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Torts (James) > Negligence: Damages > Flashcards

Flashcards in Negligence: Damages Deck (12):

Purpose of Damages

To make the plaintiff whole. Juries are supposed to base damages on substantial evidence. Calva-Cerqueira v. United States.


Mitigation of Medical Damages

Where a Π unreasonably fails/refuses to undergo medical treatment that would alleviate the medical difficulties, the Δ may be relieved of the responsibility for damages.


Medical Pain & Suffering

(Matsuyama v. Birnbaum)
A jury could find that
A) a doctor's negligence caused pain & suffering apart from the loss of chance. Compensatory damages like any malpractice case, NOT part of proportional damages calculation.
B) the ultimate injury involved pain & suffering that would more likely than not have occurred absent the doctor's negligence (doctor may only be held liable for this to the extent that his negligence diminished the decedent's likelihood of avoiding this outcome). IS subject to the proportional damages calculation.


Compensatory Damages

1. Past earning losses & future earning power losses (special)
2. Past & future medical expenses (special)
3. Past & future pain & suffering (noneconomic)


Past earning losses & future earning power losses

Lost income; if permanent injuries, Π must show work-life expectancy to recover future earning power losses. In the past, work-life tables have included Π's race & gender to determine work-life expectancy.


Past & future medical expenses

Π has no duty to accept less costly form of care as long as medical expenses are reasonable.


Past & future pain & suffering

If permanent injuries, Π must establish life expectancy, often via mortality tables that consider the individualized circumstances of the Π, physical, medical, & otherwise.


Collateral Source Rule

Payments from collateral source can't diminish from the Δ's share (hospital waiving fees shouldn’t make Π recover less).
–Two rules in one for damages & evidence
A) Damages – If Π is compensated for injuries by some source independent of the Δ (usually insurance), Π still entitled for a full recovery against the tortfeasor. Reasons:
a. The Δ should pay & not get a windfall
b. The Π paid for the collateral benefit
c. The Π was the intended donee
d. Personal injury compensation does not fully compensate
e. Collateral benefit deductions may be difficult to compute
B) Evidence – precludes proof of collateral payments


Punitive Damages

Δ's conduct demonstrates higher degree of culpability above negligence (aggravated circumstances of intentional misconduct, recklessness, fraud, malice, or outrage):
1. Likelihood of serious harm
2. Degree of Δ's awareness of that likelihood
3. Profitability of Δ's conduct
4. Duration of the misconduct
5. Attitude of the Δ upon discovery of the misconduct
6. Financial condition of the Δ
7. Deterrent effect of other punishment imposed upon the Δ as a result of misconduct
–Sanctions should be based on the wrong done in the particular case, not against the company for broad practices. State Farm Mutual Auto Ins. Co. v. Campbell
–Comparative negligence: (Majority) punitive damages not reduced when Π also negligent.


Wrongful Death

Statutes allow for right of action for surviving dependent beneficiaries such as: spouse, children, parents, & siblings.


Loss of Enjoyment of Life

Some courts allow juries to consider the claim as a separate category of damages, evidenced by testimony of family/friends. Mercardo v. Ahmed.


Loss of Consortium

(Reagan v. Vaughn)
–Family members may also lose companionship, affection, counseling, & household & other services of an injured person.
–Can’t be sustained if primary physical harm victim's claim doesn’t succeed.
–Includes seriously injured kids (love & affection relationship).
–States more likely to recognize a parent's consortium claim for minor than adult kids.
–Parental consortium claims by kids: parent is severely injured & involve parental services, comfort, care, companionship, guidance, counseling, & affection
* At least 16 states recognize it, but the MAJORITY has refused to recognize such claims as a matter of common law.