In the last Torts session, we finished up our discussion on causation. Now we move on to the next element of negligence – Damages.
In order for plaintiff to recover in negligence, of course he must have sustained some sort of injury. This seems self-evident, but you would be surprised how often students forget to talk about it.
Plaintiff must suffer a cognizable injury – that is, one that is capable of being perceived or known. Tort damages include 1) nominal, 2) compensatory and 3) punitive damages, but before we get to that, a word on some other terminology:
General Damages: These are damages for which there is no exact way to economically measure the amount. These are “non-pecuniary” damages – monetary recovery for such things as pain, suffering, or breach of contract for which there is no exact dollar value which can be calculated. General damages are distinguished from both special damages and punitive (exemplary).
Special Damages: These are damages for which there IS an exact way to economically measure the amount. These are “pecuniary” damages – monetary recovery for out of pocket costs directly related to defendant’s negligence, such as medical bills, replacement or repair of property and lost wages. The key here is that damages must both be subjective and cannot be speculative.
General and special damages are compensatory. The goal is to compensate plaintiff for his loss.
Nominal damages are not compensatory, but rather are symbolic awards (one dollar) to say to the defendant, “We may not be able to compensate the plaintiff for loss, but we want the record to reflect that you were wrong – at fault.”
Punitive Damages are awarded to punish and deter particularly egregious conduct. They are discretionary with the court and are awarded when a tort is committed with malice. In almost all jurisdictions, they must bear some reasonable relationship with actual damages.
Mitigation/Avoidable Consequences Doctrine: The point here is that injured parties have a responsibility to act reasonably to limit or "mitigate" losses incurred.
Collateral Source Rule: Under the traditional common law doctrine, plaintiff’s recovery against the defendant is not affected by compensation plaintiff received for the loss from other (collateral) sources – e.g. insurance companies. In some jurisdictions, collateral sources are not disclosed to the jury, but many states now reject the collateral source rule and allow juries to know of and consider any collateral source payout and deduct the same from any award. In addition, some jurisdictions require a reduction in an award if there is a collateral source payout.
A subrogation clause in an insurance contract is valid and will allow insurance companies to collect from the insured, any amounts paid to the plaintiff/insured that are recovered by the plaintiff/insured against defendant.
That’s it for damages. Next in torts, we’ll look at defenses.
Professor Doug Holden
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