Expert answer:Legal Torts
Expert answer:Review the fact pattern below and:Prepare a memorandum of no less than two pages, but no more than four, pagesIdentify 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 NegligenceDutyBreach of DutyActual CauseProximate CauseDamagesWe 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 ProofAs 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 DamagesPolicyRemember 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 DamagesGeneral 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 sufferingPhysical impairmentDisfigurementMental anguish/emotional distressLoss of society and companionshipLoss of consortiumInjury to reputationHedonistic damagesSpecial DamagesSpecial 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 expensesLoss of earningsLoss of earning capacityLoss of incomeLoss of supportPast Damages v. Future DamagesPast 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 DamagesPunitive 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. Treble DamagesSome 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 DamagesNominal 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 MitigatePlaintiffs 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.
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Dan’s Damages
You have been asked to review a file to prepare a memorandum on the potential of
recovering damages for a new client, Dan. He’s 30 years old and was in perfect health at
the time of the accident. He was an avid outdoorsman and athlete who enjoyed jogging,
hiking, golfing, fishing and hunting. He is married to Elizabeth and is the father of Matthew,
a three year old, and Bethany who is just 6 months old. Dan is a cardiologist who just
finished his residency and accepted a prestigious position at a preeminent cardiac practice
in town.
The accident occurred during Dan’s daily morning jog. As Dan approached an intersection,
he saw that the “WALK” signal was lit so he proceeded to lawfully jog across to the
intersection. A car speeding through the intersection hit him. The driver was texting and
failed to notice the red traffic light so was moving at 25 mph.
Dan was severally injured in the collision as one might expect when a car hits a jogger at 25
mph. He suffered broken bones to legs, his right arm and his right wrist. Several ribs were
also broken. The ribs lacerated a lung. He suffered substantial cuts, abrasions and bruises.
However, the most severe injury was the damage done to his spinal cord, which left him a
quadriplegic, paralyzed from his neck down.
Dan had to undergo six separate surgeries. He spent nearly two weeks in an ICU with an
additional 16 weeks in the hospital.
Dan is unable to care for himself independently. He needs someone to dress him and assist
him in feeding and bathing. He can’t defecate or urinate on his own without surgical
intervention or someone aiding him. He is unable to engage in normal sexual relations with
his wife. He cannot engage in his favorite activities of running, hiking, fishing and hunting.
He cannot engage in any physical play with his kids or even hold or hug them. And he
cannot work as a surgeon or practice medicine. In fact, he’s now on social security
disability. Statistically speaking, his life expectancy has been shortened by more than ten
years.
Dan’s family relied primarily upon his income to support itself. His wife was a stay-at-home
mom. Now Dan needs assistant throughout the day to engage in activities that he used to
take for granted. His wife is trying to find work, but has no recent work experience. The
family is falling behind on their bills including their mortgage, car loan and student loans.
Even though the medical insurance covers most of the health care bill, the copays and
deductibles are still significant and the family is struggling to make the monthly premium
payments. It is doubtful that Elizabeth will be able to make ends meet as her income
potential is at best 33% of Dan’s. Their savings are pretty much exhausted.
Dan was informed about a new experimental surgery that may bring back some motor
function. The surgery has a success rate of 8% for restoring some gross motor function, but
about 10% of participants in the study have died in surgery due to complications caused by
their condition. Dan opts not to pursue the surgery.
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