Pg 10

Question 1

What are situations that you’re likely to be able to also recover infliction of emotional distress?

Answer 1

In conjunction with negligent destruction or damage to property, trespass, or conversion. Generally a contract is only given if the subject matter was unique

Question 2

What is a fragile plaintiff’s duty to mitigate?

Answer 2

Defendant takes the plaintiff as he finds him, including pre-existing conditions and fragile plaintiffs. Fragile plaintiffs have the same duty to mitigate as regular plaintiffs, but the defendant is responsible for all of the extra things that may apply when a fragile plaintiff is trying to mediate

Question 3

Why do you need to watch out in mediation for comparative and contributory negligence?

Answer 3

Sometimes the plaintiff will contribute to his own injury BEFORE the defendant’s wrongful conduct, and that triggers contributory or comparative negligence, not mediation. I.e.: if the plaintiff rode his bike without a helmet, then got hit by the defendant and suffered brain injury, which would not have happened if he was wearing a helmet, that is not a mitigation issue, it is a contributory negligence issue that will result in his recovery being reduced by the percentage of his own fault for causing his own injury.

Question 4

What is the timing with regard to mitigation and contributory or comparative fault?

Answer 4

• mitigation happens AFTER the harmful injury

– comparative and contributory fault happen BEFORE the injury

Question 5

What happens if a plaintiff cannot afford to mitigate?

Answer 5

Then he doesn’t have to. This might happen if he doesn’t have enough money to see a doctor

Question 6

If there is more than one choice to mitigate injuries, and the plaintiff chooses the wrong one, what happens?

Answer 6

He’s still considered to have mitigated as long as his choice was reasonable

Question 7

If a plaintiff uses his own judgement about a dangerous or serious operation, is that OK?

Answer 7

Yes.
– if the operation is simple and not dangerous: failing to have it would be unreasonable
– if a surgery carries substantial risk and there’s no guarantee of success: the plaintiff doesn’t have to do it because he has the right to avoid peril to life and risk to his health.

Question 8

If a plaintiff refuses treatment on religious grounds, how does mitigation work?

Answer 8

Recovery is precluded because even though the plaintive has the religious freedom not to get treatment, it is unreasonable to do so

Question 9

What is the collateral source rule?

Answer 9

The tortfeasor cannot reduce his own liability by the amount of collateral benefits the plaintiff receives

Question 10

What type of law does the collateral source rule apply to?

Answer 10

Only torts, it does not apply in contract

Question 11

What is considered to be a collateral source?

Answer 11

A benefit that was gotten by the plaintiff from a source that is independent of the defendant

Question 12

If the plaintiff filed an insurance claim to recover for an injury by the defendant, anything from the insurance is considered to be what?

Answer 12

An independent collateral source that has nothing to do with the defendant because the plaintiff had his own contract with the insurance company, which was a collateral relationship between him and the insurance company that is independent of his relationship with the defendant

Question 13

If a suit is about a breach of contract, can you bring in collateral sources?

Answer 13

Yes, and whatever was paid from those collateral sources can offset the defendant’s liability. The reason is that the collateral source rule doesn’t apply to contracts (it only applies to torts).

Question 14

A person can only recover once for his injuries, but in tort, any recovery that comes from a collateral source is viewed as what?

Answer 14

It is not viewed as recovery for the injury

Question 15

How is the collateral source rule viewed as a rule of substance and a rule of evidence?

Answer 15

– substance: it applies to the awarding of damages that courts use to determine how much should be given to the plaintiff
– rule of evidence: defendant cannot introduce evidence that the plaintiff got a benefit from a collateral source

Question 16

What is the rationale behind the collateral source rule?

Answer 16

• it prevents the trier of fact from being influenced by this information and giving less to the plaintiff thinking he has already been compensated
• the law does not want the defendant to get a windfall or benefit
• courts do not want to disincentivize people from getting insurance

Question 17

Why is the law OK with double recovery to the plaintiff under the collateral source rule?

Answer 17

Because the focus is on the defendant paying his share. Plus double recovery is rare since most insurance companies have subrogation clauses

Question 18

What are the two problems that come up under the independent source requirement for the collateral source rule?

Answer 18

Because the benefit has to come from an independent source (not the defendant), problems come up when:
– the United States is the defendant: there’s an argument that if Medicare, Medicaid, or veteran’s benefits paid for the medical treatment, those are funded by the government, so technically if the government is the defendant, then it isn’t an independent source.
– claims against employers: if an employee sues an employer for personal injuries, the employee might have gotten benefits from a fund that the employer made payments to [employer sponsored health and welfare plan]. Then the courts might reject the collateral source rule, although the majority looks to the purpose and nature of the fund plus payments, and not just the source

Question 19

Under the collateral source rule, if the United States is the defendant, what are situations to watch out for?

Answer 19

• special funds that the plaintiff contributed to such as Social Security, Civil Service Retirement Act, and Medicare are considered to be independent from the government
  – general funds that come from tax revenue such as veteran’s benefits and Medicaid are not considered to be independent from the government

Question 20

What are things that are considered to be collateral sources under the collateral source rule?

Answer 20

• wages
• sick pay
• vacation benefits
• disability income insurance
• pensions

So payments gotten by an injured party from a third-party source like insurance or government disability are not deducted from the plaintiff’s award against the defendant. They may mean a partial double recovery for the plaintiff, but the plaintiff paid for and earned those benefits, so he should gain from them and the wrongdoer should not

Question 21

How do benefits that are gratuitously given to the plaintiff work with regard to the collateral source rule?

Answer 21

• CL: collateral source rule didn’t apply to gratuitous benefits, so if a plaintiff’s doctor treated him for free, the plaintiff couldn’t recover from the defendant for the reasonable value of those services
  – modernly: most jxs do apply the collateral source rule to free benefits, so if the plaintiff got free medical treatment for his injuries, that doesn’t reduce the defendant’s obligation to pay damages. Plaintiff recovers the reasonable value of the services actually provided, and the defendant cannot introduce evidence that the benefit was given for free

Question 22

How do discounted billings work with regard to the collateral source rule?

Answer 22

The defendant cannot introduce evidence that the plaintiff paid less than what he was billed, although there is a split in the courts about this

Question 23

Is it possible to admit a collateral source for a reason other than showing that the plaintiff has already received some recovery?

Answer 23

Yes, it can be admitted for reasons besides establishing the plaintiff’s actual loss:

• to rebut the plaintiff’s testimony that he was compelled by financial necessity to go back to work prematurely
• to forgo additional medical care
• to show the plaintiff had attributed his condition to some other causes like sickness
• to impeach the plaintiff’s testimony that he had paid his medical expenses himself
• to show that the plaintiff had actually continued to work instead of being out of work like he said

Question 24

Is it possible for the plaintiff to recover from the defendant for his injuries but never use the money to solve the problem?

Answer 24

Yes