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?