Damages

Question 1

General

contract v. tort

Answer 1

damages that compensate the plaintiff for those losses that are the natural and probable consequence of the defendants wrong.

In Contract damages include:
- expectancy loss in value

In Tort
- past pain and suff
- past mental anguish
- physical disfigurement
- aggravation of preexisting condition

do not have to plead

Question 2

H

Economic Loss rule

Answer 2

• Prevents turning a negligent action into a tort claim when there is no property damage or personal injury.
  
  • If economic loss is accompanied by personal injury or damage to independent property, a tort suit can be brought.
  • Example: If a machine fire damages both the machine and the warehouse, a tort suit for product liability is valid due to harm to independent property. Similarly, employees injured by the fire can sue for tort.
  • If you can sue for breach of contract, you can do so, but you can’t turn it into a tort.
• The easiest way to explain is that an economic loss caused by a tort, a personal injury or injury to the independent property of the plaintiff, can bring a tort suit

Question 3

Special Damages

Actual damages - out of pocket

Tort v. Contract CL?

Answer 3

Compensate P for those losses that result naturally but not neccessariliy that is not in every case, from the defendant wrongful act.

In contract: not generally available in a breach of contract case, only when they were in the contemplation at the time of contracting; (Hadley Case)
- lost profits
- cost of delay

Special damages cover injuries that were not within the contemplation of the parties at the time of contracting because they were
(1) unusual and unexpected, in the sense of not being obvious, and

(2) not disclosed during negotiation as protection the nonbreaching party desired.

In Torts:
future pain and suffering
future mental anguish
- physical impairment
- medical expenses past and future
- lost of past and future earning capacity
- loss of consortium
- loss of services and
- exemplary damages

must plead the specific claim for specail damages

Question 4

Collateral Source Rule

CL concerning Insurance?

CL concerning gifts?

Answer 4

Generally the defendant cannot use money paid to the plaintiff from a source other than the defendant. (insurance) to reduce damages. (Helfend)

• in Tex if P claims medical expenses those expenses cannot exceed the amount paid or to be paid.
• Ex,: if an insurance company pays 10k for med bills the defednant cannot argue the plaintiff suffered no damages because the insurance company covered it

Arambula case: injured party was paid by his familys company even though he could not work defense tried to argue that plaintiff should not get lost wages.

Question 5

Present Value

Answer 5

refers to that sum which if paid now would with reasonable investment yield the amount of future damages to be lost in a future year.

Question 6

Fact v. Extent

Burden of Proof?

CL for extent of Injury? why is it important

Answer 6

Fact of Injury
- proving his injuries will actaully occur to a reasonable certainty
- proving usually is easy as long as your proved causation as plaintiff is seeking damages for expeneses already incurred

Extent of Injury
- act that injuries have or will occur, the plaintiff need only persuade the jury with evidence sufficient to prove the extent of those injuries in order to justify damages. Although the plaintiff cannot support an amount of damages with speculation (see Holt case, conflicting evidence and the credibility of opposing witnesses is to be determined by the jury. Therefore, the plaintiff need not prove the amount of damages with precision.

Question 7

Punitive Damages

3 factors in determining unconsitutionality of awards? the Case Law??

Answer 7

1. Reprehensibility
   the harm was physical as opposed to economic;
   the 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; and
   the harm was the result of intentional malice, trickery, or deceit, or mere accident.
2. Ratio of Punitive to Compensatory
   Consider relationship between harm to the plaintiff and punitive damages award.

No bright-line rule exists, but any award that exceeds a single-digit ratio must be considered constitutionally vulnerable.

3. Disparity betwee punitive damages and civil penaltieds

What civil fines are available?
Does the cost of closing the business count?

State Farm Case give us the three factors

Question 8

Trespass

3 elements

Answer 8

A def trespasses on plaintiff land she causes a physical invasion or interference with the right of exclusive possesion of the land.

Elements
- plaintiff owns the land
- Def enters the land physically, intentionally and voluntary
- the entry caused injury to the plaintiff

General Rule: damages for a trespass that causes a “permanent” harm to land should equal the pre-trespass market value minus the post-trespass market value of the land. Punitive damages can be recovered for intentional and malicious interference with an owner’s right to exclusive possession of land.

Question 9

Nuisance

CL for balancing test of nuisance?

Answer 9

A defendant’s actions create a nuisance when the use of her land unreasonably interferes with the use and enjoyment of another’s land.

Escobar Case Balancing Factors

-,Amount of harm caused by the interference
- Relative capacity of the plaintiff and defendant to bear the loss by way of shifting the loss to the consuming public at large as a cost covered by insurance.
- Nature of the Plaintiff’s use of his property
- Nature of the Defendant’s use of his property
- Nature of the locality
- Priority in time in regard to the arrival of the plaintiff or defendant (coming to the nuisance)

Elements of the cause of action:

Plaintiff has an interest in land.
Defendant substantially interferes with the plaintiff’s private use and enjoyment of that interest by conduct that was
(a) negligent,
(b) intentional or unreasonable, or
(c) abnormal and out of place in the surroundings.

Defendant’s interference causes injury to the plaintiff.

Question 10

Liquidated Damages

3 elements (first look v. second look)

Answer 10

Parties may, in general, agree to a contractual provision that sets an amount of liquidated damages in case of breach. However, that contractual freedom is limited by the rule that an amount of liquidated damages greatly exceeding actual damages amounts to an invalid penalty

(1) was there difficulty in estimating the amount of actual damages or difficulties of proof, at time of K. and

(2) was the liquidated damages provision a reasonable forecast of actual damages. at the time of K.

3. is there an “unbridgeable discrepancy” between actual and liquidated damages. at time of breach (second look approach)

Texas follows second look approach (Atrium Case)

Question 11

Measuring Damages for Trespass

Answer 11

Different Measures of Damages for trespass to land:

1. Reasonable (in relation to its pre-trespass market value) cost of restoration, when land has personal value or has a business use, but generally limited to loss of market value when land is held for investment purposes (and is not likely to be restored); and
2. Loss of use damages; and
3. Punitive damages for intentional (malicious) trespass