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Damages Outline

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This is an extract of our Damages document, which we sell as part of our Torts Outlines collection written by the top tier of Harvard Law School students.

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Damages I.

Thin-Skull / Thin-Hull a. Rule i. Even if the extent of harm was unforeseeable, if D is otherwise liable:

1. American / Pre-Wagon Mound English Rule: D responsible for all derivative damages ("thin-hull rule")(Polemis).

2. Post-Wagon Mound English Rule: D only responsible for the derivative damage that was foreseeable, even if unforeseeable damages were direct (Wagon Mound). a. Both countries still use thin-skull rule for bodily damages (Vosberg). b. Analysis i. The U.S. is consistent in assessing property and bodily damages; if some harm was foreseeable, D is responsible for the foreseeable type of harm that results. ii. The U.K. differentiates between unforeseeable bodily damages (D liable for all) and property damages (D liable only for foreseeable ones). c. Cases i. Vosberg v. Putney (Wis. 1891, 4): D who intended to lightly kick P during class and whose kick caused P's leg to fall off liable for all damages that resulted from battery. ii. In re Polemis & Furness, Withy & Co. (Eng. 1921, 515): D knocked down board, which caused fire and sank ship; since D could foresee that some harm would result, D liable for entire damage.

1. Note: this is taken more as a "directness" standard than a "foreseeability" standard and was overruled in England by Wagon Mound. iii. Petition of Kinsman Transit Co. (2d. Cir 1964): D liable for ship driving and creating dam since D would be liable for just the harm of negligent tying of ship. iv. Squibs

1. Smith v. Brian Leech & Co. (Eng. 1962): despite Wagon Mound, D liable for splashing molten liquid on P, causing cancer.

2. Steinhauser v. Hertz Corp. (2d. Cir 1970): D may be liable for hitting P, triggering schizophrenia.

II. Derivative / "Parasitic" Losses i. Derivative losses include:

1. economic losses: a. medical expenses; b. past lost wages; c. lost future earning capacity; i. note: this is capacity, and is therefore subjective; d. custodial care; e. incidental economic consequences; f. property damage.

2. non-economic losses: a. pain and suffering; i. only with cognitive awareness (McDougald); covers:

1. loss of enjoyment of the pleasures of life;

2. emotional distress;; b. wrongful death; i. only by statute; attempts to put beneficiaries, "heirs at law," in as good a place as they would have been had victim survived;

1. covers hospital bills, emotional damages, support for beneficiaries, etc.;

2. reducible if P or beneficiary was negligent; c. survival of action; i. attempts to put victim's estate in as good of a position as if the victim had died a natural death; ii. covers victim's medical bills as damages, plus gross future earnings minus expenditures, including for family;

1. note: Ps are compensated for loss of enjoyment if they die, but not if they are unconscious; d. loss of consortium.

3. other cognizable damages: a. wrongful conception; i. note: R.I. allows men to receive loss of consortium for this; b. wrongful birth; c. wrongful life; i. only two states allow this: N.J. and Cal.; d. wrongful adoption.

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