NEGLIGENCE: DAMAGES

Compensatory Damages

1. Actual (Compensatory) Damages

2. Mitigation of Damages

3. Personal Injury—Categories of Compensatory Damages

4. Property Damage

5. Collateral-Source Rule

Actual (Compensatory) Damages

o Purpose is to make the plaintiff whole again

o Can include costs of physical injuries and also emotional damages (i.e., “parasitic damages”)

Mitigation of Damages

o Plaintiff must take reasonable steps to mitigate damages

o Can be considered a duty, but it’s more of a limitation on recovery

Personal Injury—Categories of Compensatory Damages

o Medical expenses, both past and future

o Lost income and reduced earning capacity

o Pain and suffering, both past and future

Property Damage

o Generally, plaintiff may recover the difference in the market value of the property before and after the injury

o May allow cost of repair or replacement value as an alternative measure of damages

Collateral-Source Rule

a. Traditional rule

• Benefits or payments to the plaintiff from outside sources are not credited against the liability of any tortfeasor.

Note 10: Typical insurance plans include a provision that any amounts recovered to the plaintiff would first reimburse the insurance company for payments made to cover the plaintiff’s expenses

• Evidence of such payments is not admissible at trial.

b. Modern trend

• Most states have passed statutes that eliminate or substantially modify the collateral source rule to avoid double recovery.

Punitive Damages

• Purpose is to punish and deter future conduct

• May be available if the defendant acted willfully, wantonly, recklessly, or with malice, or if an inherently malicious tort is involved

• Availability may be limited by statute

• The U.S. Supreme Court has held that as a matter of due process punitive damages must be within a single-digit ratio of any compensatory damages.