Compensatory/Actual--Puts the P back where he was before the injury occured

Punitive--Purpose is to punish the D for really bad conduct

Nominal--May be recovered to justify Punitive damages?

Categories and types of Compensatory/Actual damages

Tangible Damages

--Lost Income

--Property Damage

--Medical Care

--Economic Damages

--Services Needed as a result of injury

--Services lost as a result of injury

Helps determine:

-Earning ability of P

-Future expenses of P

-Discount to present value

-Enjoyment of life

Categories and types of Compensatory/Actual damages

Intangible Damages

--Pain and Suffering (from physical pain)

--Mental Distress (psychological)

--Fear before the injury

--Anguish and Loss Afterwards

--Disfigurment

--Loss of Enjoyment

Must have a close relationship to the victim (usually family)

--Consortium (if the victim lives)

--Grief (if the victim dies)

--Third Party Bystander Claim (Subject to limitations)

Payments to P from other sources (like insurance) are not factored into damages.

Evidence of such payments are not admissible.

Reason:

The D should not get a windfall just because the P was responsible and had good insurance.

Medical Costs:

Should D pay what the hospital charges or what the insurance company would pay?

Lost Income:

Should D pay the pre-tax or post-tax amount of lost income?

All future compensatory damages must be discounted to present value.

How do you calculate the future cost of medical treatments?

How will the victim's income generating potential increase over time?  How do you calculate this?  

How do you calculate life expectancy?  Should issues like smoking affect the calculation?

Issues in Computing Intangible Losses

Where Victim Lives

Intangible damages are not discounted to present value.

To recover for pain and suffering or emotional distress the victim must have been alive to experience them.

What about the victim's level of consciousness?

What is the value of lost consortium?

Issues in Computing Intangible Losses

Where the Victim Dies

Intangible Losses are Not Discounted to Present Value

A victim's intangible losses (if allowed) will be included in a survival action. 

Third party losses are included in a wrongful death action.

Statute is critical in determining what is recoverable.

Some Jurisdictions have a total bar on punitive damages.

Some Jurisdictions cap punitive damages based on:

--Ratio to actual damages

--A set dollar figure

When might Punitive Damages be available?

Not allowed for mere negligence.

Generally allowed for:

Recklessness shown by:

--A disparity between accident cost and safety cost

--Malicious, willful, or wanton behavior (hard to define)

Intentional Torts

Burden of Proof is higher

A separate trial just for the punitive award

J/S over whether punitive damages may be recovered from his estate.

Who are you punishing if the wrongdoer is dead?

Joint and Several Liability does not apply to punitive damages. 

Damages must be individualized based upon:

--whether to grant an award

--the amount of the award

Deterrence:

--If D is very wealthy the award must be high enough to hurt.  P may be able to introduce evidence on D's wealth.

Retribution/Just Deserts:

--Accounts for a large difference in the amount of risk the conduct created vs. relatively small actual damages

Totally bar punitive awards since actual awards will be so large.

Declining recovery so that early cases get big punitive awards and later cases get smaller awards.  Lets early cases benefit from putting in most of the hard work.

Pro rata sharing among victims