Chapter03

&= nbsp; Most tort suits involve a claim by the person who was directly injured by the defendant's negligence: in an intersection collision case, the person struck and injured by the defendant will seek recovery for her injuries. In addition to the party directly injured, other parties may claim damages as a result of the defendant's negligence. The need to recognize such claims = is most apparent in wrongful death cases, where the direct victim is incapable= of being compensated. In additio= n, however, tort law has tried to strike an appropriate balance between compensating real injuries on the one hand and avoiding the extension of to= rt liability beyond manageable limits. For example, most jurisdictions recognize the right of a spouse to recover for loss of consortium--the society and companionship of the spouse, along with the economic and social costs that are associated. On the other hand, to extend the c= ame right of recovery to any member of the immediate victim's family would grea= tly multiply the number of lawsuits handled by the system.

Bystanders/Consortium Claims

= Bystanders. Those who were are present at a gr= uesome accident and are emotionally traumatized often claim damages even if they themselves were not physically hurt. These claims are sometimes called "parasitic" because they depend upon the existence of a valid claim by the direct victim of the accident. Over time the law f= or bystanders has evolved from an impact rule (requiring the plaintiff to be touched in order to be eligible to recover) to a zone of danger rule (allow= ing a recovery to those who could have been injured by the defendant's negligen= ce) to one which weighs the factual circumstances to determine foreseeability (e.g., Dillon v. Legg). Howev= er, the law in this area is unsettled. <= /span>

= Consortium. Most jurisdictions permit recovery= by a spouse for loss of "consortium"--literally, the society (and companionship) with the direct victim.&nbs= p; Claims for loss of consortium have also been brought by other family members, but with less success in most jurisdictions. Claims by family members other than spouses are often tied in with bystander claims; the family member can reco= ver if they were present at the accident scene.

Calcul= ating the Amount of Damages

= Even where the categories of recoverable damages have been determined, and the e= ligible parties have been identified, it remains to set an actual dollar amount. Several factors come into play to = affect this calculation. =

Collateral Sources

= If the plaintiff is compensated from a source other than a tortfeasor, the traditional rule in most jurisdictions was that the defendants should not be allowed to reduce their liability by such amounts. For example, if the plaintiff rece= ived health insurance benefits to pay for the medical costs following an acciden= t, the defendant would still be required to pay as though they had never been received. This sounds like "double dipping," but in most cases the insurer was able to recov= er (through subrogation) whatever they had advanced. Reform statutes often altered that= rule, allowing the jury to hear evidence concerning benefits the plaintiff had already received to pay for the injury, and reduce the defendant's liability accordingly.

Types of Recoverable Damages

= The first task in assessing damages is to determine the types of damages that a plaintiff can recover. To some extent this section also involves a determination of the threshold requirem= ents for recovering any damages at all. The basic types of damages are:

Compensatory Damages

Punitive Damages

Economic Damages

= · Property Damage=

= · Lost Wages

= · &nbs= p; Medical Expenses

Non-economic damages

= · &nbs= p; Pain and Suffering

= In addition to these categories, there are the costs of litigation that the wi= nning party would like to recover as part of the loss suffered by the plaintiff.<= span style=3D'mso-spacerun:yes'> However, such costs are typically = not recoverable (see “Litigation Costs”)

Excessive Awards

= A major emphasis of the tort reform movement was the claim that awards in personal injury suits were excessive. Many jurisdictions responded by enacting limitations on the total am= ount of damages that could be recovered, particularly for pain and suffering. Some of these "caps" wer= e held to be unconstitutional, either because of the right to a trial by jury, or because they violated an "open courts" promise in the state constitution. Still other jurisdictions found them an appropriate legislative response to the tort crisis.

Litigation Costs

= Although the tort system strives to calculate an award that will put the plaintiff b= ack to as good a position as he or she would have been in but for the injury, o= ne expense is routinely undercompensated: the cost of bringing a lawsuit to obtain compensation. The "American Rule&quo= t; regarding attorney's fees requires each party in the litigation to pay its = own attorney's fees, whether they are successful or unsuccessful. This has the effect of making it a= less risky venture to bring a lawsuit, or defend one, but it means that a victor= y is less than complete: a defenda= nt who successfully establishes his lack of liability will still pay for the cost = of defending himself; a plaintiff who establishes that the defendant wrongfully caused him injury will still have to pay his lawyer the cost of bringing the case. Some tort reform propos= als have suggested moving closer to the "English Rule," which would require the loser to pay the winner's legal fees.

Medical Expenses

In most personal injury cases the plaintiff incurs medical expenses. The expenses prior to trial are ea= sily calculated, and are subject only to a reasonableness test. On the other hand, the expenses projected for the future, especially in a serious case, are hard to calculate. Escalating medical= costs make it all the more difficult. Seven-figure medical expense awards are not uncommon in cases of bra= in damage or paraplegia. Like wa= ge loss, a medical expense award must first be calculated in terms of future dollars, and then that sum must be discounted to present value to determine= the jury award.

Econom= ic v. Noneconomic Damages

= An additional test used by some jurisdictions in deciding on joint and several liability is to distinguish economic (out-of-pocket) damages from non-econo= mic (pain and suffering) damages. The plaintiff may be able to recover economic damages in full, whereas non-econ= omic damages will be recoverable only to the extent that the culpable defendants= can actually pay their percentage shares.

Pain and Suffering

<= span style=3D'font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast= -font-family: "Times New Roman"'> = In addition to the out-of-pocket costs suffered by the plaintiff, there are usually emotional damages, including physical pain, emotional trauma caused= by the loss of the ability to engage in activities formerly enjoyed, etc. Unless the compensation for the plaintiff's injury includes these amounts, there will not be adequate compensation. Juries have a difficult time assessing pain and suffering, in part because the injuries a= re less amenable to verification, and also because it is hard to put a dollar value on feelings.

<= i> = Emotional Damages without accompanying physical harm. Traditional tort law did not allow= a recovery for "just" emotional harm. For example, in Spade v. Lynn the plaintiff was badly frightened on a train because of the defendant's neglig= ence, but she was unable to recover anything.&nb= sp; Courts have justified such a rule because of its administrative convenience and because of a fear of litigation over trivial injuries. On the other hand, some cases have allowed recovery where the damage is severe and otherwise deserving of recovery. For example, in = Johnson v. State of New York, the defendant hospital negligently informed the plaintiff that her mother had died, when instead it was a different Mrs. Johnson. Despite the lack of = any physical injury, the court held that there was a "guarantee of genuineness" that would allow recovery for the emotional as well as out-of-pocket expenses.

Permissible Jury Arguments

    =         Plaintiffs understandably want to get the jury to award as high an amount as possible. To influence the ju= ry the plaintiff's bar developed persuasive arguments. One suggested that the jury imagin= e a single day in the plaintiff's condition and award the amount that would fai= rly compensate for that one unit; to calculate the whole award the number of da= ys would then be multiplied by the amount of time the plaintiff was projected = to suffer the disability. This "per diem" argument has been held by some courts to be misleading= and therefore impermissible. Simi= larly, lawyers who want the jury use the award to "send a message" to ot= hers in the defendant's industry have been forced to focus on compensatory rather than punitive measurements.

Property Damage

    =         When a plaintiff's property is damaged or destroyed as a result of defendant's negligence, the plaintiff can recover the amount of the property loss, meas= ured in one of two ways, whichever is the smaller:   (1) the cost to repair the property to its pre-accident condition; or (2) the difference in the fair market value before and after the accident. For example, if the plaintiff's Me= rcedes was struck from behind by a defendant who was following too closely, the plaintiff can recover the cost to restore the car to its pre-accident condition. On the other hand,= if the plaintiff's Pinto is broadsided, it will probably be "totaled"--meaning it is not economically feasible to repair the = car; instead, the defendant will pay what the car was worth before the accident = and let the plaintiff replace it. In theory (if not always in practice), this puts the plaintiff in as good a position as he would have been but for the accident.

<= span style=3D'font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast= -font-family: "Times New Roman"'>

Punitive Damages

    =         In an ordinary negligence case, the plaintiff is entitled to be compensated for the injury, that is, put back in as good a position as he or she was before= the accident, to the extent that is possible.&= nbsp; In some cases, however, the plaintiff is entitled to do more than se= ek compensation; the plaintiff may use the opportunity of the lawsuit to punish the defendant for antisocial conduct. An award of punitive damages may only be made where the conduct of t= he defendant is either malicious (reflecting an intent to cause harm) or so la= cking in regard for the plaintiff's safety to require a punitive award.

Special damages

    =         Special Damages refer to those damages that result in an out-of-pocket loss to the plaintiff. For example, wage = loss and medical expenses are considered "special damages," as opposed= to general damages, mostly pain and suffering damages. (There is some confusion on this p= oint, since sometimes the term "general damages" is used to include fut= ure medical expense, as distinguished from what has been paid out in the past). In the language of ins= urance claims adjusters, "specials"--shorthand for "special damages"--refers to what the plaintiff has already paid in medical expenses and wage loss, and is used as a rough rule of thumb to evaluate the amount of pain and suffering damages that can be expected.

Wrongful Death

    =         In cases where the defendant's negligence results in a person's death, the tort system must create a suitable remedy to measure the damage. The earliest historical approach to wrongful death was essentially to ignore it, since the state's punishment of wrongful death (execution and forfeiture of goods) left nothing to be used = for compensation. However, after = courts declared their inability to create their remedy for wrongful death, legisla= tures responded by enacting one of two types of statutes: so-called "wrongful death&quo= t; statutes focused on the injury suffered by the immediate family of the decedent, and usually measured the economic loss suffered by the spouse or children (even the parents) of the decedent as a result of his or her prema= ture death. On the other hand, oth= er jurisdictions enacted "survival" statutes, which provide for the SURVIVAL of the cause of action. In other words, a legal entity was created (actually, simply recognized in the form of the decedent's estate) that had a right to sue for compensation. The measurement in survival act st= atutes tends to be the kind of damages the decedent would have been able to collect had he lived. Again, wage los= s was a prime consideration. In add= ition, statutes sometimes provide for recovery for emotional harms, either in the = form of the loss of relationship suffered by the family members, or in the form = of the ability to enjoy life that was lost by the decedent through his prematu= re death. Since remedies for wro= ngful death are creatures of statute for the most part, careful attention must be paid to the specific provisions in the jurisdiction governing each case.

Wrongful Birth / Wrongful Life

=     =         Most tort cases involve a clearcut injury such as a broken arm or a facial scar. Where the defendant's negligence results in an unplanned pregnancy, however, damages are more difficult to assess. A typica= l case involves the failure of a sterilization or birth control measure, or the failure of a healthcare professional to provide timely advice. The claim is that if the defendant= had used reasonable care, the pregnancy would not have occurred. Courts are divided on how to assess damages where the child is born otherwise healthy. Some jurisdictions have stated as a matter of policy that, while the expense of being pregnant and having the child, along with the associated pain and suffering, can be compensated, no compensation is required for the cost (both financial and emotional) of rea= ring a child, since as a matter of law those costs are outweighed by the benefit= of the new family member. Other jurisdictions have permitted the jury on a case-by-case basis to assess the positive as well as the negative features of having a child and (using the Restatement test of imputed benefit) come up with a net damages assessment.=

=     =         In the case of a child born with disabilities, however, most jurisdictions recognize the right of the parents to recover for the extraordinary costs associated with the child's disability.&nb= sp; Finally, most jurisdictions refuse to recognize (or provide minimal recovery for) the child's claim that he would have been better off never to have been born. This claim is raised only by a child born with significant disabilities, and most courts--recognizing the metaphysical difficulty of evaluating life versus non-life--have either refused to recognize the cause of action or have gran= ted only nominal damages.