Damages

Seite 1

5th Element of Negligence- Damages

There are three broad categories that may be awarded in torts:

Nominal - a trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages.

Compensatory - the damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him.

Punitive - damages other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.

The cause of action for some intentional torts - battery, assault, false imprisonment, and trespass to land is complete without proof of actual damages.

The basic theory behind compensatory damages in tort cases is restoration of the plaintiff to his or her pre-injury condition, to the extent that the award of money can do that.

In causes of action based on negligence and strict liability, the plaintiff MUST prove compensatory damages as a part of the prima facie case.

There are three main types of compensatory damages in personal injury cases.

Medical and related expenses (past and future) AKA SPECIAL, PECUNIARY, ECONOMIC;

Loss of earning capacity (past and future) AKA SPECIAL, PECUNIARY, ECONOMIC; and

Physical and mental pain and suffering (past and future) AKA GENERAL, NONPECUNIARY, NONECONOMIC.

In general jury instructions there is no definite standard or method of calculation prescribed by law by which to fix reasonable compensation for pain and suffering.

Rodriguez v. McDonnell Douglas Corp.

Facts:

P was involved in a workplace injury where through the negligence of a contractor and a subcontractor he was struck with a pipe in the back of his body.

On appeal, appellants argued that the award suggested that the jury acted on passion and prejudice.

Dicta:

8 doctors testified as to the extent of Mr. Rodriguez's injuries.

He is a triplegic as a result of the injuries, and has lost all bladder, sexual, and bowel functions in his lower body.

The fact that the size of an award may set a precedent is irrelevant.

An appellate court in reviewing damages, must determine every conflict in the evidence in respondent's favor and give him the benefit of every reasonable inference.

Test for loss of wages is not what a person would have earned but what he could have earned.

REDUCING AWARDS - if the trial or appellate court believes that the award is excessive, they can do one of three things:

Grant a new trial on all issues;

Grant a new trial on the damages only;

Order a remittur - whereby a partial or completely new trial is ordered unless the plaintiff agrees to remit a specified amount of the award.

If a court grants a remittur a plaintiff is under considerable pressure to accept, even if the plaintiff thinks that the amount left after the remittur is too low, because if the plaintiff faces a new trial or appeal before a court that has already expressed what they think the maximum award should be.

Damages