Check Sound Check Mike Time Today’s Lecture: Torts 1. Damages 2. Things you can sue for (“causes...
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Transcript of Check Sound Check Mike Time Today’s Lecture: Torts 1. Damages 2. Things you can sue for (“causes...
Check Sound
Check Mike
Time
Today’s Lecture:
Torts
1. Damages
2. Things you can sue for
(“causes of action”)
Lecture Organization:
• Class Announcements
• Review
• Introduction to Torts
Time
• Introduction to Non-intentional Torts
• Tort Damages
• Intentional Torts
Class Announcements
1. Your Paper
-- how many of you have your subjects lined up?
-- how many don’t?
(pay attention to the deadline in the syllabus)
2. Web lectures are behind. They will be current by the time you return from break
3. Next quiz will be posted after break. (Most likely will have one big one before the final)
Class Announcements
4. Your midterm
-- not really my fault -- job interviews have not allowed it
-- but let ask you a question …
what if we do this …Questions:
How many of you are pissed that I don’t have it
graded yet?
Question:
What do you want as compensation?
Answer:
I can’t give you higher grades,
because that would turn the class into a
carnival.
Paper Deadline
Any Questions?
Pre-final quiz
Due Date
Time
Review
1. We just finished contracts
2. Basic Ideas:
Importance of the writing
Limited, “stingy” damages
1. foreseeable result
2. mitigation
3. limited to market concepts:
-- no emotional damages
-- no punitive damages
Morality of breaching
Time
Introduction to Torts
1. the goal of this part of the course
-- educate you about the basic rules of common legal transactions
-- what interests or concerns the subject matter actually addresses and how it does so
-- and what incentives or behavior might result from lawyers that have to bring these kinds of cases
-- we just finished contracts, now we are doing TORTS.
2. the term “tort”
-- simply refers to an injury lawsuit. (automobile accident. Medical malpractice) [mention the yellow pages]
Introduction to Torts
2. Let’s begin with a very important question:
-- each one of you, right now, are under a duty not to negligently or intentionally injure each other
(note that this has nothing to do with criminal laws, which also apply).
3. Another major question
4. One more big question
-- mostly, lawyers will not file the lawsuit unless there is insurance
Question:
What is the basic difference between tort and contract
DUTIES? Question:
What is the basic difference between the RISK of breaching
contracts versus the risk of committing a tort?
Answer:
Contract duties are bargained for; tort duties
are IMPOSEDAnswer:
For torts, the breach is generally INSURED
Question:
What is the basic difference between the CONSEQUENCE of violating a contract versus a
tort duty?
Answer:
Tort damages are generally much, much
more expensiveTime
Tort Damages
1. There are three basic types of tort damages:
Economic
Non-Economic
Punitive
Sum certain
Example:
•“pain and suffering,”
• mental anguish
punish and deter
Economic Damages:
• Lost wages
• Medical Bills
• Cost of Therapy
• Lost Earning Capacity
Economic Damages:
• Lost wages
• Medical Bills
• Cost of Therapy
• Lost Earning Capacity
Past Future
Economic Damages:
• Lost wages
• Medical Bills
• Cost of Therapy
• Lost Earning Capacity
Past Future
Hypothetical:
A is a middle-aged doctor in Morgantown. B is a Pennsylvania student attending West Virginia University, the place with the especially good football team. One day, B is drunk and rams his car into the rear end of A’s car. A is paralyzed for life.
What are the damages so far?
Economic Damages:
• Lost wages
• Medical Bills
• Cost of Therapy
• Lost Earning Capacity
$200,000
$200,000 ?
…………………………………….
…………………………………….
…………………………………….
$50,000 ?
……………………
Nothing this year
$450,000Note that this is economic loss ONLY for a fixed point in time.
Past
Economic Damages:
• Lost wages
• Medical Bills
• Cost of Therapy
• Lost Earning Capacity
$4 million…………………………………….
Now let’s go into the future: Futur
e
• 20 years left before age 65 (retirement)
• 200,000 x 20 = $4 million
Economic Damages:
• Lost wages
• Medical Bills
• Cost of Therapy
$4 million
$200,000 ?
…………………………………….
…………………………………….
Now let’s go into the future: Futur
e
Question:
How will you know if future medicals are really
needed?
Answer:
Hire an expert to testify that they are
needed
Question:
What if more or less is needed than is
determined by the Court
Answer:
You are out of luck; you only get “one bite
at the apple”
• Lost Earning Capacity
Economic Damages:
• Lost wages
• Medical Bills
• Cost of Therapy
$4 million
$200,000 ?
…………………………………….
…………………………………….
Now let’s go into the future: Futur
e
• Lost Earning Capacity
…………………………………….
$50,000 ?
……………………
$2 million
$6.250 million
Economic Damages:
$ 450,000
$6.25
………………….
…………………….
$6.7 million
Current Economic Loss
Future Economic Loss
Non-Economic Damages:
• Pain and Suffering
• Mental Anguish
• Emotional Distress
• Loss of Consortium
Pain logs or diaries
E.g., living with a scar
Question:
What on earth could this be that the other are not?
Answer:
This is counseling for depression, anxiety, etc. (I’ll explain the
relevance of this in a moment)
Non-Economic Damages:
• Pain and Suffering
• Mental Anguish
• Emotional Distress
• Loss of Consortium
Sex
ServicesSociety
Self explanatory
………………
………
(Cooking examples)
………
Conversation, comfort
Non-Economic Damages:
• Pain and Suffering
• Mental Anguish
• Emotional Distress
• Loss of Consortium
• Loss of Enjoyment of Life
E.g., can’t play tennis anymore
Note that this is non-economic loss ONLY for a fixed point in time.
Past
Non-Economic Damages:
• Pain and Suffering
• Mental Anguish
• Emotional Distress
• Loss of Consortium
• Loss of Enjoyment of Life
You also are entitled to these things in the future.
Past Future
Question:
Who ultimately decides whether to award any
money for these things?
Answer:
Edith.
Question:
Is there a limit to what they can award?
Answer:
Consult your state’s tort reform laws, if
any.
Non-Economic Damages:
• Pain and Suffering
• Mental Anguish
• Emotional Distress
• Loss of Consortium
• Loss of Enjoyment of Life
Past Future
The “rule of thumb”Lawyers have a rule of thumb for valuing the non-economic side of a personal injury case
2 – 4 times the “specials”Take the economic loss and multiply it by 2, 3 or 4 (probably 3), to valuate the non-economic loss
Our Example:
$ 450,000
$6.25
………………….
…………………….
$6.7 million
Current Economic Loss
Future Economic Loss
Non-economic loss ………………………….
X 3
$20.1 millionQuestion:
Are we done yet?
Question:
What if a poor person is injured? What if it is a clerk
at McDonalds?
Punitive damages
Purpose: punish and deter especially bad conduct
Question:
How much money should be given to punish and deter? What do you
base your decision upon?
Answer:
• The net worth of the wrongdoer
• in relation to the wrong committed
Tort Damages
2. Basic differences between tort and contract damages:
-- not limited to property or market concepts (include emotional stuff).
(This means that subjective complaints may be compensable)
-- not limited by reasonable foreseeability of the “wrongdoer”
-- “you take your plaintiffs as you find them”
-- whatever reasonably flows from the wrong must be paid for (not whatever you could reasonably foresee happening)
Thin-Skull Rule
Example: punching a fragile person
Tort Damages
-- the duty to mitigate doesn’t work the same way [explain]
Time
Intentional Torts
-- The question now is: what kind of conduct will allow you to sue for these damages?
-- There are two basic kinds of torts:
Intentional Non-intentional
• Negligence
• Strict Liability
Intentional Torts:
BatteryAssaultFalse ImprisonmentLibel/DefamationConversion of Property/TrespassFraud/MisrepresentationInterference with Contractual RelationsAbuse of ProcessMalicious Prosecution
Unpermitted touching
Fear of immediate batteryConfining your free movement
against your willConcerns something untruthful
that injures your reputation
Property torts. One is for personal property; the other for
real estate
“Other”
Any outrageous conduct producing severe emotional
distress
Usually requires psychological counseling of some sort to
recover damages
Lost wages
Medicals
Rehab
Earning Capacity
Punitives
Pain & Suffering
Mental Anguish
Consortium
Emotional Distress
Question:
If your neighbor defames you, what are your damages. Let’s say he says that you beat your wife?
Intentional Torts: Two important
points-- Many concepts concern physical injury only
-- emotional distress is for those torts that do not physically injure, but cause strong psychological discomfort
Lost wages
Medicals
Rehab
Earning Capacity
Punitives
Pain & Suffering
Mental Anguish
Consortium
Emotional Distress
Question:
If one of your classmates slaps you in the face on a Saturday
night, are you going to sue him or her in tort?
Intentional Torts: Two important
points
Question:
What would you get out of it?
Question:
Let’s change the facts. If Mike Tyson slaps you (or if a pro
football player does), will you sue?
“Deep Pocket”
Lost wages
Medicals
Rehab
Earning Capacity
Punitives
Pain & Suffering
Mental Anguish
Consortium
Emotional Distress
Intentional Torts: Two important
points
“Deep Pocket”
-- If the lawyer finds a deep pocked, he or she will begin to construct the damage case
-- “If you are distressed about being slapped in public by this person, go see Doctor X.? He will help you”
-- Dr. X will render services, begin racking up medical bills.
-- try for punitive damages:
• wealth of the wrongdoer in relation to the wrong
-- Note that if you are I engaged in the same conduct, this would not be a case worth pursuing (no pay out).
Lost wages
Medicals
Rehab
Earning Capacity
Punitives
Pain & Suffering
Mental Anguish
Consortium
Emotional Distress
Intentional Torts: Two important
points
“Deep Pocket”
-- Note also how insurance figures into this
-- If automobile insurance were not mandatory, you would have a legal culture wherein buying insurance got you sued and not buying it allowed you to avoid being sued
(This is the way it works whenever insurance is voluntary)
(Unless, of course, you are wealthy or have assets significant enough for someone to try and take [relate this to our prior lesson about execution of judgments]).
Time
Non-Intentional Torts
1. These are by far the more important torts
2. They involve accidents – automobile collisions, medical malpractice, slip-and-fall, burn cases, paralysis, product liability (Vioxx), etc.
3. Two types of non-intentional torts:
(To understand the logic of fault – be it intentional, negligent, or absolute – let’s consider the following continuum):
negligence strict liability
-- unreasonable mistake or accident
-- absolute fault (no matter how careful)
The Continuum of Fault
1
Could not possibly have known
2
Should not have known
3
Should have known
4
Did Know
5
Desired it
6
Planned it
Strict LiabilityUsed for abnormally dangerous activities (e.g., blasting)
The Continuum of Fault
1
Could not possibly have known
2
Should not have known
3
Should have known
4
Did Know
5
Desired it
6
Planned it
Negligence
The Continuum of Fault
1
Could not possibly have known
2
Should not have known
3
Should have known
4
Did Know
5
Desired it
6
Planned it
Generally speaking, no punitive damages are available.
The Continuum of Fault
1
Could not possibly have known
2
Should not have known
3
Should have known
4
Did Know
5
Desired it
6
Planned it
Generally speaking, punitive damages are available.
The Continuum of Fault
1
Could not possibly have known
2
Should not have known
3
Should have known
4
Did Know
5
Desired it
6
Planned it
Intentional Torts
The Continuum of Fault
1
Could not possibly have known
2
Should not have known
3
Should have known
4
Did Know
5
Desired it
6
Planned it
Generally speaking, punitives available
The Continuum of Fault
1
Could not possibly have known
2
Should not have known
3
Should have known
4
Did Know
5
Desired it
6
Planned it
Punitives ?Special situations -– statute specific (no logic to them)
Time