Damages Outline

Damages

1. Thin-Skull / Thin-Hull

   1. Rule

      1. Even if the extent of harm was unforeseeable, if Δ is otherwise liable:

         1. American / Pre-Wagon Mound English Rule: Δ responsible for all derivative damages (“thin-hull rule”)(Polemis).

         2. Post-Wagon Mound English Rule: Δ only responsible for the derivative damage that was foreseeable, even if unforeseeable damages were direct (Wagon Mound).

            1. Both countries still use thin-skull rule for bodily damages (Vosberg).

   2. Analysis

      1. The U.S. is consistent in assessing property and bodily damages; if some harm was foreseeable, Δ is responsible for the foreseeable type of harm that results.

      2. The U.K. differentiates between unforeseeable bodily damages (Δ liable for all) and property damages (Δ liable only for foreseeable ones).

   3. Cases

      1. Vosberg v. Putney (Wis. 1891, 4): Δ who intended to lightly kick Π during class and whose kick caused Π’s leg to fall off liable for all damages that resulted from battery.

      2. In re Polemis & Furness, Withy & Co. (Eng. 1921, 515): Δ knocked down board, which caused fire and sank ship; since Δ could foresee that some harm would result, Δ liable for entire damage.

         1. Note: this is taken more as a “directness” standard than a “foreseeability” standard and was overruled in England by Wagon Mound.

      3. Petition of Kinsman Transit Co. (2d. Cir 1964): Δ liable for ship driving and creating dam since Δ would be liable for just the harm of negligent tying of ship.

      4. Squibs

         1. Smith v. Brian Leech & Co. (Eng. 1962): despite Wagon Mound, Δ liable for splashing molten liquid on Π, causing cancer.

         2. Steinhauser v. Hertz Corp. (2d. Cir 1970): Δ may be liable for hitting Π, triggering schizophrenia.

2. Derivative / “Parasitic” Losses

   1. Derivative losses include:

      1. economic losses:

         1. medical expenses;

         2. past lost wages;

         3. lost future earning capacity;

            1. note: this is capacity, and is therefore subjective;

         4. custodial care;

         5. incidental economic consequences;

         6. property damage.

      2. non-economic losses:

         1. pain and suffering;

            1. only with cognitive awareness (McDougald); covers:

               1. loss of enjoyment of the pleasures of life;

               2. emotional distress;;

         2. wrongful death;

            1. only by statute; attempts to put beneficiaries, “heirs at law,” in as good a place as they would have been had victim survived;

               1. covers hospital bills, emotional damages, support for beneficiaries, etc.;

               2. reducible if Π or beneficiary was negligent;

         3. survival of action;

            1. attempts to put victim’s estate in as good of a position as if the victim had died a natural death;

            2. covers victim’s medical bills as damages, plus gross future earnings minus expenditures, including for family;

               1. note: Πs are compensated for loss of enjoyment if they die, but not if they are unconscious;

         4. loss of consortium.

      3. other cognizable damages:

         1. wrongful conception;

            1. note: R.I. allows men to receive loss of consortium for this;

         2. wrongful birth;

         3. wrongful life;

            1. only two states allow this: N.J. and Cal.;

         4. wrongful adoption.

   2. Damages may be assessed or lowered via:

      1. a per-diem rule that can be given to the jury as an oral argument (Vanskike v. ACF Industries (8th Cir. 1981)).

      2. a “shock the conscience” standard for when the verdict is way too high;

      3. remittitur, which gives Π option to (a) accept lower damages or (b) accept a new trial;

      4. additur, which gives Δ the same above options but for higher damages;

      5. structured settlements that pay in installments;

      6. statutory caps on non-economic damages (as in California).

   1. Analysis

      1. Derivative Losses

         1. Margaret Radin notes that there are two views of understanding damages:

            1. the commodified conception understands damages as economically requiring the Δ to pay the “costs” Δ has forced Π to pay with its tort; makes victim “whole”;

            2. the noncommodified conception understands damages as a vindication of Π’s rights; compensates the victim for capabilities or advantages that the victim lacks.

            3. a mixed conception might penalize Δs for their harm while compensating Π for however much they need for a dignified life.

         2. Martha Chamallas notes that because courts often use statistical tables to assess black or female victims’ lost future earnings differentially, the tort regime perpetuates status quo racial and gendered injustice.

            1. She also notes a hierarchy between economic (calculable) losses and noneconomic (mushy) losses.

            2. Her proposal is to emphasize the redistributive potential of tort law, i.e. to imagine a baseline future earnings’ capacity higher than average and project that marginalized groups will meet it.

      2. Assessing Damages

         1. There is an non-deterrence problem in survival of action claims, in that there is no liability for what the victim would have spent on self or for family members victim would have supported; there is also no pain and suffering. For this reason, Δ is often better killing than maiming victim.

            1. This is somewhat compensated by the fact that insured Πs will often receive “double recovery” because their insurance will pay them and they will receive medical payments from Δ.

               1. Subrogation allows an insurance company to recover reimbursement from Δ;

               2. Note: collateral sources (insurance) of income for Π are not admissible by Δs in tort cases.

         2. The Seventh Amendment prohibits federal courts from unilaterally reducing verdicts.

   2. Cases

      1. McDougald v. Garber (N.Y. 1989, 855): Π left in coma after Δ was negligent during surgery; cognitive awareness is required for pain and suffering, because otherwise there was no suffering.

3. Pure / Direct Emotional Distress

   1. Rule

      1. If Δ did not physically contact (or intentionally harm) Π, Π may recover for own direct emotional distress for near-miss if Π was in the zone of danger (Dillon).

         1. Old Rule: Δ only liable if Π was at all contacted by Δ.

      2. If Δ had a special relationship to Π, also may be liable for emotional distress.

         1. Limited examples, such as when a funeral parlor negligently drops body (FFTL 218); see Duties, supra.

      3. If Δ gave Π a fear of potential harms, Δ may be liable for emotional...

Buy the full version of these notes or essay plans and more in our Torts Outlines.