The plaintiff in a negligence action must suffer actual harm or loss to person or property. Damages are monetary payments awarded for a legally

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1 Chapter 16

2 The plaintiff in a negligence action must suffer actual harm or loss to person or property. Damages are monetary payments awarded for a legally recognized wrong. Damages are a legal remedy, unlike an injunction, for example, which is an equitable remedy. 3 main types compensatory, nominal & punitive

3 Compensatory: monetary payments awarded to make the plaintiff whole, to compensate him or her for the actual loss suffered. Nominal: small monetary payment (often $1) awarded when the defendant has committed a tort that has resulted in little or no harm so that no compensatory damages are due. Punitive: noncompensatory damages that seek to punish the defendant and to deter similar conduct by others.

4 By the time a trial ends, the court will want to reach one number to cover all past and future damages in what is called a lump sum judgment. Structured settlement: consists of periodic payments for a designated period of time such as the life of the victim. Whenever you are entitled to a payment now to cover something that will happen in the future, payment must be reduced to present value..

5 Background: O Shea was a cook on a towboat. After falling and breaking her leg getting off the boat, she sued her employer, Riverway, for negligently causing the fall. Issue: Can O Shea, by reasonable diligence find gainful employment, given the physical condition in which the accident left her. the object of discounting lost future wages to present value is to give the plaintiff an amount of money which will grow to a sum equal to those wages.

6 Unlike many other damage items in a personal injury case, notably pain and suffering, the calculation of damages for lost earnings can and should be an analytical rather than an intuitive undertaking. In this case, although the figure reached by the judge was not unreasonably high he made no attempt to explain his calculations. In the future, we ask the district judges in this circuit to indicate the steps by which they arrive at damage awards for lost future earnings.

7 Pain is often experienced when a tort is committed, at the time of medical treatment, and while recovering. For example. Fright Humiliation Fear and anxiety Loss of companionship Unhappiness Depression or other forms of mental illness

8 The amount recovered for pain and suffering will depend on the amount of time it was experienced and the intensity of the experience. Damages for pain and suffering are controversial. Hedonic damages: are compensatory damages that cover the victim s loss of pleasure or enjoyment for life s activities such as raising children, experiencing the morning sun, reading a good book, and attending college.

9 Often a law office will use computer programs to help it calculate the damages that it will request. Can be used to Convert future losses to present value Calculate life expectancy Calculate work life expectancy Estimate average earnings for specific categories of work

10 Property destroyed: the measure of damages is the fair market value of the property at the time of the destruction. Property damaged but not destroyed: the measure of damages is the difference between the fair market value of the property before the damage was done and its fair market value after the damage was done. Deprivation of the use of the property: the measure of damages is the fair market value of the use of the property during the time the plaintiff was wrongfully deprived of its use. Fair market value: what the property could probably have been sold for in the ordinary course of a voluntary sale by a willing seller to a willing buyer.

11 Once plaintiffs have been injured, they must take reasonable steps to mitigate the consequences of their original injury. This doctrine of avoidable consequences refers to unreasonable conduct by the plaintiff after the defendant has wronged the plaintiff. What if a plaintiff fails to obtain medical help after being injured by the defendant? The defendant will only be liable for the initial injury, NOT for the aggravation of that injury if the failure to seek medical help was unreasonable under the circumstances.

12 Background: the plaintiff sued her oral surgeon for injuries resulting from a tooth extraction. The trial court found for the plaintiff, awarding her $20K. Of this amount, $14, was for pain and suffering. The trial court applied the doctrine of mitigation of damages and reduced the award by the amount of the plaintiff s hospitalization expense. The trial court correctly found that the plaintiff failed to take reasonable action to lessen the damages by neglecting to fill the prescription for penicillin and by not following the defendant s postoperative instructions.

13 When a person is injured or dies, he or she often receives funds or services from a variety of sources other than the defendant: The plaintiff s own medical or life insurance Company insurance Verteran s benefits Social security Wage continuation These are all collateral sources sources to which the defendant did not contribute.

14 Joint Tortfeasors fall into two categories: 1) persons acting in concert to produce a wrong 2) persons not acting in concert whose wrongs produce a single indivisible result. the significance of being a joint tortfeasor is that each joint tortfeasor is jointly and severally liable for the entire harm suffered by the plaintiff. What does this mean? The plaintiff can sue any individual joint tortfeasor for the entire harm or can join them all to recover for the entire harm.

15 Persons who act in concert to produce the negligent or intentional wrong are joint tortfeasors, and hence are jointly and severally liable for the harm they caused while on their joint venture. There must be an express agreement or a tacit understanding that each will participate in the activity that produces the wrong.

16 Assume that two individuals, acting independently of each other, cause an accident. The two drivers acted concurrently, but they were NOT acting in concert. There was no joint venture between them since they were operating independently. Yet, each was a substantial factor in producing a harm that is indivisible. When two persons cause an indivisible harm, they are jointly and severally liable for the harm even though they were not acting in concert.

17 Satisfaction is the receipt of full payment or compensation by the plaintiff. if the satisfaction has been received from one joint tortfeasor, the others can no longer be sued by the plaintiff. A release, on the other hand, is the giving up of a claim. What happens if the plaintiff releases only one of the joint tortfeasors? In most states, the release of one joint tortfeasor automatically releases the others.

18 The right of one tortfeasor who has paid a judgment to be proportionately reimbursed by other tortfeasors who have not paid their share of the damages caused by all the tortfeasors. When contribution is allowed, the allocation is usually pro rata, or proportionate to the number of joint tortfeasors. Contribution is a battle among the tortfeasors.

19 A device whereby one party who has paid the plaintiff can force another party to reimburse him or her for the full amount paid. Unlike contribution, indemnity shifts the entire loss from the defendant who has paid onto someone else. May arise by contract, where one person agrees to idemnify the other for any loss that results if the latter is sued.

20 THE END!!!

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