Damages

Recoverable Elements of Damages
1. Damages are always compensatory
2. P can recover for future consequences of an injury if he proves that they are “reasonably probable”, but an award cannot be based on mere conjecture or speculation
  1. P must be able to prove that an injury will keep him from working
  2. Three Usual Components of Compensatory Damages
  3. Medical Expenses: P is entitled to compensation for all medical costs of diagnosing and treating the injuries resulting from the tort, past and future. MUST prove they are reasonably probably, only get one recovery
  4. Lost Earnings and Earning Capacity: Past income losses due to injury are recoverable, and lost future earning potential is also recoverable
  5. Pain and Suffering: Includes physical pain from the impact of an accident, but it also includes on-going pain from a wound, or a long term discomfort from a permanent condition. It also includes the pain of medical procedures to treat the injuries. Also includes many other types of mental suffering such as humiliation, anguish, embarrassment, fright associated with traumatic accident etc. Thus, pain and suffering is a catch all term that can encompass almost any kind of subjective reaction to the accident or its consequences.
    1. Highly subjective, and jury must simply pick a number based on the sense of severity of the loss the P has suffered
      1. Loss of Enjoyment of Life: Not being able to do the things you love anymore; included in Pain and Suffering calculation, one award McDougald v. Garber
3. If P Dies, 2 Actions May be Brought:
  1. Survival Action: P’s continuance of his action, typically contains all out-of-pocket expenses up to P’s death (goes to his estate)
  2. Wrongful death: Family’s action, usually close relatives. Usually in terms of financial support that P would have provided (negated if either P or decedent were contributory negligent)
    1. **In order to have full deterrence, you need both
4. Damages that are recoverable
  1. Property Damages: When property is damaged:
    1. Loss of value of the property, or the cost to repair, whichever is less
    2. Lost profits from property
    3. NO PAIN AND SUFFERING FOR PROPERTY DAMAGE (some courts allow exceptions for pets)
  2. Personal Injury (Special Damages)
    1. “Special”, or “out-of-pocket” losses: medical bills, lost earnings, lost earning capacity
    2. “General” Damages for non-economic losses, often referred to as pain and suffering: physical and emotional suffering, disfigurement, loss of life’s enjoyments, or other similar losses
    3. ONLY can recover for future risks that are more probable than not likely to happen
    4. Loss of consortium: possible action by family members for other family members that were victims of a tort. Probably nothing more, remember FRAUD

Economists disagree on how to calculate damages
1. **When determining compensatory damages, just make the argument for why it is compensatory
2. Discount Rate= (real interest rate+inflation)
  1. A lot of economists say that inflation rate should drop out, and discount rate should just be the real interest rate
    1. Tort awards are not taxable
3. Another strategy adjusts the lost wages figure every year reflecting the decreasing probability that she will be in the work force
  1. Much more accurate damage measure
    1. Not doing this tends to over compensate
Courts have three theories for recover for increased risk of future injury:
1. P can recover 100% when it is more probably than not a future harm will occur
2. If less than more probably than not future harm will occur, courts allow recovery probabilistically (i.e. 10%)
3. Impossible to prove future harm, P is trying to recover pain and suffering that came with having to worry abut possibly getting the disease
  1. Courts usually allow recovery for reasonable fear
  2. However, P CANNOT recover is the only “injury” is exposure to a future harm
Most courts DO allow for decrease in life expectancy
O’Shea v. Riverway Towing (p.854): P was coming off duty as a cook on a towboat, as she was getting off a harbor boat taking her to shore, she slipped and fell and sued.
1. Big question is damages
  1. Major holding of the case is the measure of damages for lost wages is not backward looking it is forward looking, based on your earning capacity
2. D argues that P should find a new job and they will compensate for the difference
  1. Court said in order for this to be true, she would...

#11383 - Damages - Long Torts Outline

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