Damages

compensatory

“out-of-pocket”

lost wages

medical costs

single recovery

• one-time recovery, no future awards

• easier to do administratively but harder to predict whether the award will be sufficient.

future loss

npv (riverway)

general (“non-pecuniary”)

pain + suffering

loss of enjoyment

awarded separately? (McDougald)

why?

“compensation” (McDougald)

deterrence

pseudo-U.K. rule

limitations on general damages

additur

remittitur

statutory ceilings

comparable cases (Duncan)

collateral source rule

justifications (Harding)

subrogation

wrongful death

beneficiary’s action/damages

defenses vs. decedent + beneficiary

survival actions

Damages suffered by decedent

medical/p+s

all econ. losses in some states

-punitive

why? (Kemezy)

standard

recklessness

knowledge of particular danger

calculation re: likelihood of liability

due process limit (State Farm)

(1) degree of reprehensibility

(2) disparity between harm suffered and punitive award

(3) diff. between punitive award and civil damages in comparable cases

Defenses + Limited Duty

contributory neg.

complete defense (Butterfield)

causal showing required! (Gyerman)

justification?

Harshness, and consequent reluctance (Beems)

exceptions

d’s breach of safety statute

intentional tort

comparative neg.

“pure” vs. modified

negligence vs. causation

based on what?

jury/judge must assign percentages

why comparative vs. contributory?

Defenses + Limited Duty

assumption of risk

express

implied

conscious taking of unreasonable risk (Murphy?)

conscious taking of reasonable risk (Murphy?)

pure emotional loss

common law bar

impact rule

zone of danger

Dillon rule

(1) physical proximity

(2) temporal proximity

(3) relationship

Defenses + Limited Duty

duty of rescue

common law – very limited

def. causes the danger

direct risk creation (Montgomery)

reliance

special relationship

landlord-tenant, psychiatrist-patient (Tarasoff)

Requires visible risk

Landowners

invitees: reas. care

licensees: warn of hidden dangers only

trespassers: no wanton injury

exception: attractive nuisance

Products Liability

Historical development

Contractual privity (Winterbottom)

Effacement of privity rule -- imminent or inherent dangerousness (Thomas v. Winchester)

Negligence (McPherson)

Elimination of privity rule

Contemporaneous development of warranty theory

Rise of SL

Elaboration of warranty theory

Liability of immediate seller

Liability past immediate seller for impure food

Escola (Traynor concurrence) -- justifications for SL

SL via warranty (Henningsen)

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