October 5, 1998

Compensatory damages (not taxable)

Types:

Special: tangible, economic

General: intangible, pain and suffering, emotional distress

Pain and suffering awards = excessive

Dealing with excessive awards

Remittitur

Ceilings on awards

Single judgement versus periodic review?

Determining future cost earnings

Inform jury re non-taxability

Deduct work related expenses

Discount to present value offset by litigation

Two purposes for damages:

1. compensate plaintiff for losses involved
2. deter defendant from additional negligent conduct in the future (not punishment: not usually punitive damages)

must show evidence of damages by preponderance of evidence

tangible losses

intangible (pain and suffering, emotional, consortium, etc…)

Seffert v. Los Angeles Transit Lines

Why not allow a per diem argument?

• speculative, hard to know what is actual pain and suffering
• hard to know what a person’s life expectancy is

most states do permit arguments on per diems – say it is as good a way of any

can juries look at prior damage awards?

• yes
• gives jury something to compare to
• but it is hard to find comparable cases that are real close to current case

what can court do re pain and suffering?

• remittitur – decrease award if court thinks it is too much
• addittur – courts can increase awards if they think they are not enough

there are books that list injuries and assign dollar amounts to each injury

should juries be told compensatory damages are not taxable?

• depends on the jurisdiction
• different ways depending on state, jurisdiction, etc…
• have to determine how many years plaintiff would likely have worked.

special damages (will not be tested on this)

• invest money prudently
• costs that will be incurred because person cannot do household chores

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October 7, 1998

McDougald v. Garber

Pain and suffering damages:

Gr: some level of awareness (McDougald p613

Maj: loss of enjoyment or life – not separate from P&S

Exc: contra

Death of P or D

CL: ended

Wrongful death in a personal injury action? - no by getting recovery in personal injury you forfeit any future suits

Exam practice questions review

Make sure to read the question extremely carefully.

Boob-tube burglar question.

Did Al Catraz have a duty to warn?

Was this an act or omission to act? -

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October 14, 1998

Charlie Brown suffered physical injuries first. So then there is no problem with recovering for emotional damages. Because there was a real physical injury/

What we are doing today the emotional injury is first, and then P suffers physical injury later, as a result of the emotional injury.

Common law did not allow recovery for emotional distress. Underlying reason is because court was concerned about fraudulent claims. Also were afraid there would be a ton of cases brought forward.

Two exceptions: conduct which is so egregious which there courts feel can not be fraudulent. 1. Mishandling a corpse (negligent embalming and shipping a corpse, running over bodies, substituting wrong bodies at funerals) 2. Mistakenly notifying a person that a loved one has died (usually in the form of telegrams).

Impact rule: recovery permitted if D conduct caused some physical injury on the plaintiff’s body. Impact very vague: dust in eye, x-rays, horse evacuating bowels into P’s lap are all sufficient examples of "impact."

Zone of danger – must be in zone of danger to recover.

Dillion factors:

• proximity (be close to area) – near rather than distance away
• see the accident yourself – sensory and contemporaneous perception v. learning from others after accident
• also have to have a special relationship with victim – close relationship v no relationship

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October 19, 1998

TWO STANDARDS FOR RECOVERY FOR EMOTIONAL DISTRESS (BYSTANDER)

Portee v. Jaffee

• observation at scene of accident
• marital or intimate family relationship
• death or serious injury of victim
• recovery was allowed because all guidelines were satisfied

Dillion guidelines (must meet all requirements)

• P near scene v distance away
• Sensory contemporaneous observance v learning from others after accident occurred
• Close relationship v. distant or no relationship

Thing (current law in CA) can only recover if meet all 3 requirements:

• P has to be at the scene and then aware of the accident
• Absent special circumstances, P had to be a relative living in the same household, or grandparents of victim

Watch incident on TV:

• not near scene
• do not know for sure person is in fire, only watching the fire
• there is a close relationship, but does not satisfy above two factors

some jurisdictions look at foreseeability,

a majority of states do not allow recover in a indirect, bystander case

Johnson v Jamaica Hospital

• wanted to limit liability
• hospital did not owe parents a duty
• child was able to recover

Loss of consortium

• common law, recognized a right of action of a master when a servant is injured by a tort, because he would no longer have the services
• in 1690s husband had a right to wife’s services
• this was eventually expanded to sexual actions, from just cleaning, cooking, etc..
• married women’s act changed this 1950, made it so wife could claim loss of consortium for husband
• most states allow recovery to both spouses, a few states do not allow either party to recover
• courts require both the physical and loss of consortium claim to be brought together
• in CA cannot recover for loss of consortium for a non married spouse.
• Also can have loss of consortium for children (loss of services)
• Children cannot recover for loss of a parent (most jurisdictions)

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October 21, 1998

Wrongful life, wrongful birth

Originally no recovery under common law, but has been expanded now

Act or omission by defendant to act causes birth of an unwanted child. The child would have never been born at all.

Called wrongful birth when charges brought by parents

Called wrongful life when charges brought by child

Hard to weigh damages between a child with birth defects, v if the child had never existed.

Duty owed because of pure economic loss

• economic harm that is not linked to personal injury or property damage.
• General rule: professionals are liable (privity) between themselves and client, but not to 3^rd parties not in privity
• Many cases have arisen out of mistake by accountants, attorneys, doctors,
• Can a client recover for emotional distress because an attorney failed to file the claim before the statute of limitations ran out? General no, unless there are extraordinary circumstances
• How about if a physician negligently understated amount of injuries, and caused the person to ask for less money in a suit? Yes there is a cause of action, as P was relying on doctor.

Controversy in this area is in regard to third parties.

Three criteria:

1. awareness by maker of the statement that it is to be used for a particular purpose
2. reliance by a known party on the statement in furtherance of that purpose
3. some conduct by the maker of the statement linking it ot the relying party and evincing its understanding of that reliance

3 types of ways to approach this:

New York -

California – specific foreseeability, balance of factors tests (balance the Rowland factors), professional may be liable if he know that a specific third party is going to rely on the information, and that the professional knows the extent in which the information will be used.

New Jersey – modified foreseeability, professional just had to know the class of persons, not specific persons that might rely on the information.

Do the Sammy Sosa practice exam and turn it in to her.

Make sure you balance every statement (both sides of the argument)

Divide answer into the elements of cause of action for negligence

Don’t combine causes of action, do what she tells us to do.

Be careful of timing. Be sure to pace yourself.

Avoid repetition. Just say thing are the same if they are the same.

Don’t use rhetorical questions (can the plaintiff recover in this case?)

Make sure you put plaintiff’s conduct in defenses (does not go in prima facie case)

Foreseeable plaintiff – make sure you discuss Andrews and Cardoza views. Make sure you explain it at least once.

Make sure you balance (such as using Hand formula)

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October 26, 1998

Pure economic loss

• no common law recover without personal injury or property loss
• this is still the majority rule
• exception: a professional that is in the business of giving out information, person relies on info, etc. need to have a generally foreseeable third party plaintiff., must have reason to know P might suffer.

Courts are reluctant to give damages when there was no property or personal injury. Would allow limitless liability.

A train car with a dangerous chemical had a leak. Had to evacuate area. People Express sued for loss of profits (airline reservations)

• courts said there could traditionally be no recovery without physical harm – this was an effort to limit liability
• PE argued that it was foreseeable that if the negligence occurred, they would have to evacuate
• Wanted to deter negligence and make sure if someone operating with dangerous chemicals should pay for the harm
• The court synthesized the rules, and then came up with a new general rule.
• Court decided PE could recover damages
• Factors used were:

> Type of persons or entities

> Predictability of presence (of P)

> Approximate number of people that might be in the class

• New what economic damage might be suffered

Can passengers recover for economic losses? NO (split actually. Some say yes)

• passengers are not predictable as to who they are
• not foreseeable exactly who they are
• courts are split if passengers can recover
• how about passengers without reservations, business travelers?

fairness to defendant, morality, common sense must be considered when deciding damages

ACTUAL CAUSE

• plaintiff’s burden by preponderance of evidence

but for

• concurrent cause = 2 or more negligent acts combine
• concurrent but for cause: when two or more people cause injury, they can both be held responsible. Either one could have caused the damage in an of themselves.
• If anyone of them been enough to cause them, this is substantial factor. NEED To KnOw tHE DIFfENCE

substantial factor

• reasonable certainty test – stubbs p294
• Stubbs case: contracted Typhoid fever from contaminated city water
• Court said plaintiff needed to show that he contracted the fever with "reasonable certainty" that the cause P was suggesting was the actual cause of his illness.
• Unlighted stairs: hard to know if the darkness was to blame for person falling down the stairs.
• Kid on vacation in hotel and suffers saminila poisoning: look if people got poisoned from the hotel, did not eat anywhere else during incubation period.

Key to success is analysis

Apply law to the facts – make sure the two are linked together

Don’t just give law and then facts separately

Figure out what the issues are

Don’t be too wedded to the IRAC method. Don’t always need to say what the issue is because it should be clear from the analysis.

Make sure you always tell fact that leads to the conclusion. Always say WHY – this will link the facts and law

• Do some kind of outline or grid before start writing the answer
• Don’t make the detail too detailed
• Watch the time carefully
• Make sure you leave enough time for last question
• When talking about breach, make sure you balance it!
• If talking about a statute, go through all steps to see if it applies
• Don’t analyze issues which are not there – don’t do issues which are not on the exam (ex: emotional distress, if not mentioned then don’t mention it in answer)
• Does not expect us to write down all the cases on exam
• Palsgraf, emotional distress cases (Dillion, Portee, Thing), Tarasoff THESE ARE CASES WE SHOULD REMEMBER NAMES OF
• Think about testable issues – what is likely to be on exam
• Exam is essay, no multiple choice, three house, closed book.
• Plaintiff can usually make a lot of arguments on her exams. Usually her exam is pro-plaintiff. D may make case when they get to defenses
• Don’t worry about grammer or typos too much.

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October 29, 1998

Common law cause

Need actual but-for causation. In most exams but for cause will be present

Periodic tests – damages for medical expenses were requested

Loss of chance or opportunity

GR: no recovery unless more likely than not that D’s negligence increased loss of chance

EXC: some courts medical context – recovery if substantial chance of survival – Falcon – p.300

Medical surveillance

Emotional distress from fear of future harm with physical manifestation.