Review the fact pattern below and:
- Prepare a memorandum of no less than two pages, but no more than four, pages
- Identify and analyze each type of damage that may be available to the client.
- Identify any other issues that may affect the client’s potential for recovery of damages discussed in this module.
- Module explanation of damages! (This is for reference as the question above states damages discussed in module, these are the damages)
- Elements of Negligence
- Breach of Duty
- Actual Cause
- Proximate Cause
We now turn to the element of damages.Why is it important?
Let’s say a prospective client comes into your office and you participate in the initial consultation with your supervising attorney. Bertha was a kind little blue-haired old lady that juries just seem to adore. She tells you that she was shopping at her favorite retail store yesterday and slip and fell because someone had spilled some water and the store hadn’t mopped or provide a warning with a “wet floor” sign. The attorney asks her if she has seen a doctor for her injuries and she tells you she has not. He then asks what her injuries were and she replied that clothing got a bit wet and her backside hurt for a few moments. She was also very embarrassed but there was nothing else. After Bertha leaves, the attorney tells you to prepare a draft declination letter. Even though there was probably negligence, he just doesn’t see that the case has sufficient economic value given the nominal damages suffered by Bertha.Even if you have a duty, and you have a breach, and even if you can establish causation, you still need to establish damages resulting from the negligent act. And just as importantly, from a purely practical standpoint, if damages are not sufficient enough, it makes no business sense for a law firm to take the case.Damages & Burden of Proof
As with all other elements of negligence, the burden is on the plaintiff to prove that the acts or omissions of the defendant resulted in damages. The plaintiff must prove the damages were caused by defendant’s negligent conduct by a preponderance of the evidence, which means it’s more likely than not that plaintiff’s damages were a result of defendant’s negligent conduct.Compensatory DamagesPolicy
Remember that the purpose of our tort system is to compensate injured parties for the losses sustained do to the fault of another person. You can think of compensatory damages as a means to try to make the plaintiff whole – to put the plaintiff back the position the plaintiff was in before he or she suffered the loss. Keep in mind that some losses may not be truly compensated. If you become paralyzed from your neck down, would money be sufficient to make you whole? Thus, while money is a rather blunt instrument of compensation at times, it is pretty much the best tool we have available in civil actions.Categorizing Compensatory DamagesGeneral Damages v. Special DamagesGeneral Damages
General damages are damages that compensate an injured party for noneconomic losses. General damages do not have a specific economic value that can be readily calculated. Examples include:
- Pain and suffering
- Physical impairment
- Mental anguish/emotional distress
- Loss of society and companionship
- Loss of consortium
- Injury to reputation
- Hedonistic damages
Special damages are damages that compensate an injured party for economic loss. In contrast to general damages, the value of special damages has itemized value that can be reasonably calculated. Examples of special damages include:
- Medical expenses
- Loss of earnings
- Loss of earning capacity
- Loss of income
- Loss of support
Past Damages v. Future Damages
Past damages are damages that have been suffered from the date of the accident to the date of the trial, while future damages are damages that are reasonably certain to occur from the date of the trial to some reasonable time in the future. For example, an injured plaintiff may be impaired from his injury for years after trial.Note that the general rule is that all future economic damages must be reduced to their present value. The rule does not apply to general noneconomic damages.Punitive Damages
Punitive damages (sometimes called exemplary damages) are awarded to punish the defendant and to deter similar behavior in the future. Thus, their purpose is not really to compensate for an injury. They are awarded in addition to general and special damages. The standard of conduct that warrants award of punitive damages will vary from jurisdiction to jurisdiction, but usually requires pretty egregious conduct such as intentional, willful, wanton or extremely reckless behavior.
Some statutes impose treble damages for violations of law. Treble damages are a form of punitive damages as they are imposed to punish and deter. Statutes will typically impose them for willful and intentional acts. (Treble means triple. If treble damages apply to an award of $100,000 in damages, the statute ups it to $300,000).Nominal Damages
Nominal damages are awarded to a plaintiff that has a valid claim but really no significant loss. A typical award of nominal damages is an award of $1.Duty to Mitigate
Plaintiffs have a duty to mitigate their damages. This means that plaintiffs must take reasonable steps to avoid future injuries. For example, refusing to undergo certain medical treatment in certain situations may be a breach of plaintiff’s duty and defendant may not be liable for damages that would have been prevented had medical treatment been pursued.