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Today’s Lecture:

Torts

1. Damages

2. Things you can sue for

(“causes of action”)

Lecture Organization:

• Class Announcements

• Review

• Introduction to Torts

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• 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

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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

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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]

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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]).

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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)

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