A. Cognizable or Recoverable Damages

Not all harms are legally cognizable. The plaintiff must prove that his damage is cognizable. There is recovery for some emotional harm or economic harm, as long as that harm is parasitic upon concrete physical harm to body or property. There is very limited recovery for purely economic or emotional harms by plaintiffs with no concrete physical harm.

The majority rule is that the plaintiff may recover damages for pure emotional loss if she is in the zone of danger and suffered emotional distress, even if there is no actual injury and no contact.

A bystander observing another’s injury may recover damages for pure emotional distress if that plaintiff bystander is a close relative of the victim, was near to the accident, and had a contemporaneous sensory observation. (Dillon v Legg – held that a mother was allowed to recover for pure emotional loss even though she was outside the zone of danger because of the reasons above.)

This rule has since been more narrowly defined. Courts have required that the plaintiff directly observe the accident and that the plaintiff be related to the victim by blood or by marriage. (Tobin v Grossman – held that plaintiff could not recover because she did not see the accident.) (Elden v Sheldon – held that plaintiff could not recover because the relationship to the victim was that of an unmarried cohabitant.) (Thing v LaChusa – held that plaintiff could not recover because she did not witness the accident.)

a. Special Relationships (funeral parlor example)

b. Fear of Potential Harms  Very limited recovery. (Potter v Firestone – held that plaintiff could recover for infliction of emotional distress due to likely exposure to future harm, even though there was no current injury.)

Pure Economic Loss

An injured plaintiff can sue for lost wages or the economic value of property damage, but generally, an uninjured victim cannot sue for economic losses.

Pro:

1. The scope of economic loss is very difficult to predict

1. If there is no one else holding a tortfeasor accountable, courts may allow a plaintiff acting as a private attorney general to sue the defendant. (Union Oil Co. v. Oppen - held that fishermen could sue for pure economic loss when an oil spill resulted in economic damage and the state declined to sue. It’s important to note that the crucial factor was that there were no other Plaintinffs.)

2. If the economic loss is highly foreseeable, pure economic loss may be recoverable. (People Express Airlines v Consolidated Rail - held that plaintiff could sue for pure economic loss when a toxic spill forced the evacuation of offices because that economic loss was highly foreseeable.)

Wrongful Death

Wrongful death statutes allow the heirs at law of the decedent to recover for the defendant that would have been liable to the decedent. The beneficiary’s recovery is measured by the losses she suffers as a result of the decedent’s death. Damages for emotional loss are recoverable, usually in unlimited amounts. The principle that what is recovered is measured by the beneficiary’s losses makes clear that, for all practical purposes, the cause of action is the beneficiary’s and not the decedent’s.

All states have enacted statutes that preserve a cause of action for losses suffered by a decedent before he died. A number have gone further and provided for a cause of action to recover economic losses that are incurred as a result of the decedent’s death. Typically the measure of these losses is the amount that would have been in the decedent’s estate had he or she lived a full life expectancy. It is for the benefit of the decedent’s estate and any recovery passes through the estate

The US universally allows husbands and wives to sue for loss of consortium. (Second Restatement 693: liability covers resulting loss of society and services of the first spouse, including impairment of capacity for sexual intercourse and for reasonable expense incurred by second spouse in providing medical treatment.) However, unmarried cohabitants cannot recover for this type of loss.

The general rule is that the successful plaintiff is entitled to recover damages to compensate her for the losses proximately resulted from the defendant’s tortious act or omission. The successful plaintiff in a personal injury case is entitled to recover for

1. “Special” or out of pocket losses proximately resulting from the defendant’s tortious action; and

2. “General” damages for pain and suffering.

Plaintiffs can usually recover damages for the pain and suffering caused by the defendant’s actions. The main purposes of damage award for pain and suffering are to acknowledge the wrong done; provide substitute activities and enjoyments; achieve optimal deterrence; pay attorneys.

Cognitive awareness is required for damages for loss of enjoyment of life. Jury should not be instructed to consider damages for loss of enjoyment of life separately from damages for pain and suffering because non-pecuniary damages are too difficult to measure separately. (McDougald v Garber – held that there is no compensatory purpose to awarding damages to someone whose injuries preclude any awareness of the loss of enjoyment of life.)  Shug says that this is the majority rule, but it is wrongly decided. There is loss of enjoyment whether you’re aware of it or not. The court’s rationale is inconsistent with the rest of tort law.

In the ordinary case the plaintiff gets only a single recovery, providing compensation not only for past but also for future losses, if any.

The principle of single recovery requires the jury to “discount to present value” awards made for future losses by awarding less than the absolute dollar amount of those losses. The reason for this requirement is the “time” value of money that is invested today for future needs.

Pro: The case doesn’t go on forever

Con: There is less accuracy in estimating future damages

2. Risk of Future Injury

There is no independent cause of action for losses that have not yet occurred. Once tangible physical loss has taken place, compensation for all future losses that will more probably than not result from that loss are also recoverable. But if no physical loss has yet occurred, the fact that the plaintiff will more probably than not suffer physical loss in the future is not actionable. (Depass v. U.S. - denied recovery for increased risk of cardiovascular disease caused by traumatic amputation because court claimed study was inconclusive, even though government did not dispute the expert’s claim that this connection was statistically valid)

1. Remittitur: Plaintiff gets option to avoid expense of new trial by accepting reduction in damage award

2. Additur: Defendant gets option to avoid expense of new trial by accepting increase in damage award

3. Structured settlements: paying damages in periodic installments, less need to predict future inflation, meant to prevent early dissipation of an award, addresses plaintiffs who die prematurely to prevent survivors from receiving a windfall

4. Damage caps: many courts have struck them down, but not CA.

5. Radin, “Compensation and Commensurability:” proposes conception of payment as way to bring the wrongdoer to recognize that she has done wrong and to make redress. Not restitution or rectification. Showing the victim that rights are taken seriously—not a “trade” for the harm.

6. Chamallas, “Architecture of Bias:” devaluation of black life, women’s activities. Devaluation of emotional distress and relational injuries because linked with females.

C. Punitive Damages

In exceptional cases, the plaintiff can recover not only compensatory damages, but also punitive damages that are designed to punish the defendant.

In BMW v Gore the Supreme Court articulated three factors to be used in evaluating the constitutionality of a punitive damages award:

1. the degree of reprehensibility of the defendant’s act;

2. the disparity or proportion between the harm or potential harm resulting from the defendant’s act and the amount of damages awarded;

3. the difference between this remedy and the civil or criminal penalties authorized to punish defendants in comparable cases.

In State Farm, the court quantified the second factor, holding that few awards in which there was more than a single-digit ratio between punitive and compensatory damages would satisfy due process. Thus, punitive damages awards that are more than 9 times greater than compensatory damages are, in effect, presumptively unconstitutional.

None of the purpose of punitive damage awards --

(makes sure that the tort is not under-deterred if it is concealable, heads off violent self-help, ensures full compensation, relieves pressure on the criminal justice, channels transactions through the market, expresses community abhorrence)

-- depends critically on the defendant’s wealth or income. Plaintiff has no burden to introduce evidence about the defendant’s wealth, but the plaintiff can introduce that type of evidence if they want. (Kemezy v Peters- held that there was no burden of production on the plaintiff with respect to the defendant’s wealth.)

In State Farm, the court quantified the second factor, holding that few awards in which there was more than a single-digit ratio between punitive and compensatory damages would satisfy due process. Thus, punitive damages awards that are more than 9 times greater than compensatory damages are, in effect, presumptively unconstitutional. (State Farm v Campbell.)

Punitive Damages cannot be used to punish a defendant for an injury that it inflicts upon non-parties to the litigation. (Phillip Morris v Williams) (State Farm v Campbell)

Defenses based on plaintiff’s conduct may reduce or eliminate the defendant’s liability for the plaintiff’s harm. The defendant bears the burden of pleading and proving the facts necessary to support one of these defenses.

Contributory Negligence is the failure of the plaintiff to exercise reasonable care to protect himself or his property from the risk of harm. Historically, if the defendant proved that the plaintiff was contributorily negligent, it was a complete bar to recovery.

However, the contributory negligence rule is no longer in effect in the vast majority of jurisdictions.

Pro:

1. Fairness: It would be unfair to impose liability on the defendant when the plaintiff has negligently contributed to his own injury.

2. Deterrence: It deters plaintiffs from acting negligently too.

3. Judicial Economy (best argument): It’s easier and clearer than comparative negligence. It gives the judge a check on jury power. It protects infant industry.

1. Fairness: It is unfair to completely relieve the defendant of liability merely because the plaintiff was also a cause of his own injury.

2. Deterrence: Pain already deters plaintiffs enough.

Exceptions

1. Burden shifted to the defendant, send it to a jury.

2. Greater blame: If the defendant acted intentionally or recklessly, there is no bar.

3. Last chance: If the defendant had the last chance, the plaintiff’s negligence is not a bar.

4. Safety Statute: If the defendant violated a safety statute, the plaintiff’s neg. is not a bar.

5. Property rights protections: One is allowed to be contributorily negligent in normal use of one’s own land.

Under comparative negligence, the contributory negligence of the plaintiff does not necessarily bar recovery. Instead, plaintiff’s recovery is reduced in proportion to the amount of negligence attributable to him. (Li v Yellow Cab - held that a plaintiff was not barred from recovery just because she was also negligent – California adopted a pure comparative negligence scheme.)

There are two forms of comparative negligence.

1. Under the pure form, the plaintiff’s negligence is never a complete bar to recovery. Rather, comparative negligence applies regardless of how much more negligent the plaintiff than the defendant. The defendant’s liability is determined in direct proportion to the percentage of the defendant’s fault. Thus, if the plaintiff, is 99% at fault, she can recover 1% of the damages from the defendant.

2. Under the modified form, if the plaintiff is found to be more negligent than the defendant (and under some versions, as negligent), comparative negligence does not apply and the plaintiff’s contributory negligence is a complete bar to recovery. Thus, if the plaintiff is 51% or more at fault, the plaintiff cannot recover at all.

Complications

1. Strictly Liable Defendant = Doctrinal Complexity

In some states, comparative negligence is a defense for a strictly liable defendant; in others, it is not. When comparative negligence is a defense to strict liability, it can operate in one of these ways:

a. Comparative Causation (Bohan v Rizzo – Man injured by a dog, and there was both a comparative negligence statute and a strict liability statute for dog owners. – the Court stated that since the plaintiff had done nothing to knowingly put himself in that situation or provoke the dog, and didn’t create or exacerbate his risk of harm, the defendant should still be held strictly liable.)

b. Equitable Apportionment – its unclear what this means

c. Comparative Risk Creation – (Shug’s suggestion  When we’re comparing negligence we are comparing risk so it follows that we compare the riskiness of these activities and compare. One example of riskiness is negligence but another one is ultrahazardous activities)  I think comparative risk creation is not a good way to apportion liability because it doesn’t comport with the goals of tort law.

1. Some risks are beneficial to society, comparative risk creation wouldn’t account for the reasonableness or utility of a risk. – That would interfere with the goal of optimal deterrence.

2. Comparative risk creation also ignores the fact that some are better cost avoiders than others. Strict liability is often used to provide extra incentives for defendants who are strategically placed to prevent harms to take extra precautions.

3. Also ignores proximate cause/harm within the risk – behavior that was risky wasn’t necessarily related to the harm that occurred – doesn’t serve matching function.

If the defendant was reckless, damages are apportioned by comparing degrees of culpability and recklessness is weighed heavily.

If the defendant’s harm was intentional, the majority rule is that the plaintiff’s negligence is no defense and the defendant is still liable for 100% of the damages. (Morgan v Johnson – held that plaintiff’s negligence in being drunk did not mitigate defendant’s intention harm in beating her)

There is a minority rule, however, that states that intentional harm by the defendant should be treated the same way as recklessness and that damages should be apportioned by the intentional harm should be weighed more heavily. (Blazovic v Andrich)

C. Assumption of Risk

Generally

If the plaintiff assumed the risk of harm that he suffered, the defendant is not liable for that harm. (Murphy v Steeplechase – held that a plaintiff could not recover against a defendant amusement because the plaintiff had accepted the obvious and necessary risks of the Flopper ride. VOLENTI NON FIT INJURIA)

If a waiver of liability is contrary to public policy, a plaintiff cannot assume the risk of the defendant’s negligence. (Dalury v SKI Ltd – held that a ski resort waiver of liability was void as contrary to public policy.) The factors that might make an exculpatory agreement invalid were enumerated in Tunkl (some or all must apply)

1. “Concerns business of type suitable for public regulation

2. Party seeking exculpation is engaged in performing a service of great importance to the public

3. The party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming with certain established standards (open for business)

4. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against member of public who seeks its services”

5. Take it or leave it aspect – standardized adhesion contract makes no provision for a purchaser to pay additional reasonable fees to obtain protection against negligence

6. Purchaser is at mercy of seller, “subject to the risk of carelessness by the seller or seller’s agents.”

a. “Courts will not enforce against an adhering party a provision limiting the duties or liabilities of the stronger party absent plain and clear notification of the terms and an understanding consent.” (Obstetrics & Gynecologists Ltd. v. Pepper - Plaintiff, who suffered stroke as a result of BC pill, signed arbitration agreement but had no recollection of signing the form or having the form explained to her.)

b. Courts will not enforce arbitration agreements when they are procedurally unconscionable (Sosa v. Paulos - Court refused to enforce arbitration agreement because it was administered less than one hour before surgery when Sosa was already in a surgical gown. Procedurally unconscionable: “the Plaintiff felt rushed and hurried to sign the documents and did not read them.”)

C. Necessity

Necessity is a privilege that may serve as a defense to actions for trespass or conversion. Necessity refers to the idea that the defendant may have acted reasonably in damaging or destroying the plaintiff’s property in order to avoid harm to himself or his property, but the risk of harm to the plaintiff was not created by the plaintiff.

(Ploof v Putnam – held that the necessity of tying up a boat in a storm justified trespass on the dock, so the dock owner was liable for the damage caused by unmooring the boat.)

(Vincent v Lake Erie – held that the dock owner was entitled to compensation for damage to the dock when the boat owner docked out of necessity.)

Economic Arguments

1. Coase Theorem

“No matter who assigned a property right the parties will bargain for the generally efficient/socially optimal result as long as transaction costs are sufficiently low”

“When transaction costs are high and market bargaining won’t work, the legal system should set property rights along with liability (tort) rules to create incentives and achieve efficiency.”

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  New York Central R.R. v. White: Authorized first workers’ comp statute
  
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  Employer liable for every accident that occurs at work, whether the employer is at fault or not and whether the employee is at fault or not. Overruled prior doctrine that employer was only liable to employee for negligence (and when employee was not contributorily negligent).
  
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    Workers’ comp is an exclusive remedy  injured worker has no option to sue in tort for his injury, must accept defined benefits (unless intentional tort).
    
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  Advantages: Efficient compensation, capped damages, predictability, lower litigation costs, judicial economy, deterrence (employers make workplace safer to avoid accidents)
  
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    Normally, for every $1 of tort compensation, $1.07 of overhead. For WC, however, for every $1 of WC, only $0.23 in overhead (more efficient).
    
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    Strict limits and schedules on compensation recoverable, calculated based on injury and on expected lost earning power, up to a set statutory maximum.
    
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  Disadvantages: Fraud is 10% of all WC claims and 25% of all payouts, capture of administrative agencies, no corrective justice (no investigation into who was at fault)
  

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  Clodgo v. Industry Rentavision: Court reversed administrative commission  no recovery under WC for staple injury because accident unrelated to any legitimate, work-related activity, deviation from work.
  
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    Shugerman: By reversing administrative commission, court basically subverted the entire purpose of WC: to keep these claims out of court; now injured workers will simply appeal commission’s rulings.
    

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  Abolish tort claims, liability regardless of fault on payer’s part or victim’s part
  
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    Products: Difficult to apply to manufacturers because they cannot notify ultimate consumers that they’re participating
    
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    Automobile: Mandatory purchase of insurance by potential victims.
    
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      Pure No-Fault, 1^st-Party: Insure yourself for injuries that happen to you.
      
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      Modified No-Fault: No tort claims for less serious injuries, can only sue if injury crosses a certain threshold.
      
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      3^rd-Party: Insure yourself for injuries that you cause to someone else.
      
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    Medical: Difficult because no way to determine/define whether P suffered a compensable harm; impossible to distinguish illness or injury that P already had when seeking treatment from that caused by treatment itself
    
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      “Designated Compensable Events”
      
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      Pafford v. Secretary of Health and Human Services: P alleged that vaccine caused arthritis, had to prove that vaccine was substantial factor in causing the harm and that harm wouldn’t have occurred but-for the vaccine. Insufficient temporal link between vaccine and harm, so no recovery.
      
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  New Zealand Plan: Most radical no-fault plan, abolished all private tort actions for personal injury, replaced with comprehensive scheme that awarded benefits to all victims
  
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  9/11 Compensation Fund