SPECIAL DAMAGES (where all the action is)

SPECIAL DAMAGES (where all the action is)

1. MUST BE proximately caused by the injury, but if P has a preexisting condition, P’s damages may be reduced to take this into account. [Gilbert 213]

   1. MEDICAL EXPENSES (hospital, medical, therapeutic, psychiatric) [Gilbert 213]

1. PAST: proved with precision

2. FUTURE: P must produce evidence to establish the probability that future medical treatment will be required and of the costs

1. Note: future medical expenses must be discounted to their present value.

   1. Must be certainty as to the fact of the damage (no recovery for mere exposure to toxic substances without more proof). However, some cases have required toxic tort defendants to pay for medical monitoring of exposure victims. [Gilbert 214]

1. REASONABLE VALUE OF THE MEDICAL SERVICES

2. SOMEONE ELSE CAN PAY FOR THEM – SUCH AS THE INSURER

1. LOSS OF EARNINGS. Difference between actual earnings and what P would have earned “but for” the injury

1. PAST (to date of trial)

1. Not mitigated by sick pay b/c of collateral source rule.

2. Lost FUTURE EARNINGS (temporary)

1. discounted to Present Value

   1. Based on work expenctancy. For permanent injury = # of years until probable retirement. If P’s life expectancy is shortened from the injury, it does not reduce P’s damage award, but P usually cannot recover an additional amount for shortened life expectancy. [Gilbert 216]

1. LOSS OF EARNING CAPACITY

1. DIMINISHED VALUE MEASURE (permanent)

   1. DIFFERENCE BETWEEN WHAT PLAINTIFF COULD HAVE EARNED V. WHAT WILL LIKELY EARN BECAUSE OF THE INJURY – EXPENSES SAVED (EDUCATIONAL OR TRAINING COSTS)

   2. EVIDENCE. Lack of earnings history requires the use of probabilities and actuarial tables. Relevant factors include the injured party’s age, aptitude, progress in education, family background, health, marriage prospects, etc. [Gilbert 217]

   3. Can probably get this, even if you are a kid.

   4. Much discussion about whether “expenses saved” (such as college tuition) should be deducted. If so, how much.

4. Special because they relate back to the injured person and consider the person’s subjective situation.

5. Usually have to actually be incurred, but someone else can pay for them, such as an insurance policy.

6. Questions include period payments and whether payments should be discounted to present value.

7. If you can’t go back to your job because of the injury, damages will probably be in the lost earning capacity category, not diminished earning capacity.

8. INDEMNIFICATION MEASURE

9. LOST FUTURE EARNINGS MUST BE REASONABLY CERTAIN

10. If P is a business owner, P is entitled to recover for the loss of profits attributable to the loss of P’s services. Could be measured by the cost of hiring a substitute. [Gilbert 216]

1. DERIVATIVE ACTIONS

1. DERIVATIVE OF P’s CLAIM SO P MUST PREVAIL IN HIS/HER CLAIM FOR THE THIRD PARTY TO BRING CLAIM

   1. LOSS OF CONSORTIUM

1. TANGIBLE: SUPPORT

   1. INTANGIBLE: LOVE, AFFECTION, COMPANIONSHIP

   2. WHO CAN RECOVER? Emerging trend is to allow minor children to recover for loss of consortium with a parent. Older children would be more dicey. Siblings probably cannot recover, unless special circumstances.

   3. WHAT TYPES OF DAMAGES? Most difficult area. Once you get through the door that you are entitled to recover, you can definitely get intangibles for a reasonable amount. Tangibles (support/earnings) = hardest.

   4. WHITE CONSTRUCTION V. DUPONT: husband is injured in a trucking accident. WC challenges damages award to wife for loss of consortium because it appears to be double recover for loss of husband’s earnings. Court agrees. Upon analysis, wife provided significant testimony, but didn’t address the loss of husband’s services, beyond his lost wages. Missing competent testimony. Contrast to husband who lost wife and was able to recover for her services because he went to effort to show the true cost of replacing those services.

3. MENTAL ANGUISH of THIRD PARTY from SEEING OR HAVING A LOVED ONE INJURED (unusual because most states already have recovery for negligent infliction of E.D., which doesn’t rely on P’s case to recover.) (minority position). Many times, the loved one has their own C/A for Mental and emotional Distress, so this isn’t needed. Has been limited to spouses, but trend to open it up to minor children.

1. CASES

1. FRANKEL V. UNITED STATES: Girl gets permanently injured in an auto accident caused by an army vehicle. Whether the damage award is appropriate? Jury awarded $650K. What they “felt like giving.” How measured? Figured she would earn $5K per year for the rest of her life. PV used b/c periodic payment, using 6% rate. FUTURE MEDICAL EXPENSES issues: Wasn’t really medical care, more like custodial care. These costs would be paid out over time at regular intervals. If medical costs were true hospital costs, such as for surgery, it would not be discounted, but they would get the full money up front so they can pay for the surgery. Expert usually testifies about a plan of care, (prescriptions, etc.) and this money has to be put in P’s hands. But elder care and other custodial care awards get discounted. Now-a-days, structured settlements are done more often, especially by agreement or if the amount of the award meets statutory thresholds.

2. Wilburn v. Maritrans GP, Inc.: LEC: Jury gave Wilburn $1M for shoulder/knee injury. (Permanent injury). Court says this is excessive because he can still work, just didn’t get the barge captain job because he doesn’t want to go on voyages away from the land. Instead, court looks at difference in the salaries of the two position. Remititur: He can take the award reduced by the court or have another trial on the damages. Prof: probably, the amount should be reduced to PV, but court probably backed off a bit because they were already reducing the award.

3. CATES V. BROWN

4. BABY ALISSA

5. HEALY V. WHITE: STANDARD FOR DETERMINING WHETHER PLAINTIFF SHOULD BE ALLOWED TO RECOVER FOR FUTURE MEDICAL EXPENSES? Take P as you find him. Fairly low quantum of proof required (50%+ probability) that there will be future damages suffered. EVIDENCE? Court accepts evidence about kid’s history in school.

6. WHITE CONSTRUCTION V. DuPONT

7. LUMP SUM: GRAEFF V. BAPTIST TEMPLE

9. 
   
   Directory: wp-content -> uploads -> womenandlaw
   uploads -> For want of a nail
   uploads -> Police Militarization
   uploads -> Stop Militarizing Law Enforcement Act of 2014
   uploads -> 2017 afoCo Landmark Scholarship Program
   uploads -> Instructions for the Preparation of Camera-Ready Contributions to the Conference Proceedings
   uploads -> Medical Radiography Program
   uploads -> Ihbb asian Championships 2014 middle school bowl Round 4 First Quarter
   uploads -> Ihbb european Championships 2014 Bowl Round 4 First Quarter
   womenandlaw -> Introduction To Criminal Procedure Three major topics
   womenandlaw -> Strict liability
   
   
   
   Download 200.81 Kb.
   
   Share with your friends: