what the property could have been sold for open market
- determined at the time and place of the wrong
- sometimes the “personal value” is determined from the original cost of the property, and the use made of it, and the condition at the time of wrong
- for pets, consideration may include the animal’s training and characteristics as well as veterinarian expenses
