(2) Tort Damages Concepts

What are damages?

An award of money to an aggrieved party to compensate for loss or injury.

What is the objective of damages in tort cases?

To make the plaintiff whole by awarding sufficient money to indemnify the plaintiff for the loss.

What are the four types of damages in tort cases?

General damages, special damages, punitive damages, and nominal damages.

What are general damages?

Damages that the law presumes flow from a tort.

Must a plaintiff specifically plead general damages?

No.

Why need general damages not be specifically pleaded?

Because the law presumes they naturally flow from the tort.

What must you know for each tort regarding general damages?

The specific measure of general damages applicable to that tort.

What is the measure of general damages for conversion?

The fair market value of the property at the time and place of conversion plus prejudgment interest.

In the outline's conversion example, what are the general damages if a watch worth $100 is converted?

$100 plus prejudgment interest.

What are special damages?

Damages unique to the plaintiff that must be specifically pleaded.

Why must special damages be specifically pleaded?

So the defendant has notice and can prepare a defense.

What is an example of special damages in a tort case?

Lost profits.

What are the requirements for recovering special damages?

The damages must be proven with reasonable certainty and must satisfy proximate cause.

What degree of certainty is required for special damages?

Reasonable certainty.

May special damages be speculative?

No.

What tort doctrine limits recovery of special damages?

Proximate cause.

What are punitive damages?

Damages awarded to punish the defendant and deter similar misconduct.

When are punitive damages available?

When the defendant is guilty of malicious and willful misconduct.

What are the purposes of punitive damages?

To punish the defendant and set an example for others.

Are punitive damages usually available in contract cases?

No.

What are nominal damages?

A small monetary award recognizing the plaintiff's legal rights despite little or no actual loss.

In what types of tort cases are nominal damages commonly awarded?

Intentional tort cases.

What is prejudgment interest?

Interest awarded from the time the cause of action arose until the date judgment is entered.

What is the purpose of prejudgment interest?

To compensate the plaintiff for the withholding of money.

When do courts generally favor prejudgment interest?

When the amount of damages is liquidated.

What are liquidated damages for purposes of prejudgment interest?

Damages whose amount is fixed or readily ascertainable.

What is postjudgment interest?

Interest that accrues after judgment is entered until the judgment is paid.

What is the purpose of postjudgment interest?

To compensate the plaintiff for delay in payment after judgment.

Are attorney's fees generally recoverable?

No.

When may attorney's fees be recovered?

When authorized by statute or provided for in the parties' contract.

What is the Avoidable Consequence Rule?

The plaintiff must take reasonable steps to mitigate damages after the injury.

What does the Avoidable Consequence Rule require of a plaintiff?

Reasonable efforts to reduce or mitigate losses.

How does the Avoidable Consequence Rule differ from contributory negligence?

The Avoidable Consequence Rule concerns conduct after the injury that affects damages, while contributory negligence concerns conduct contributing to the initial injury.

When does contributory negligence occur?

Before or during the events causing the original injury.

When does the Avoidable Consequence Rule apply?

After the injury has occurred.

Does the Avoidable Consequence Rule apply in both tort and contract cases?

Yes.

What is the Collateral Source Rule?

Compensation received by the plaintiff from a source independent of the defendant does not reduce the defendant's liability.

What is a collateral source?

A source independent of the defendant, such as insurance.

Does insurance received by the plaintiff reduce the defendant's liability under the Collateral Source Rule?

No.

In what type of cases does the Collateral Source Rule apply according to the outline?

Tort cases.

In the outline's example, does the defendant receive a credit because the plaintiff's health insurance paid the medical bills?

No.

Why does the Collateral Source Rule prevent reducing the defendant's liability?

Because payments from independent sources do not benefit the defendant.

Testable Issue: What is the difference between general and special damages?

General damages are presumed by law and need not be pleaded, while special damages are unique to the plaintiff and must be specifically pleaded.

Testable Issue: What are the requirements for recovering special damages?

They must be proven with reasonable certainty and be proximately caused by the defendant's tort.

Testable Issue: What is the difference between punitive and compensatory damages?

Compensatory damages make the plaintiff whole, while punitive damages punish the defendant for malicious and willful misconduct.

Testable Issue: What is the difference between the Avoidable Consequence Rule and contributory negligence?

The Avoidable Consequence Rule concerns the plaintiff's failure to mitigate after the injury, while contributory negligence concerns the plaintiff's conduct contributing to the initial injury.

Testable Issue: What effect does insurance have under the Collateral Source Rule?

None. Payments from an independent source do not reduce the defendant's liability.

Essay Rule: How should you analyze damages in a tort case?

Identify the appropriate measure of general damages for the tort, determine whether any special damages have been properly pleaded and proven with reasonable certainty, consider whether punitive or nominal damages are available, determine whether prejudgment or postjudgment interest applies, evaluate mitigation under the Avoidable Consequence Rule, and apply the Collateral Source Rule where appropriate.

Essay Rule: How should you analyze whether damages should be reduced?

Determine whether the plaintiff failed to mitigate damages after the injury under the Avoidable Consequence Rule, distinguish that issue from contributory negligence, and remember that payments from collateral sources generally do not reduce the defendant's recovery.

Master Synthesis: What are the four categories of tort damages?

General damages compensate losses presumed by law, special damages compensate unique proven losses, punitive damages punish malicious and willful misconduct, and nominal damages recognize legal rights despite minimal actual loss.

Master Synthesis: What are the principal doctrines affecting the amount of tort damages?

Prejudgment and postjudgment interest, attorney's fees, the Avoidable Consequence Rule requiring mitigation, and the Collateral Source Rule preventing reduction of damages because of payments from independent sources.