Damages

Compensatory damages

1)      goal is to determine reasonable amount, in one lump sum, to make P whole – identify any suffering/pain and costs of past and probable future care resulting from loss and harm suffered as a result of D’s tortious conduct.

a)      maximum recovery rule: judge should determine whether the verdict of the jury verdict exceeds max amount the jury could reasonably find and if so reduce that amount to the max amount it could reasonably have found.

i)       preserves jury role and protects Ds from unfairness.

ii)     Requires court to scrutinize all evidence to each damages element and determine what amount would be maximum jury could reasonably have awarded.         

Calculating compensatory damages:

i)       Special/economic damages: lost earnings and medical/other expenses – objectively measurable, usually form the basis for evaluation of value of case to attorney (“how much are the specials?”).

ii)     General/non-economic damages: pain, suffering, emotion distress.

iii)   Using a differential between future growth and interest rates is reasonable bc prevents making estimations of future growth and inflation rates.

(1)   Discounting of future losses: use of actuary tables to compute how much to award now such that, if lump sum were to be invested safely at a given interest rate, it would result in the P receiving the exact amount of what P would have reasonably earned/need to spend for future medical expenses.

(2)   Inflation and damages: actuary determination of future expenses needs to also account for inflation and does, in different ways, in many jx.

(3)   Federal Tax on damages: 

(a)   P’s award for personal injuries NOT taxed by feds – so awards may be further reduced to account for what WOULD have been taxed.

(b)   Punitive damages ARE taxed.

iv)   Courts may consider permanency of P’s condition, possible future deterioration, extent of P’s medical expenses, and restrictions on P for the injuries. (Richardson v Chapman)

Elements of compensatory damages

i)       past physical and mental pain

ii)     future physical and mental pain

iii)   future medical expenses

iv)   Permanent disability and disfigurement

v)      Loss of enjoyment of life

vi)   Verdict not excessive bc the max value of all elements together was greater than the amount the jury chose to award.

Interest on plaintiff awards

i)       Post-judgment interest: incentivizes prompt payment of award by D – interest paid to P while awaiting full payment.

ii)     Pre-judgment interest: payment from time P was injured until judgment, meant to replace losses from interest that P may have received in that time if not paying expenses related to loss.

(1)   Minority rule: only available for pecuniary damages.

Many jx: available for both special and general damages

Collateral source rule

a)      ct must exclude evidence of payments received by an injured party from sources collateral to the wrongdoer, such as private insurance or govt benefits.

i)       If D did not have anything to do with procuring collateral benefit for the P, then collateral source rule can apply – unless the P waives the rule by disclosing it for some reason at trial.

ii)     It is the tortfeasor’s responsibility to compensate for all harm that he causes – we are not concerned about net loss/gain to injured party.

Loss of consortium

a)      allowed in most jx,

i)       claim by spouse of injured person for loss of conjugal relations, society, companionship, household services, etc

ii)     covers time-period injured person is recovering or for permanent loss.

iii)   Derivative of injured person’s, in most jx MUST be joined to original party’s claim/COA of original party.

Damages to property

a)      Conversion/destruction: value of the property at time/place of tort.

b)      Damages: cost is difference in value between before and after.

c)      Deprivation of use: value of use of which P was deprived.

d)      Use market value, of place and time where the wrong occurred.

e)      For pets: somewhat similar to compensatory damages (vet bills, training, pecuniary/breeding value, etc) – even if exceeds fair market value.

f)       Most jx: no emotional distress or consortium damages for pets.

g)      Damages for repair costs generally cannot exceed value before damage.

Nominal damages

a)      Small sums awarded to Ps to vindicate rights

b)      make judgment available as a matter of record

c)      prevent D from acquiring prescriptive rights and

d)      serve as basis for punitive damages.

e)      Not available for all torts – trespass to chattels, for example.

Punitive Damages

a)      Punitive damages are about the behavior of the D, not the P – Punish the D and make a deterrent example to prevent future tortious conduct.

b)     Factors suggestive of punitive damages: Degree of reprehensibility, nature of harm (physical vs economic), indifference, reckless disregard, targeting of vulnerable, repeated actions, malice, trickery, deceit.

c)      Gore factors to gross excessiveness of punitive damages:

i)       (1) the degree of D’s reprehensibility (acted with malice, willfully and wantonly, etc.).

ii)     (2) disparity between actual or potential harm by P and punitive damages (ratio punitive: compensatory( single digit is appropriate).

iii)   (3) difference between punitive damages awarded by the jury and civil penalties in comparable cases.

d)      Most pun damages not in excess of a single digit harm/potential harm will satisfy due process – 4:1 is sweet spot.

e)      Award must be based on facts and circumstances. If comp damages are very large, pun damages should probably do no more than equal them.