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66 Cards in this Set

  • Front
  • Back
Objective of damages in tort law
1. Stated objective of tort law is to put the Π in the position Π would be in without the Δ’s carelessness.
What juries are told the objective of damages is
to provide reasonable compensation
What is the “victim lottery” for damages?
I’m driving my car, slightly distracted, I hit and kill Bill Gates. My fault is small but my damages are astronomic – lost future earnings, etc.
I’m driving drunk and completely erratically and I hit a homeless man. My fault is large but my damages are small or non-existent b/c no future earnings, etc…
Smith v. Leech Brain & Co. (facts)
Because of P’s carelessness, D was burned while at work. Burn never healed, developed into cancer and killed D.
Leech argues it shouldn’t have to pay damages for Smith’s death because his injury wasn’t a foreseeable result of a burn.
Smith v. Leech Brain & Co. (rule)
Leech argues it shouldn’t have to pay damages for Smith’s death because his harm/cancer wasn’t a foreseeable result of a burn. / Court rejects this argument, stating that “the question is whether these employers could reasonably foresee the type of INJURY he suffered, namely, the burn.”. Eggshell skull theory (you take a Π as you find him)
Collateral source rule
Δ does NOT get credit for money paid to Π from a collateral source, such as health insurance
Kenton v. Hyatt Hotels (facts)
Π injured by collapse of skywalk. Court allows Π's evidence about of the grisly accident, which the Δ called “inflammatory”. Was $4MM award excessive?
Kenton v. Hyatt Hotels (rule)
Standard for trial judge and and appellate review of jury award for excessiveness: Does it “shock the conscience”? Judge said "no", then reduced the award a little anyway(!). Bad judge.
Standard for trial judge and appellate review of jury award for excessiveness
Does it “shock the conscience”?
Problems with collateral source rule (& issues "on the other hand")
(1) If purpose of tort law is to put Π back in the position he’d be in without Δ’s tort, the Π is, in a sense, making money
(2) On the other hand, Blue Cross didn’t just decide to pay the Π’s medical bills; the Π has been paying premiums & deserves the benefit of that bargain
(3) It would also be troubling to reward the Δ because the Π happened to have insurance
(4) What about Πs who are covered by Medicare or Medicaid?
(a) Δs then argue that they’re being asked to compensate the Π for something the Π didn’t pay for
(5) Collateral source rule becomes particularly difficult when juries are awarding money based upon future medical expenses
New York collateral source/ future damages rule (minority)
Some states, like New York, say that a Δ does NOT have to pay the cost of future medical bills that’ll be covered by insurance, but the Δ DOES have to pay any premiums the Π will have to pay
Mitigations of damages when religous beliefs didn't allow medical treatment (Courts SPLIT: 3 rules)
Some jurisdictions won’t allow jury to know about religious beliefs at all (worse for P.)

Some jurisdictions allow Π to tell jury what her beliefs are and jury is told to use her religious beliefs as a factor to consider (worse for D).

In some jurisdictions, standard of conduct is of a reasonable person with that religious belief. You look at the specific religion’s sanctions—e.g., is taking an antibiotic just a minor religious infraction or major
When are punitive awards allowed?
Generally, punitive awards are only allowed in intentional torts, not in negligence. In negligence, they’re generally only allowed for “reckless” or “willful and wanton” conduct (aka: Wanton disregard / reckless indifference / deliberate indifference)
DEF: Wanton disregard / reckless indifference
When Def's unreasonable conduct poses a grave danger of harm to others & when Def. has reason to know of facts which would lead a reasonable man to realize that those dangers attend his conduct.
DEF: Deliberate Indifference
Requires a conscious choice of a course of action w/knowledge of the serious danger to others involved.
Is the risk of bankrupting a Δ ground for denying punitive damages?
No.
Should punitive damages fall under respondeat superior?
States are SPLIT: Some states (AK): Yes
Some others: High managerial official must've done the tort, management must have ratified the action.
When are punitive awards allowed?
Generally, punitive awards are only allowed in intentional torts, not in negligence. In negligence, they’re generally only allowed for “reckless” or “willful and wanton” conduct (aka: Wanton disregard / reckless indifference / deliberate indifference)
DEF: Wanton disregard / reckless indifference
When Def's unreasonable conduct poses a grave danger of harm to others & when Def. has reason to know of facts which would lead a reasonable man to realize that those dangers attend his conduct.
DEF: Deliberate Indifference
Requires a conscious choice of a course of action w/knowledge of the serious danger to others involved.
Is the risk of bankrupting a Δ ground for denying punitive damages?
No.
Should punitive damages fall under respondeat superior?
States are SPLIT: Some states (AK): Yes
Some others: High managerial official must've done the tort, management must have ratified the action.
3 Criticisms of punitive damages
a) Civil law doesn’t protect a Def like Crim law does (no right to an att’y, etc).
b) May overdeter behavior (make settlements so high)
c) If the point is to deter future bad behavior, why does Pl. benefit? Why not a fund for poor plaintiffs instead of enriching someone past their injury?
National By-Products, Inc. v. Searcy House Moving Co. (facts & Rule)
Trucker doesn't slow down when tunnel is blocked and kills 2 girls in a car. The court reverses an award of punitive dmgs, probably because the Δ was being punished for the reckless conduct of its employee, not its own recklessness. Tucker was probably not acting wantonly/deliberately, since he would have died, too.
RULE: Punitive damages are only appropriate where a Δ has acted wantonly or with deliberate indifference
Are punitive damages appropriate where there is massive damage done by a Δ’s conduct?
No, because the compensatory damages are likely to be huge. (Mathias v. Accor Economy Lodging)
Factors for punitive damages (Posner in Mathias v. Economy Lodging) [1 threshold requirement, then 5 factors]
--First, need intent / wantoness,
--Then the main reason to have punitive is deterrence.
-Punitive/compensatory $$ ratio can be high, if:
* Tortious conduct is profitable
* The projected compensatory is low: no Pl will ever sue, otherwise
* Def spends a lot of $/hardball litig. to Defend as an in terrorem effect
* Even as a crime, the gov’t has too few resources to prosecute
* Def tried to hide conduct
Mathias v. Economy Lodging (Facts)
Hotel bedbug case. Court allows high punitives (even though low compensatory damages) because doing so will deter Δ from continuing with its behavior.
Procedural limitations on Punitive amounts (old days)
(1) Judge was required to inform jury that they didn’t HAVE TO award punitives
(2) App Ct had strong authority to overturn punitives w/little deference to jury.
Due Process limits on Punitive Damages (2)
1) NOTICE: Def must have notice that he could be subject to a certain severity of punishment (BMW, NA v. Gore)
2) RATIO: Any punitive/compensatory ratio higher than 9:1 is probably unconst’l. 4:1 “should be normal.” But no bright line rules. (State Farm v. Campbell)
3)
Three “guideposts” to tell if Def didn’t receive adequate notice (BMW v. Gore)
(1) HOW "EVIL": Degree of reprehensibility of the non-disclosure - Gore’s life wasn’t endangered as a result of BMW’s conduct
(2) RATIO: Disparity between the harm or potential harm suffered and the punitive award - Punitive damages must bear a “reasonable relationship” to compensatory damages
(3) COMPARABLES: Difference between this remedy and the civil penalties authorized or imposed in comparable cases
State measures to limit damages (pre-BMW v. Gore) [4 different statutes]
1) ABOLISH punitives under common law, unless authorized by statute;
2) Set a CAP on punitive damages;
3) Requires substantial portion of punitive damages to be paid to the STATE; or
4) Set heightened std of PROOF.
Can you collect punitives based on Def's conduct towards other people?
No. You can’t punish for conduct directed at other victims. You can allow testimony about conduct directed at others, but only as evidence of Def’s shittiness (Cigarette Cases)
DEF: True Joint Tortfeasors
Those acting in concert or as partners are subject to Joint and Several liability. (General rule today in most jurisdictions)
DEF: Concurrent Tortfeasors
People who act independently tortiously, and whose independent acts combine to form an indivisible injury. Many jurisdictions limit Joint & Several liability for these types.
Three classical justifications for Joint & several liability
1) The law should favor the Π, who is innocent, over Δs, who are culpable
2) For true joint tortfeasors, Δs are working in concert and each should be fully liable for the damages
3) Traditionally, injury was thought to be indivisible, and if D is in any way liable, D should be liable for the whole thing b/c it can’t be divided up (Comp. Fault really undermines this justification)
Ravo v. Rogatnick (facts & rule)
Reetee baby, pediatrician assigned 20% of fault, 80% to OBGYN. Ped is stuck with the bill under J&S liability. Ped argues he shouldn’t be jointly liable for 100% b/c the jury was able to split the fault (for contribution purposes) so why not split the damages/injury?
RULE: Court says that two CONCURRENT tortfeasors can be jointly and severally liable for damages even if they weren’t acting in concert.
- injury divided for contribution purposes doesn’t affect rights between PL and Defs, just among the two Defs. (One Def can sue other for contribution in restitution)
Hypo: Car driver broke P’s rib. Then Doctor punctured P’s lung by mistake. Rib: $50K, Lung: $60K. Who is liable for what?
Two torts didn’t concur to cause an indivisible injury.

1) Division is jury question, but could find that driver’s negligence was the proximate cause of the whole thing and could be liable for 110K OR,
2) Doc could be liable for Lung and driver For the Rib. OR
3) Jury could find driver J&Sev'ly liable for the Lung and then solely liable for the rib
Hypo: A hits Pl. Before Pl can be dragged out of street, B hits Pl, too. 5 broken ribs. No way to tell who caused what damage (too "close in time"). Who is liable?
When conduct is so close in time, courts will always impose J&S liability.

1) A would probably be liable for all ribs.
2) B's att’y would say “fewer than 5 ribs, b/c A must have done some harm & it should be on the Pl. to prove who did what, but would still be J&S liable.
If tortfeasors are independant and injury is indivisible, will J&S liability be applied?
Courts are SPLIT (Ravo said yes)
But no dispute about joint & several liability w/ true joint tortf’s.
were the Def's Summers v. Tice joint tortfeasors?
D's don’t fall into either J&S category (no concerted action or no conspiracy AND no combination of torts, since one hunter did nothing). So court went with alternative liability.
Can Absent or Judgment-Proof Defendants be found liable by a jury?
Yes, b/c their interests are being represented by present parties:

- When one of the Δs in a case is missing, it’s in the Π’s interest to argue that the missing Δ wasn’t too careless because the Π cannot recover from that absent Δ
- Δ’s interest to argue that the absent Δ was entirely careless because if most of the fault is apportioned to the missing Δ, then if the jurisdiction doesn’t use J&S liability, the present Δ can get off the hook.
Bartlett v. New Mexico Welding (facts)
- Three cars, driver in first car (never found) swerves, Truck (last vehicle) hits P (in middle car). Def Truck driver is found partially liable. Question is whether Def should be liable for just the percentage fault he was apportioned (30%) or all of it (joint & several).
Bartlett v. New Mexico Welding (Holding)
1) Court rejects J&S liability when P had comp. fault.
2) If a court can apportion fault, it can also apportion damages/split injury
3) Ct will consider the missing D’s fault, and since there is no J&S liability, the present D is only responsible for their %.
NM rule (Bartlett v. New Mexico Welding)
No joint and several liability where comparative fault (P has some fault) is found
Ravo Rule
J&S liability OK for joint tortfeasors not acting in concert if damages are indivisible.
New Jersey approach to J&S liability
If D is over 60% liable, he is liable for other plaintiffs (J&S)
PLUS, Modified Comparative Fault rule: If Pl. is more than 50% negligent, can’t recover.
New Jersey approach to missing Def
Jury need not allocate fault to “missing person”/non-party to suit, because the NJ statute says that fault is to be apportioned between “parties”
- Policy reason: when Def best knows who the missing person is.
New York approach
If a Δ is <= than 50% responsible, then it is still J&S liable for all econ damages, but is only liable for his own % of non-econ damages (i.e. pain & suffering)
Uniform Comparative Fault Act (MA, other states)
J&S liability OK, but if there’s any D whose shares can't be collected, the missing “share” is borne by all liable parties according to % of how liable they are:

Ex: Pl against A (45%) , B (10%), C (45%) OF 100k. C is bankrupt.
- B is liable for his % part of C's “missing share”: So, 45/55ths of the missing 45%.
Is Andrew Goldstein a victim?
Turnip
Bencivenga v. JJAMM, Inc (facts and rule)
Facts: NJ Guido all-ages club. Guy gets the shit beat out of thim by bouncer's buddy.
Rule: NJ approach (see other card)
- Δ has more information about who did the beating than the Π does. If liable, D. has more incentive to find tortfeasors who will have to pay part of judgment.
Where P cannot sue one liable Def (Workers Comp), what are the implications of allowing D to implead shielded D2?
Courts SPLIT
* If we don’t let Def implead D2, then are we holding Def 100% resp. for the injury?
* If we do allow Def to implead, are we undermining worker’s comp laws?
Old contribution rule
Back when injuries were considered indivisible, if there was more than one Δ, each of whom fully liable, the court allowed the Π to collect from any Δ it wanted. The Δ had no right of Contribution against another Δ.
2 Problems with old contribution rule
Obviously, a lot of Δs disliked this rule because sometimes one Δ was much more at fault than another

Another problem is that sometimes Πs will extort money out of one Δ
- E.g., Π says to defendant A if you give me $25,000 I’ll collect the entire $1 million judgment against defendant B
Way damages are split between multiple D's today for contribution
Apportionment based upon the responsibility of each Δ (using Comp. Fault theory).
Can there be contribution between negligent and intentional tortfeasors?
Some jurisdictions don’t allow it.
2 limits on contribution
1) You can never make someone pay more than their share.
2) And you can never collect more than you have overpaid by,
Contribution in a Comp Fault jurisdiction with J&S liability:
- P sues D1 and D2 for $100,000 damages. P is 10% responsible, D1 30% and D2 60%
- P decides to collect the $90,000 judgment from D1
How much does D2 owe and to whom?
D1 was only liable for $30,000, so D1 can recover $60,000 from D2
3 Δs, each 25% responsible (Π 25% responsible) in a Comp Fault jurisdiction with J&S liability. All Δs together responsible for $300K of a $400K judgment. What if entire judgment is collected from D1? What can D1 do if one of the other Δs is bankrupt under the *Proportional approach* (to contribution when one defendant is judgment-proof)?
D1 can Sue remaining Δ for only $100,000 (1/3 of total)
- D1 will still have paid 100K more than its fair share, but it can still attempt to recover one of the additional Δ’s share
3 Δs, each 25% responsible (Π 25% responsible) in a Comp Fault jurisdiction with J&S liability. All Δs together responsible for $300K of a $400K judgment. What if entire judgment is collected from D1? What can D1 do if one of the other Δs is bankrupt under the *Uniform Act approach* (to contribution when one defendant is judgment-proof)?
If one party cannot contribute anything, then we divide that person’s share among parties that can pay
- So if the bankrupt party’s share were $100,000, we would divide that by three and the other two defendants and the plaintiff would each pay $33,333
Pl gets hurt at work (100K damages) sues mfg. Jury says that employer’s resp. is 60%, mfg 40%. J&S liability in this state. Workers’ comp says that employer pays 10K to Pl. How much can Pl collect from Mfg?
a) Is Mfg responsible for 40K or 90K (100 – 10K) at the start?
b) If 90k, can Mfg get 50K from Empl in resititution?
TKTKTK
Courts SPLIT
NY: Yes, mgf can get contribution. (you are making an end run around Workers Comp. But if not, that’s pretty harsh to Mfg.)
Hypo: Π sues A and B in jurisdiction with contribution and J&S liability
- Π settles with A for $10K
- Jury says A was 60% and B was 40% resp. Damages = 100K

Can court make B pay 90K & get contribution from A?
No. No states do this, b/c there would be no incentive to settle.
Hypo: Π sues A and B in jurisdiction with contribution and J&S liability
- Π settles with A for $10K
- Jury says A was 60% and B was 40% resp. Damages = 100K

What is the Pro Tanto approach, and what 2 problems does it cause?
Subtract out settlement and make B pay the $90K
- B is paying more than fair share
- A’s settlement hurts B.
- Also, the worse Pl is at settling the more B pays.
- A few states have adopted this rule as long as settlement is made in good faith (which is always litigated)
Hypo: Π sues A and B in jurisdiction with contribution and J&S liability
- Π settles with A for $10K
- Jury says A was 60% and B was 40% resp. Damages = 100K

What is the Uniform Act approach and one problem with it?
Subtract settling D’s jury-decided share, not actual amount of settlement.
- Settling D’s share was 60%, so we decrease damages by 60%. B is now liable for $40K.
- Problem: if the settling D overpays, Pl gets a windfall, because only "proper" share is subtracted.
Hypo: Π sues A and B in jurisdiction with contribution and J&S liability
- Π settles with A for $10K
- Jury says A was 60% and B was 40% resp. Damages = 100K

What is the NY approach and one problem with it?
Jury determines damages and allocates responsibility between D's, then Judge subtracts the larger of settlement OR settling D’s share.
- This reduces the problem of settler overpaying and Pl. getting windfall.
- Problem: No incentives for Π to settle.
New York approach Hypo: Π sues A, B and C in New York jurisdiction
- A is 25%, B 50% and C 25%
- Π settles with A for $20K
- Jury verdict is for $40K

How much can Π get from C? How much can C get from B?
1) Court subtracts $20K from the damages, so now award is only $20K. Π can get $20,000 from C.
2) C can only get $10,000 from B (B is only 50% responsible – C gets screwed