Torts C Outline

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Outline for Torts

Text of Torts C Outline

I. DamagesA. General Information1. Damages used to deter a from engaging in similar torts2. To restore back to pre-tort3. General DeterrenceA goal of criminal law generally or of a specific conviction & sentence, to discourage people from committing crimes4. Specific DeterrenceA goal of a specific conviction & sentence to dissuade the offender from committing crimes in the future5. Present ValueSum of money that w/ compound interest, would amount to a specific sum at a future date6. will not be permitted to return to court later to collect for more damages that may ariseB. Compensatory Damages 1. restores a plaintiff to pre-tort status is permitting the recovery of compensatory damages. Compensatory damages are typically comprised of economic losses and noneconomic losses.a. Special Damages Economic losses, are losses that are readily subject to objective measurement, include pecuniary lossesb. Pecuniary Losses (Economic)i. lost earnings income, including wages or salary, that the plaintiff was unable to earn in the past because of the tortious injuryii. loss or impairment of future earning capacity income, including wages or salary, that the plaintiff would have earned in the future if the plaintiff had not been tortiously injurediii. past and future medical expenses expenses for medical treatment or healthcare.c. General Damagesi. past and future physical pain and suffering physical pain and suffering about which the plaintiff is aware as a result of the plaintiffs physical injuriesii. Past and future mental pain emotional distress caused by the plaintiffs injuriesiii. Permanent disability and disfigurement injuries that will indefinitely prevent a plaintiff from performing some or all of the duties that could be performed before the injury or physical disfigurement caused by tortious conduct3. Consortium Damages A loss of consortium claim is an action that the plaintiff or injured persons spouse, child, or parent is typically entitled to bring based on injuries to him or her and deriving from the injuries to the spouse or parent. 4. Spousal consortiumdamages typically include recovery for loss of sexual relations, society, companionship, affection, and financial support.5. Parental consortium damages typically include recovery for loss of society, affection, and companionship.6. Filial consortium damages recoverable by a child for the loss of a parent, include the childs society, affection, and companionship given to a parent.7. Derivative Most consortium claims must be brought along with the injured partys cause of action, it arises by virtue of the injury to the plaintiff or injured person8. Loss of Enjoyment AKA Hedonic Damagesthe detrimental alterations of a persons life or lifestyle or a persons inability to participate in the activities or pleasures of life that were formerly enjoyed9. Casesa. loss of enjoyment of life is recoverable as a separate element of general damages that may be included as a separate item on a jury verdict form. (Mcgee v. AC & S, Inc)b. Courts may order a remittitur of damages when a jurys assessment of damages is excessive based on the evidence. (Richardson v. Chapman)i. remittitur: a means by which the court can control an excessive jury awardii. additur: courts order increasing the jurys award in order to avid a new trial on inadequate damagesc. look at the lessor of the two to rebuild/replacement cost or market value (In re September 11th Litigation)d. The collateral source rule prevents the introduction of evidence of payments received by an injured party from sources collateral to the wrongdoer. (Montgomery Ward & Co, Inc. v. Anderson)i. Collateral-source rule: prevents a tortfeasor from benefiting from payments made to the for injuries: Workers comp, insurance e. In order to recover for permanent injuries, a plaintiff has a duty to mitigate those damages by submitting to treatment that would cure the damages if a reasonable person would do so under the same circumstances. (Zimmerman v. Ausland)i. Mitigation of damages doctrine: prevents a from claiming damages for a permanent injury if the permanency of the injury could have been avoided by submitting to treatment when a reasonable person would have done so.B. Punitive Damages1. damages that are awarded above and beyond compensatory damages for the distinct purpose of punishing a defendant for engaging in particularly egregious conduct2. Sometimes called exemplary or vindictive damages 3. Awards are often constrained by constitutional consideration 4. To deter the from doing it again and set an example for others 5. Casesa. The Due Process Clause of the 14th Amendment of the United States Constitution (Constitution) limits the amount recoverable in punitive damages when the damages constitute grossly excessive punishment for a tortfeasor (BMW of North America, Inc. v. Gore)b. C. Nominal Damages1. Damages are awarded but suffered no substantial loss or injury2. It is a trivial amount of money example $13. It is to recognize the s legal interest were invaded/violated, despite the fact the no real loss was sufferedII. Wrongful Death & Survival A. Wrongful Death Statue 1. by statute, every jurisdiction permits recovery for the tortiously caused death of another by their family spouse kids, must prove liability/negligence 2. A wrongful death action is a new, independent statutory cause of action that inures to the benefit of statutorily defined plaintiffs. 3. wrongful death statutes typically allow for specifically defined family members of the deceased to recover for injuries caused by the death. 4. Loss of enjoyment loss of society 5. Wrongful Death Statuteswere enacted so that defined beneficiaries (spouse/children) of one tortiously killed could bring a tort action for injuries caused by that death6. Damages: may have hard money7. defenses: contributory negligence & assumption of risk 7. Casesa. The Supreme Court overturns its previous holding in The Harrisburg and allows for a wrongful death action in maritime law. (Moragne v. States Marine Lines Inc.)i. Maritime Law: governing marine commerce & navigate the carriage of sea of persons/property & marine affairs in generalb. Under Nebraska law, the loss of society, comfort and companionship are recoverable for a childs death in a wrongful death suit. (Selders v. Armentrout)B. Survival Statutes 1. Permits specified causes of action, which either may have been brought by a prior to her death or against a prior to his death2. were enacted to permit a decedents estate to bring any actions that were extinguished by the decedents death, gone but their estate3. Loss wages, medical expenses, if both tortfeasor dies goes after their estate4. Cases a. Damages for loss of property, loss of wages and the pain and suffering of a decedent are allowed under survival statutes when the decedent later dies from injuries which created the cause of action. (Murphy v. Martin Oil Co.)III. Joint TortfeasorA. Joint & Liability of 1. is a form of liability that is used in civil cases where two or more people are found liable for damages, acting in concert is main idea, the drag racing example 2. winning plaintiff in such a case may collect the entire judgment from any one of the parties, or from any and all of the parties in various amounts until the judgment is paid in full. In other words, if any of the defendants do not have enough money or assets to pay an equal share of the award, the other defendants must make up the difference.3. Vicarious Liability: doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as parent/child, employer and employee, or owner of vehicle and driver), to exercise such care as a reasonably prudent person would use under similar circumstances.4. Joint tortfeasor2 or more tortfeasors who contributed to the claimants injury & who may be joined as s in the same lawsuit5. 15When a persons are liable because they acted in concert, all persons are jointly & severally liable for the share of comparative responsibility assigned to each person engaged in concerted activity (concert: induced & encouraged the tort)6. Joint & Several liabilityliability that may be apportioned either among 2 or more parties OR to only one or a few members of the group, at the adversarys discretion, each liable party is individually responsible for the entire obligation, but a paying party may have a right of contribution and indemnity from nonpaying parties, one injury with two or more causes7. Statutory Limitations Many states have limited the joint liability doctrine by statute in cases based on fault. Two of the most common types of statutes abolish joint liability either (i) for those tortfeasors judged to be less at fault than the plaintiff, or (ii) for all tortfeasors with regard to noneconomic damages (e.g., pain and suffering). The liability of a tortfeasor in these situations is proportional to his fault. 8. Casesa. When two or more individuals are wrongdoers acting in concert and their actions injure a third party, all may be liable for concurrent negligence, regardless of which of the individuals directly caused the injury. (Bierczynski v. Rogers)b. Joint and several liability is still applicable when contributory negligence is replaced by comparative negligence. (Coney v. J.L.G. Industries) c. that the original tortfeasor is not jointly & severally liable for further agrriavation of an original injury caused by a subsequent tortfeasors medically negligent treatment of the injury caused by the original tortfeasors negligence (Banks v. Elks Club Pride of Tennessee)B. Satisfaction & Release 1. Satisfaction If plaintiff recovers full payment from one tortfeasor, either by settlement or payment of a judgment, there is a satisfaction. She may not recover further against any other joint tortfeasor. Until there is a sati