class 2

Question 1

evaluating compensatory damages in torts

Answer 1

1. can the P prove a cause of action
2. can the P prove that the D conduct was the cause in fact of the loss
3. were the damages reasonably foreseeable? did the tortious conduct proximately cause the harm?
4. can the P prove that they actually suffered harm?
5. can the P prove a reasonable amount of damages suffered. this needs to be proven with specific evidence for economic/specific damages
6. were the damages unavoidable?
7. are there any defenses that could negate or reduce the damages?

Question 2

derivative claims

Answer 2

wrongful death, loss of consortium, bystander recovery

Question 3

derivative claims characteristics

Answer 3

there must be a successful claim by the primary victim for the derivative P to have a claim
no claim by primary v= no claim for derivative P
offset/reduced damages for primary V= offset/reduced damages for derivative P

Question 4

Contributory negligence Jx

Answer 4

if P has ANY fault- no recovery

Question 5

Pure comparative fault jx

Answer 5

the P recovers whatever % the D is responsible.

Question 6

v1 modified comparative fault jx

Answer 6

recover if the D is 51% or more at fault

Question 7

v2 modified comparative fault jx

Answer 7

recover if the D is 50% or more at fault

Question 8

purpose of punitive damages

Answer 8

purpose: to punish a wrongdoer and deter future wrongful conduct
the conduct has the character of outrage frequently associated with crime
not typically available for. breach of contract
usually for physical harm but can include harm to property

Question 9

proof for punitive damages

Answer 9

1. proof of the underlying cause of action
2. proof that the conduct in the underlying cause of action was done with malice, oppression, or fraud as proved by clear and convincing evidence.

Question 10

clear and convincing

Answer 10

more than preponderance but less than beyond a reasonable doubt
highly probable that the fact is true OR so clear as to leave no substantial doubt and sufficiently strong to command the unhesitatingly asset of every reasonable mind.

Question 11

punitive damages: type of conduct

Answer 11

usually applies to intentional conduct; malice, oppression, or fraud. it is rare, but it can also apply to unintentional conduct; despicable OR conscious disregard

Question 12

Malice

Answer 12

conduct which is intended by the D to cause injury to the P or despicable conduct that is carried on by the D with a willful and conscious disregard of the rights or safety of others.

Question 13

oppression

Answer 13

despicable conduct that subjects a person to cruel and injustice hardship in conscious disregard of that persons rights

Question 14

fraud

Answer 14

intentional misrepresentation, deceit or concealment of a material fact within the intention of depriving a person of property or legal rights, or otherwise causing injury

Question 15

despicable conduct

Answer 15

conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by most ordinary decent people.

Question 16

conscious disregard

Answer 16

manes that the D was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequence. The D must have ACTUAL KNOWLEDGE of the risk of harm It is creating and in the fact of that knowledge, fails to take steps it knows will reduce or eliminate the risk of harm.

Question 17

things to consider for malice, oppression & fraud

Answer 17

severity of misconduct, profitability, duration, concealment, D awareness, attitude

Question 18

punitive damages for Corporate malfeasance

Answer 18

where there is a company policy that willfully, consciously and despicably disregards the rights and safety of others
this can be shown by piecing together knowledge and acts of the corporations managing agents or persons working in a managerial capacity.

Question 19

amount of punitive damages

Answer 19

the amount necessary to deter and punish the D.
up to the jury
states may have statutory limits and constitutional limits (9:1 ratio)

Question 20

policy for capping punitive damages

Answer 20

avoid a windfall for P
exposing D to liability that is disproportionate to culpability
focus is on the D’s conduct that must be deterred and not the outcome of the conduct
split recovery

Question 21

constitutional limits on punitive damages

Answer 21

unconstitutional= the due process clause= prohibits the government from arbitrary taking property
arbitrary= no set calculation for punitive damages so the jury award could be very different from the same conduct
proportionality= comparing the amount of compensatory damages with the punitive damages if the punitive damages award may be considered arbitrary and unconstitutional

Question 22

3 guideposts for reviewing punitive damages

Answer 22

degree of reprehensibility of the D misconduct;
disparity between the actual or potential harm suffered by the P and the punitive damages award; and
difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

Question 23

determining reprehensibility

Answer 23

harm caused was physical, tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; the harm was the result of intentional malice, trickery or deceit or mere accident.
* it should be presumed that a P has been made whole. so the punitive damages should only be awarded if the D culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.

Question 24

punitive damages disparity

Answer 24

no more than 9:1 ration
but, sometimes a particularly egregious act may result in a small amount of economic damages and punitive damages are still warranted.

Question 25

punitive damages are not a substitute for criminal process

Answer 25

take care to avoid use of the civil process to assess criminal penalties that can be imposed only after the heightened protections of a criminal trial have been observed. courts can look to other punitive damage awards for guidance

Question 26

award adjustments

Answer 26

attorneys fees, collateral source rule, adjustments for time

Question 27

Attys fees & costs

Answer 27

payment of fees and or costs will "adjust" the amount of money received by the P prevailing party fees= loser pays = only by statute and is limited loser pays costs (standard)

Question 28

collateral source rule

Answer 28

P receives compensation for the harm caused by D from a third party- usually insurance this money is not deducted from the damages to be paid by the D Damages are calculated without inclusion or consideration of any compensation P will receive from an outside source

Question 29

CSR

Answer 29

D generally are barred in personal injury cases from introducing evidence of money to show that the P has received from other sources to help pay for their injury.. primarily an evidentiary rule

Question 30

most insurance policies provide for either subrogation or refund of benefits upon a tort recovery. D pays P and P pays the insurance back

Answer 30

CSR

Question 31

hanif- Paid or billed

Answer 31

held that P could no recover medical damages beyond what had been actually paid for medical services, usually because of a pre-negotiated reduced cost between the insurance and the medical provided. CA Supreme Court continued to move further from the purpose of the collateral source rule by preventing P from introducing evidence of the full billed amounts of medical expenses at trial. instead, medical bills can be introduced at trial to prove the actual amounts paid

Question 32

uninsured P

Answer 32

medical bills are admissible to prove both the amount incurred and the reasonable value of medical services provided. must also present additional evidence to establish that the amount billed is a reasonable value for the services rendered.

Question 33

adjustments for time- increasing

Answer 33

prejudgement interest: increasing an award of damages for past harm to reflect the time value of money. this increase is done by adding a certain amount of interest from the date the loss was incurred until the date the damages are awarded. this only applies to damages capable of calculation at the time of the harm. prejudgment interest is discretionary. [award $ x interest rate x time = prejudgment interest]

Question 34

adjustments for time- increasing

Answer 34

post-judgement interest: increasing an award by adding a certain amount of interests is always allowed on the post judgement amount. this means an award has been given and the D is delayed in paying the award. interest will accrue from the time of the judgement to the time of payment. post-judgement interest is always allowed. [award $ x interest rate x time = post-judgement interest]

Question 35

adjustments for time- decreasing

Answer 35

reducing to present value: decreasing an award to reflect the time value of money. the amount awarded for the future harm is reduced by an appropriate amount, which is calculated by taking into account a reasonable rate of return if the money were invested during the relevant timeframe. this is only applied to economic damages (not non-economic such as emotional distress damages) [interest rate - inflation rate = %]

Question 36

total offset method

Answer 36

assume that future inflation and the discount rate will offset each other