Compensation for Harm

Question 1

Personal Injury - Two Views of Compensation

Answer 1

• pl-oriented - desire to fully compensate for whatever loss of well-being the pl has suffered
• def-oriented plan - tort judgment = tax on def’s negligence -> goal is to tax in an amount sufficient to deter the wrongful conduct

Question 2

Goal of Damages

Answer 2

• trying to reach full compensation (to pl) and full deterrence (to def)

Question 3

Christopher v. US

Answer 3

• 1965
• pl suffered injury which causes paraplegia after def’s negligence in treating pl for tuberculosis
• Court deals w/ three major categories of loss: 1) medical costs, 2) wage losses (difference between what could’ve been earned prior to accident + what can be earned afterwards), and 3) pain and suffering
• court does all of its calculations in 1965 dollars (rationale is that whatever pl will get from savings mirrors the inflation rate)

Question 4

Problems w/ Personal Injury Damages

Answer 4

• lawyers’ fees take big bite out of judgment -> undercuts ability to make pl whole
• lump sum does not take into account of loss of chances of gain presented to everyone as daily part of life
• inflation issues

Question 5

Third Parties and Damages in Personal Injury

Answer 5

• no third parties get economic damages because they are already paid to the injured party
• in some jursidictions, third parties compensated for associative (consortium) and emotional damages

Question 6

Posner’s Thoughts on Lump Sums

Answer 6

• lump sums avoid disincentive of tying continued payments to continued disability (encourage people to get better and go to work)
• saves administrative/policing costs as opposed to periodic payment plan
• on the other hand lump sums skew away from full compensation insofar as they don’t accurately account for inflation-> makes sense to calculate recovery in today’s dollars, but should discount using real interest (interest from risk-free investments) as opposed to inflation rate

Question 7

Survival Statute vs. Death Statute

Answer 7

• relates to wrongful death damages
• if def has injured another but hasn’t caused death and either the injured person or def has died before trial, then you can only recover under the Survival Statute
• if def caused the death of another, then you can recover under both the Survival Statute for elements of damage the deceased could have recovered had he not died, and under the Death Statute for damages to near relatives who would benefit if the deceased were still alive

Question 8

Survival Damages

Answer 8

• action brought by estate to recover damages from time of injury to time of death (damages deceased could have recovered had he not died)
• limited to lost wages and out of pocket expenses
• this money goes to the estate of the deceased

Question 9

Wrongful Death Damages

Answer 9

• suit brought by those who would benefit if the deceased were still alive
• no recovery for the loss of life to the one who lost it (there is essentially NO monetary value attributed to L as the loss of life for the deceased) - BIG HOLE IN DETERRENCE (means wrongful death damages always undertaxing def - def isn’t actually paying full cost of the loss)

Question 10

Wrongful Death - Recovering Parties

Answer 10

• family members ONLY
• Cassano v. Durham - doesn’t cover live-in partnerships (you can’t sue for your partner’s wrongful death unless married)
• note that there is an extent to which damages are not based on what decedent lost, they’re based on what family members lost by losing the decedent (since no eval on value of decedent’s life to decedent)

Question 11

Wrongful Death - Recoverable Damages

Answer 11

Three categories:

• economic losses (net)
• associative losses (consortium)
• emotional (solatium)

Question 12

Wrongful Death - Economic Losses

Answer 12

• future lost wages, life expectancy

- gets discounted by expenses that decedent would have incurred

Question 13

Munn v. The Hotchkiss School

Answer 13

• pl gets encephalitis while on a school trip (school was negligent, didn’t warn about insects)-> receives $41.5 million, including $31.5 million in noneconomic damages

Question 14

Burke v. Rivo

Answer 14

• 1990
• pl’s able to recover for birth of a child after negligent sterilization procedure if reason for seeking the sterilization was economic /financial (pl gets to recover the cost of raising the child)

Question 15

Associative Loss

Answer 15

• companionship/consortium
• between spouses, death of child brings consortium damage to parents
• does NOT apply though to children losing parents (Borer v. American Airlines)

Question 16

Emotional Harm

Answer 16

• pain and grieving
• currently 13 states allow this instruction (unclear if this is still true, but basically emotional damages not available in every state)

Question 17

Problems with Wrongful Death Damages

Answer 17

• doesn’t represent full compensation because only family members are allowed to recover (excludes others who may have been significantly impacted by the death)
• impossible to approach optimum safety (true deterrence) if damages to dead person are ZERO
• victim’s pain + suffering (much less value of life to one who lost it) are not compensated at all