Pg 7

Question 1

What is the question that you have to ask if you’re trying to give damages for trespass?

Answer 1

Ask if there has been an ouster or a wrongful denial of entry onto the land.
– No: the owner gets nominal damages because there was no loss and he was not deprived of use of his land
– yes: he either gets the repair value if the trespass caused damage, or the rental value for the period of the trespass

Question 2

If a defendant is hired to build a dam on land, and he needs sand from a quarry that is far away, but he sees sand on a nearby lot, so he uses a conveyor belt to take it and the conveyor belt sits on that land for three months, what happens?

Answer 2

There was a trespass, but the owner would only get nominal damages because there was no ouster since he was never wrongfully denied entry to his land

Question 3

What is the question to ask when you are giving damages for nuisance?

Answer 3

Whether it is a private nuisance or a public nuisance

Question 4

What is the extra thing you can sometimes get when you’re giving damages for nuisance?

Answer 4

Stigma damages

Question 5

What is the question to ask when you’re giving damages for a private nuisance?

Answer 5

If the nuisance can be abated
– yes: it is temporary and then the owner gets the repair value for any damage caused or the rental value for the period of the nuisance
– no: it is permanent and then the owner gets the diminution in value which is the difference between the fair value of the land before and after the injury. The reason is that the cause is fixed and the property will always remain subject to that injury

Question 6

What is the only situation that a private person can sue on a public nuisance?

Answer 6

When he has suffered damages that are different in kind to those that are suffered by the public. I.e.: if a plant creates fumes that irritate people’s eyes, that is a public nuisance and a public representative can sue on behalf of the public. But if the plaintiff lives next door and the fumes are causing the paint on his house to peel, he can sue for damages because that is different in kind from what the public suffered

Question 7

What is the standard measure with regard to personal injury?

Answer 7

• monetary damages to reflect what was lost as a result of the injury [earnings or earning potential]
• money spent or liability incurred for medical treatment
• pain and suffering accompanying the injury

Question 8

What is the focus of a personal injury remedies issue?

Answer 8

The plaintiff’s condition and not how the injury happened

Question 9

What are the three major things that a personal injury can be based on?

Answer 9

Negligence, strict liability, intentional conduct

Question 10

Does personal injury include cases of shock to bystanders that watched the tortious harm?

Answer 10

No, because distress is different from physical harm

Question 11

What are the things that are included in personal injury?

Answer 11

• physical pain and mental suffering
• loss of earnings and earning capacity
• medical expenses
• special expenses due to injury
• future losses reduced to present value
• spouses can have loss of consortium claims

Question 12

Are personal injury awards usually exempt from taxation?

Answer 12

Yes

Question 13

Why are personal injury remedies not often tested?

Answer 13

Because it is hard to measure the damages with any certainty. So if we see this on an essay, we are not usually being asked to calculate the damages, just to identify the types of damages the plaintiff can recover

Question 14

What are the major things you can recover under personal injury?

Answer 14

• pain and suffering
  – lost income
  – medical expenses
• loss of consortium

Question 15

What is pain and suffering?

Answer 15

Non-economic harms like:

• mental anguish
• distress
• agony
• discomfort
• loss of quality of life
• disfigurement from bodily injury

Question 16

If a plaintiff can show a bodily injury, what happens with pain and suffering?

Answer 16

This is recovered as a matter of course when the plaintiff shows a bodily injury. The law presumes that pain and suffering flows from the wrong, so you do not need to prove that it exists, since it is a general damage, you only have to prove its extent

Question 17

What is the difference between pain and suffering?

Answer 17

• pain: physical response to injury

– suffering: mental and emotional response to injury

Question 18

What is apprecation?

Answer 18

This is awareness of pain and suffering. It comes from the conscious and knowing experience of the pain and suffering. There is no clear majority on whether this is a requirement. Some courts do not allow coma patients to recover for pain and suffering because they say that the plaintiff is unaware of the pain and not really suffering, while others do allow it and they treat a coma patient the same as any other other plaintiff

Question 19

Who calculates the damages when it comes to pain and injury?

Answer 19

The jury

Question 20

What is one way that a jury can calculate damages for pain and suffering?

Answer 20

Per diem damages: this assigns an amount per day or per hour to compensate for the pain and then it is multiplied by an estimate of how many years the plaintiff has left

Question 21

What is the clearly excessive standard with relation to pain and suffering?

Answer 21

A pain and suffering award will be overturned on appeal if the court decides that it was clearly excessive. This is rare though because since it is hard to put a dollar amount on an injury, when the jury does do this it is usually given effect

Question 22

What is involved in loss of enjoyment of life under pain and suffering?

Answer 22

Because of the plaintiff’s injury if he loses capacity to engage in life‘s pleasures and it stops him from doing every day activities, he can recover for this. I.e.: hiking or sports. It is measured by the actual impairment, not a hypothetical good life

Question 23

What is involved in disfigurement as a sub-section of pain and suffering?

Answer 23

The plaintiff is made less complete, perfect, or beautiful in either appearance or character because of the injury. Ie: amputation, scar, limp

Question 24

What are the three categories of lost income under personal injury?

Answer 24

• lost earnings
  – lost future earnings
  – loss of earning capacity

Question 25

What is involved in lost earnings as a subset of personal injury?

Answer 25

These are the wages that the plaintiff would have earned if he wasn’t injured. Look at the salary he was getting before the injury and calculate how much he lost from being out of work or from the injury. This includes: lost wages, bonuses, pension contributions, fringe benefits, and profit sharing

Question 26

What is involved in the loss of future earnings under personal injury?

Answer 26

This compensates the plaintiff for the loss of earnings from the time of trial until a point in the future when the plaintiff will be able to return to work. These are usually calculated when the injury is not permanent.

Question 27

What is involved in the loss of earning capacity as a subset of personal injury?

Answer 27

This includes what the plaintiff could have gotten or was capable of earning if it wasn’t for the injury. This is the difference between the plaintiff's earning capacity before the injury and after the injury. He must be proven that in the near future he would earn less money than he would have if he had not been injured

Question 28

If a plaintiff was in his last year of undergrad and he was working as a salesperson making $1000 a week, but then he got hit by a negligent driver and was seriously injured, so he couldn’t work for eight weeks and then he couldn’t finish school, he would get how much money due to the loss of earning capacity under personal injury?

Answer 28

He would get $8000 in lost earnings for the eight weeks of no work and also the lost earning capacity because the injuries made him unable to finish school, so he couldn’t get a higher paying job that he would’ve gotten with a degree

Question 29

What are factors to consider under loss of earning capacity for personal injury?

Answer 29

Education, age, experience, talents, general health, physical capacity

Question 30

What is an extra thing to consider under loss of earning capacity that could get points on an essay?

Answer 30

Deduct the expenses that were avoided as a result of the injury. Something like not having to pay for law school because he was too injured

Question 31

How do you determine loss of earning capacity if the person didn’t presently have a job when they were physically injured?

Answer 31

Actual earnings are evidence of earning capacity but not conclusive. The person can still recover if he had no job because perhaps he was a student, child, retired, unemployed, or a homemaker. He just has to show that he was capable of earning, not that he was earning

Question 32

How do you calculate loss of earning capacity when you’re considering a child who has been personally injured?

Answer 32

You have to make assumptions about what he would’ve done with his life in relation to college and career

Question 33

How do you determine the loss of earning capacity for a homemaker?

Answer 33

– either the opportunity cost [the value of the job she gave up to stay home], or – replacement cost [the cost to pay someone to do the same thing]

Question 34

If an alien is subject to deportation because he’s in the States illegally, how do you determine his loss of earning capacity if he’s bringing a suit for personal injury?

Answer 34

Since he will likely be deported, his earning capacity is based on the value of his work done in his home country