Chapter 4 (Damages) – Discussion Questions
1.
What is the difference between “damage” and “damages”? Who has the
burden of proof on the issue of damages?
 “Damage” is considered to be the negative infliction upon the individual’s person
that may incur “damages” that financially compensate/hold responsible the /
in their suit against another
 The
2.
What is a remittitur?
 A remittitur is a ruling by a judge (usually upon motion to reduce or throw
out a jury verdict) lowering the amount of damages granted by a jury in a
civil case. Usually, this is because the amount awarded exceeded the amount
demanded; however, the term is sometimes used for a reduction in awarded
damages even when the amount awarded did not exceed the amount
demanded, but is otherwise considered excessive. (WIKI;
http://en.wikipedia.org/wiki/Remittitur)
3.
In Anderson v. Sears, Roebuck & Co., what elements of damages did the
court address? What did the court say about the plaintiff’s past medical expenses?
4.
Why did the court in Anderson approve an award of only $330,000 for lost
future earnings?
(A) Assume that Helen Britain’s life expectancy was 75 years and that she reasonably
would have been expected to work 50 of those years; how much is that per year? Does
this seem reasonable?
(B) Now assume that Helen could expect a rate of return of 3 percent (simple interest)
per year on her lost future earnings award. If she received the lump sum award of
$330,000 on January 1, 1975, how much would that have earned as of December 31,
1975?
© Go to the Department of Labor’s Bureau of Labor Statistics consumer price index
calculator at http://146.142.4.24/cgi-bin/cpicalc.pl and determine today’s buying power
of the amount you calculated in 4(b). Does this change your initial impression of
whether the amount from 4(a) is reasonable?
5.
What is the collateral source rule? What are some examples of collateral
source benefits?
 “The collateral source rule as applied here embodies the venerable concept that
a person who has invested years of insurance premiums to assure his medical
care should receive the benefits of his thrift…
 The collateral source rule expresses a policy judgment in facvor of encouraging
citizens to purchase and maintain insurance for personal injuries and for other
eventualities.”(p. 189)
 “The collateral source rule, or collateral source doctrine, is a common law
evidentiary rule that prohibits the admission of evidence that a victim's damages
were or will be compensated from some source other than the damages
awarded against the Defendant. For example, in a personal injury action,
evidence that the Plaintiff's medical bills were paid by medical insurance, or by
Workers' Compensation, is not generally admissible.” (WIKI,
http://en.wikipedia.org/wiki/Collateral_source_rule)
6.
What policies underlie the court’s decision in Helfend v. Southern California
Rapid Transit Dist.?
7.
Using Zimmerman v. Ausland as a guide, what factors are relevant to
determining whether the plaintiff’s refusal to have an operation was unreasonable?
 Whether the surgery was
o Hazardous
o Probability of success
o Surgery Necessary?
 Mortality Table
o Life expectancy table that determines the individuals length of life and
how much pain and suffering individual may endure
 Florida Standard Jury instruction 6.9(a)
o If the greater weight of the evidence shows that (claimant) has been
permanently injured, you may consider his life expectancy. The mortality
tables received in evidence may considered in determining how long
(claimant) may be expected to live…”
 Avoidable consequence rule
8.
What is prejudgment interest? Should all amounts ultimately awarded by
the jury be subject to prejudgment interest or should there be some limitations?
 Prejudgment interest is interest earned before the judgment
 Prejudgment interest may not be awarded on unliquidated demands or claims
o “Unliquidated” generally includes claims where the amount is contested
but not finally fixed until determined by the fact finder
o A claim would be considered “liquidated” if the amount of damages is
certain but the right to it is contested
9.
Does an action for wrongful death arise from common law or statute?
Explain. What difference does it make?
 Should all amounts ultimately awarded by the jury be subject to prejudgment
interest or should there be some limitations?
o Survival Statutes
 Allow a claim to survive the death of either part
 If the  dies, the claim is prosecuted by the estate
o Wrongful death statutes
 Permit a reasonable class of individuals in relation
10.
In Gonzalez v. New York City Housing Auth., the court makes the following
statement: “The [New York wrongful death] statute authorizes the personal
representative of a decedent survived by distributes to maintain an action for wrongful
death. Since the statute is in derogation of the common law, it must of course be
strictly construed.”
a.
What does this mean?
b. What are “pecuniary injuries”?
 The “pecuniary injuries” cause by a wage earner’s death may be
calculated, in part, from factors relevant to the descendant’s
earning potential, such as present and future earning, potential
for advancement and probability of means to support heirs, as
well as factors pertaining to the decedent’s age, character and
condition, and the circumstances of the distributees. In the case
of a decendant who was not a wage earner, “pecuniary injuries”
may be calculated, in part, from the increased expenditutres
required to continue the services she provided, as well as the
compensable losses of a personal nature, suchas as loss of
guidance.” (p.201)
 “Pecuniary injuries resulting from the decendant’s death to the
persons…
c.
The court acknowledged that “New York since its first wrongful
death statute has steadfastly restricted recovery to ‘pecuniary injuries,’
or injuries measurable by money, and denied recovery for grief, loss of
society, affection, conjugal fellowship[,] and consortium.” Review the
paragraph on page 202 of the text that begins “As the record
establishes.” Is the court blurring the line between pecuniary injuries
and grief, loss of society, and affection?
11.
Carefully read O’Shea v. Riverway Towing Co. and compare the decision with
Note 1 (“A Possible Shortcut”) on page 209 of the text. What economic factors are
ignored in the Alaska and Pennsylvania shortcuts? What will be the result?
 “We come at last to the most important issue in the case…”(p.209)
12.
At page 210 of the text, the authors cite 26 U.S.C. § 104 (i.e., § 104 of the
Internal Revenue Code) for the proposition that “An award of compensatory damages in
a case involving physical personal injuries is not taxable to the recipient.” Compare this
with the language of the statute: “[G]ross income does not include … the amount of any
damages (other than punitive damages) received (whether by suit or agreement and
whether as lump sums or as periodic payments) on account of personal physical injuries
or physical sickness … ; emotional distress shall not be treated as a physical injury or
physical sickness … .” I.R.C. § 104(a)(2).
a.
Based on the statutory excerpt, is the authors’ statement overly
broad?
b. Assume the following facts: During a basketball game between the
Minnesota Timberwolves and the Chicago Bulls, a Bulls player goes out of
bounds, trips over a photographer, twists his ankle, and then proceeds to
kick the photographer in the groin. The parties settle their dispute with
the Bulls player agreeing to pay $200,000 to the photographer. In return,
the written settlement agreement provides that a portion of the
$200,000 is consideration for the photographer’s promise not to: (1)
defame the Bulls’ player, (2) disclose the existence or terms of the
settlement, (3) publicize facts relating to the incident, or (4) assist in any
criminal prosecution with respect to the incident. The photographer
takes the position that none of the $200,000 should be taxable; the IRS
takes the opposite view. How do you think the Tax Court resolved the
issue?
13.
Go to WestLaw or Lexis and read In re Air Crash Disaster Near Chicago on
May 25, 1979, 803 F.2d 304 (7th Cir. 1986). What were the two tax-related issues
addressed by the court?
a.
Does the opinion mean that evidence of income taxes will be
relevant in all tort cases? In all wrongful death cases? In all wrongful
death cases tried in federal courts? In all wrongful death cases in Arizona
state courts?
b. Do you agree with the rationale stated on page 214 for instructing
jurors as to whether the amount they award the plaintiff will be taxed?
c.
In a personal injury case, which party would prefer not to have the
jury know that the award is not subject to federal income taxes? Why?
Does this promote justice?
d. In a case where the jury award is subject to taxation (e.g., an action
for defamation or for false imprisonment without a concomitant battery),
which party would like the jury to know that the award will be taxed?
14.
Compare In re Air Crash Disaster with Hoyal v. Pioneer Sand Co. (Colo. 2008).
Which court’s reasoning seems more persuasive? Why?
15.
What are punitive damages?
16.
In Campbell v. State Farm Mut. Auto. Ins., the Court discussed the three
“guideposts” that it had issued in BMW of North America v. Gore. What are they?
17.
Are punitive damages assessed by a judge or a jury?
18.
What are some procedural mechanisms that might reduce the risk of unfair
punitive damages awards?
19.
If the purpose of a punitive damage award is to punish or make an example
of the defendant, does such an award constitute a windfall to the plaintiff and her
attorney? Would it be fairer or more logical to have the punitive damages payable to
the State?
20.
Explain some of the potential conflicts of interest that arise in contingent fee
contracts.
Chapter 5 (pp. 233-51)
1. What are the elements of a negligence claim? Which element was the focus of
Cardozo's opinion in Palsgraf v. Long Island R.R.? Which element was the focus of
Andrews' dissenting opinion?
 Prosser’s four elements
o Duty

Prosser states, “there is a duty if the court says there is a duty;
the law, like the constitution, is what we make it. Duty is only
a word with which we state our conlusion that there is or is
not to be liability; it necessarily begs the essential
question…the word serves a useful purpose in directing
attention to the obligation to be imposed upon the defndant,
rather than the causal sequence of events; beyond that it
serves none.”
o Breach
o Causation
o Damage
 Duty is the element in focus in Judge Cardozo’s opinion in Palsgraf v. Long
Island R.R.
 Causation is the element in focus in Judge Andrew’s dissenting opinion in
Palsgraf v. Long Island R.R.
2. Describe the critical differences between the majority and dissenting opinions in
Palsgraf.
 Judge Cardoza
o Negligence is not actionable unless it involves the invasion of a legally
protected interest, the violation of a right
o The plaintiff sues in her own right for a wrong personal to her and not
as a vicarious beneficiary of a breach of duty to another
o What the plaintiff must show is “a wrong” to herself; i.e., a violation
of her own right, and not merely a wrong to some one else, nor
conduct “wrongful” because unsocial, but not a “a wrong” to any
one...
o It was not necessary that the defendant should have had notice of the
particular method in which an accident would occur, if the possibility
of an accident were clear to the ordinarily prudent eye.
o Negligence, like risk, is thus a term of relation
o The law of causation, remote or proximate, is thus foreign to the
case before us.
o Judgment should be reversed against  and complaint dismissed
 Judge Andrews (dissenting)
o It is irrelevant to believe that where there is the unreasonable act,
and some right that may be affected, there is negligence whether
damage does or does not result.
o Due care is a duty imposed on each one of us to protect society from
unnecessary danger, not to protect society from unnecessary danger,
not to protect A, B, or C alone.
o Everyone owes to the world at large the duty of refraining from those
acts that may unreasonably threaten the safety of others
o The act upon which defendant’s liability rests is knocking as
apparently harmless package onto the platform. The act was
negligent. For its proximate consequences the defendant is liable.
o Under these circumstances I cannot say as a matter of law that the
’s injuries were not the proximate result of the negligence…the
judgment appealed from should be affirmed, with costs.
3. Who is suing whom and for what in Palsgraf? Does the railroad owe a duty of
care to the man who was trying to board the train?
 Mrs. Palsgraf () was injured on Long Island R.R. Co.’s () train platform and
she is suing them for personal injury due to negligence.
 Judge Cardoza and Judge Andrews would argue on whether the  had duty
of care towards  because of the act of negligence but since the boarding
passenger was a customer of the railroad, then yes, the  did have a duty of
care to his persons.
4. What is the rule that comes out of Nussbaum v. Lacopo?
 …Lack of due care is not demonstrated when the undisputed physical
evidence proves that it could not have been reasonably anticipated that the
harm complained of would result from the natural and probably
consequences of the act claimed to be negligent.
 The dismissal of the complaint as against both defendants at the close of the
plaintiff’s case is well founded
5. What if the accident in Nussbaum had happened in the dead of winter or if
there had been no trees along the fairway? Same result? Explain.
 Even if the accident happened in the dead of winter or with a lack of trees
along the fairway, the issue of unforeseeability still stands firm because of its
unlikely nature.
 The elements to allow the probability to rise will in fact aid in establishing an
actionable negligence claim but still the event is considered to be highly
unlikely and difficult to enforce.
6. Assume that a golfer tries to scare kids playing on the fairway by hitting a shot in
the direction of the kids, but the shot sails far wide of the area where the kids were
playing and hits plaintiff on his porch next to the golf course behind some trees.
What result?
 The individual’s intent to inflict apprehension within the kids is arguably
lacking a due care with his actions and could be actionable in a negligence
claim
 Although the intent to inflict the injury on the  is not present, the
reasonable individual would be aware that his/her actions of lack of due care
may inflict additional harm to their surroundings.
7. What is the rule that comes out of Gulf Refining Co. v. Williams?
 An action for negligence exists when the defendant incurs a risk that makes
the possibility of harm real enough so that a person of ordinary prudence
would take some action to avert the threatened danger.
8. State the famous "Learned Hand Balancing Test" that comes out of the Carroll
Towing case. What was the outcome in Carroll Towing applying that test?
9. Assume that a new drug would effectively combat AIDS in a large portion of the
affected population. However, one out of every 1,000 recipients of the drug would
be permanently paralyzed by ingesting the drug. Under the Learned Hand test, is it
negligent to market the drug? Where would the issue of the availability of
potentially effective alternative treatments fit into the Learned Hand test analysis of
this scenario?
10. Who is suing whom and for what in Krayenbuhl? What is the rule that comes out
of this case? Apply the Learned Hand test to these facts -- what result?