Damages: Compensatory, Harm 2 Prop, Punitive, Wrongful Death, Survival, & Unborn

Types of Damages

  1. Issues in All Damages
    1. If Liab.
    2. How Much Liab.
  2. Three Basic Types of Damages
    1. Nominal
      1. Not worthwhile 2 bring suit b/c atty fees higher unless want something beyond $
    2. Compensatory
      1. Most imp. type & most linked 2 goals of tort
      2. Compensate person harmed by financial equiv. of loss suffered
      3. Jury dec's the worth & problematic in dec'ing it
    3. Punitive
      1. Makean ex. by deterring so most linked 2 goals of crim law

Compensatory Damage

  1. Anderson v. Sears, Roebuck & Co
    1. Elements
      1. Past phys. pain
      2. Future phys. pain
      3. Past med. expenses
      4. Future med. expenses
      5. Loss of earning capacity (past & future)
      6. Perm. disability & disfigurement
    2. Arg's of Ins.
      1. Gen'ly people not pay extra 2 cover 4 accident & harm
      2. Quest. on whether soc. should pay 4 what indiv. not pay
    3. Spec. v. Gen. Damages
    4. Econ v. Nonecon Damages
      1. CA has joint & sev 4 econ. damages but not 4 nonecon
    5. Prob's of Valuation
      1. Prob. on med, lost earning, & extra prob on future losses
      2. Gen'ly get lump sum now 4 future losses but that's greater value than future b/c of inflation so need 2 reduce value 2 present value
      3. Some ct. take future inflation into acct & others don't
      4. Future pain & suffering 2 hard so not reduced
  2. Collateral Source Rule (Helfend v. S CA Rapid Transit Dist)
    1. Rule
      1. P compensated by indep. collateral source like ins co, pension, / cont. wages from empl. 4 which P actually / constructively paid, not deducted from what P can collect from D
    2. Policy of Collateral Source Rule
      1. P & / ins. co. would B harmed b/c paid out of own pocket w/o the rule
      2. Wouldn't have incentive 2 buy ins. if no collateral source rule
    3. No Double Recov.
      1. Most ins. policies have subrogation
      2. Wasteful but ins. won't go up
      3. W/O subrogation, occasional double recov. but theory that takes care of atty fee
  3. Atty Fees
    1. US
      1. Not get atty fee unless specif. statute / rare cases b/c work on contingency fee where get % of P's recov.
      2. Allows those who can't afford atty 2 get rep
      3. Bad b/c P gets little & atty's econ. int. low so in conflict w/P's int.
      4. Encourages nuisance suits 4 settlement
    2. Eng.
      1. Losers pay but have subst. sys of legal aid
      2. Discourages frivolous suits
  4. Avoidable Conseq's / Mitigating Rule
    1. Obj. Stand. of Rsbl Person
      1. If rsbl cond. by P after D's tortious cond. can mitigate, then should do it
      2. Not force P 2 do it but would lwr jgmt
      3. Arises in perm. damages where more damages than what P could've done
      4. Prob. w/obj. stand's b/c rt. 2 choose what 2 do w/yourself & might make $ from full compensation by obj. stand.

Phys. Harm 2 Prop.

  1. Valuation Prob.
    1. Conversion
      1. Get the whole thing / mkt value @ the X of conversion
    2. Prob's in Computation
      1. Value of dif. of thing before damage & after excl'ing the cost of repair 4 damage
      2. Cost of repair can B evid. but not damage
      3. Unfair b/c not put back & effort & aggravation not incl'ed
    3. Other Amt. Recov'able
      1. Loss of use by rental alue
      2. Consequential damages proximately caused by neg. of D's tortious behav.
        1. Loss of barg.
        2. Rsbl expense 2 recov. poss'n of prop.

Punitive Damages

  1. Goals
    1. Similar 2 Crim
      1. Deter, punish, & divert P's desire 2 punish
      2. Substitute 4 atty's fee
      3. Petty cases of outrage & oppression
  2. Gryc v. Dayton-Hudson Corp (4 yr. old wearing p.j. & burned)
    1. Mfgr's Behav.
      1. Knew it was flammable, failed 2 warn, & knew of other material that wasn't flammable
    2. Factors of Rsbl Behav. 4 Mfgr
      1. No real econ. burden
      2. Risk high & can B lwr'ed @ low cost
      3. Fed. stand. is min. & relev. but not rsbl stand. b/c floor not ceiling, lobbied 4 it, & no enforcement agencies
    3. Additional Factors 4 Punitive Damages
      1. Intentional cond's
      2. Wilful, wanton, maliciou / reckless disregard 4 P's rts
    4. Quest. on Constructive Notice 4 Punitive Damages
      1. Hard 2 imply wilfulness
  3. Amt of Punitive Damages
    1. Factors
      1. Character of act
      2. D's wealth
        1. Dang. 2 use this b/c unfair, juror bias so more neg. 4 compensatory even if not punitive, & redist. wealth
      3. P's harm
    2. CA Civil Code's Soln 4 D's Wealth Reqt
      1. Req. oppression, fraud / malice & tell jury only when D misbehav.
      2. Malice where consc. disregard of rts / safety, intended 2 cause injury / engage in despicable cond. w/wilful & consc. disregard of rts & safety of others
      3. Need clear & convincing evid.
      4. D may also get protective order 2 prove prima facie liab. before wealth evid. intro'ed
    3. Money
      1. Gen'ly end up 2 P's
      2. Some put in state fund but if all go 2 state fund, no incentive 4 cases so gen'ly part goes 2 state fund if in such jxn
    4. Intro. of Crim. Record 2 Mitigate Tort Punish.
      1. Gen'ly not intro. b/c jury may take that into acct 4 future damages & give P more
  4. Mass Tort Prob's
    1. No $ b/c compensatory could deplete & deter b/c mass tort + reputation & litig. costs is a lot
    2. Hard 2 Do 1 & Punish. on Wrong People
    3. No soln b/c case by case not helpful although class axn done
  5. Const'al Quest. of Punitive Damages (Pacific Mutual Life Ins. Co. v. Haslip)
    1. If 2 High, Violation of Due Process
      1. Ct. didn't dec. in cases but said if not same proced. safeguards, then may violate
      2. States cut back so not have 2 worry about that
    2. No Const'al Rt. 2 Punitive Damages
  6. Price v. Hartford Accident & Indemnity Co. (D's ins. co. refused 2 indemnify)
    1. Arg's Against Ins. of Punitive Damages
      1. K illegal
      2. If ins, not punishing wrongdoer so no pt. of punitive damages
      3. Burden on others insured
    2. Ct's Rsns 4 Ins. of Punitive Damages
      1. Crim. penalties
      2. Ins. rate 4 punished raised
      3. Ins. prom'ed 2 pay so must b/c valid K
      4. Gen. deter b/c not everybody has all that ins.
    3. Can't Ins. Against Punitive v. Shouldn't Get Off
      1. Many jxn's can't insure b/c punitive damages lie w/wrongdoers & some not allow wilful acts 4 compensatory damages
      2. But P's lose b/c D not have $
      3. Gen'ly ins. has 2 defend even if can't B insured

Wrongful Death

  1. C/L v. Today
    1. C/L No Recov.
      1. B/c felonies were hanged
      2. Immoral arg. of discomfort on putting value on life
    2. Today Recov.
      1. Allow 4 damages suffered by survivors not deceased
      2. Factors 4 allowing recov.
        1. Value of serv's
        2. Loss of soc. & companionship
        3. Funeral expenses
      3. Damage Evaluation
        1. Damages 2 P's own loss not deceased
        2. Money deceased would've made while alive
        3. Lots allow companionship b/c more honest & few allow 4 grief
      4. Costs more 2 kill young Dr than old bum b/c in accord w/what P lost not fairness
  2. Statutes 4 Bringing Claims
    1. Gen'ly Those That Can Bring Claims
      1. Spouse & heirs, & rep's/exec'ors
      2. Illegit kids barred but violate = protection w/mom but not dad b/c of biology in 60's
  3. Prob's of Who & How Much Recov.
    1. Hard 2 Det. $ When Kid Dies
  4. Selders v. Armentrout
    1. Kid's Death
      1. Econ'ly, lwr expenses w/o kid so prob.
    2. Use Loss of Soc., Comfort, & Companionship Approach
      1. Prob. b/c no clear boundary w/o quantification / stand's 4 jury
      2. Spouses can get companionship b/c of sexual rel.
  5. Decedent's Creditors Can't Reach B/C Heirs' C/A
  6. Defenses
    1. Decedent's behav. matters
    2. Benef's cond. also matters as defense


  1. C/L v. Today
    1. C/L Not Allowed PI Axn W/Death of D / P
    2. Today Axn's Survive Death of Either D / P
  2. Dif. From Wrongful Death
    1. Gets damages 4 decedent not 4 P's loss
  3. Damages
    1. Factors
      1. Loss of earning
      2. Med expenses while alive
      3. Prop. damages
      4. Pain & suffering
      5. By old rule, couldn't recov. 4 damages causing death but not now
    2. Old Rule Overruled
      1. Weird 2 not allow recov. b/c lingered before dying
    3. Allow Pain & Suffering
      1. Encourage settlement
      2. Unfair
      3. Deter tortfeasor
      4. Relatives suffer in seeing someone in pain
  4. Prob. of Double Recov.
    1. Wrongful death 4 loss of support & survival 4 loss of earning overlaps subst'ly
  5. Creditors Can Reach B/C Survival Estate's Assets Dist'ed by Testacy & Intestacy Law
  6. Defenses
    1. Contrib. neg. & assumption of risk survives
    2. Decedent's behav. matters
    3. Benefic. cond's irrelev.

Unborn Children

  1. Wrongful Death
    1. Line @ Birth (Endresz v. Friedberg)
      1. If not born, then not a person so no real decedent so can't recov. 4 wrongful death
      2. Arb. line but need it
    2. Possibility of Other Lines
      1. Viability where ability 2 survive outside of womb
      2. Conception when child conceived but could've miscarried & dissonant w/abortion
    3. All Div'ing Lines Have Prob's So Unavoidable Unfairness
      1. Split of auth. on this issue
  2. Wrongful Life (Procanik by Procanik v. Cillo--German measles)
    1. Axn Brought By Child
    2. Theoretical Prob. of Axn
      1. If Dr. wasn't neg., then not born @ all so can't really see wrong in bad life v. no life
      2. No damages in theory b/c got higher benefit
    3. Maj. in Case
      1. Being practical & allow extraord. med. cost but no pain, childhood loss b/c can't figure pain against no life
      2. Take impaired life out of the equation
  3. Wrongful Birth (Procanik by Procanik v. Cillo--German measles)
    1. Axn By Parents
    2. Choice 2 Term. Deprived As Rsn 4 Claim
      1. Mom must say would've term'ed otherwise no cause
    3. Benefit of Child v. Burden of Choice 2 Term.
      1. Concern that benefit of kid outweighs so no damages if there's benefit
      2. Ct. reluctant 2 say impaired child is bad so those that allow permit only extraord. cost of raising the child w/o emotional damages
      3. Those jxn's w/C/A burdens dr's & ins. co. gen'ly
    4. Rsns 4 Not Recog'ing C/A
      1. Stigmatize the kid
      2. Contingency value of loss
      3. Rt 2 die
    5. No Prob. if No Abortion B/C No Choice
  4. Smith v. Cote
    1. No C/a b/c Not Want 2 Stigmatize the Child
  5. Sterilization
    1. If wanted sterility b/c can't afford 2 raise kid, then recov. but if other rsns, can't
    2. Don't want Dr's 2 pay 4 child in neg. sterilization

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