Friday, June 18, 2010
1 - Damages
1 - Damages
PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL. IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR. IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.
In torts there are three categories of damages. Nominal, Compensatory and Punitive.
Nominal damages are symbolic awards, like $1.00 for trespassing on one's property.
Compensatory damages are awarded as compensation, indemnity or restitution for harm sustained. There are two categories of compensatory damages: pecuniary and non-pecuniary.
Pecuniary damages are also called Special Damages. By pecuniary we mean damages that are readily capable of being measured in dollars and cents. These are also called Economic or Special Damages. You should note that future losses are recoverable. One need not establish with certainty, but rather the standard is “more probable than not that they will be incurred and have some reasonable basis beyond mere speculation.”
Non-pecuniary Damages are those that cannot be readily measured in dollars and cents. These are often called General Damages. General damages are monetary recovery (money won) for injuries suffered (such as pain, suffering, or inability to perform certain functions) for which there is no exact dollar value which can be calculated. They are distinguished from Special Damages, which are for specific costs
Special Damages (economic or pecuniary damages) are damages claimed and/or awarded in a lawsuit which were out-of-pocket costs directly as the result of the breach of contract, negligence or other wrongful act by the defendant. Special Damages can include medical bills, repairs and replacement of property, loss of wages and other damages which are not speculative or subjective. They are distinguished from general damages, in which there is no evidence of a specific dollar figure and generally must be specifically pleaded.
Punitive damages are awarded to punish and deter particularly egregious conduct. They are discretionary and are awarded when a tort is committed with malice. They must bear some reasonable relationship with actual damages. Sometimes called exemplary damages, they are for punishment and to set an example when malice, intent or gross negligence was a factor.
Here is how these damages are measured:
Pecuniary (special or economic):
1. For injury or damage to property: diminished value, replacement value or rental value
2. For personal injury: medical expenses, lost wages, diminished earning capacity and other economic expenses incurred due to the injuries
Non-pecuniary (general): For pain and suffering and other variations of mental distress
Regarding damages in tort, there are two other things for you to consider:
1. Mitigation/ “Avoidable Consequences Doctrine"
Injured parties have a responsibility to act reasonably to limit or "mitigate" losses incurred.
2. Collateral Source Rule
Under the traditional CL doctrine, P's recovery against the D is not affected by compensation P received for the loss from other (collateral) sources. Collateral sources are not disclosed to the jury. 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 states mandate a reduction in an award if there is a collateral source payout.
Does this mean that plaintiff gets double recovery? No. This is a matter of “subrogation.” Note that a subrogation clause in an insurance contract is valid and will allow insurance companies to collect from the insured, any amounts paid to the insured that are recovered by the insured against D.
Professor Doug Holden
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