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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 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 IMPOSED Answer: 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 expensive Time

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 PastFuture

Economic Damages: Lost wages Medical Bills Cost of Therapy Lost Earning Capacity PastFuture 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 $450,000 Note 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: Future 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: Future 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: Future 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 Services Society 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. PastFuture 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 PastFuture 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 million Question: 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: IntentionalNon-intentional Negligence Strict Liability

Intentional Torts: Battery Assault False Imprisonment Libel/Defamation Conversion of Property/Trespass Fraud/Misrepresentation Interference with Contractual Relations Abuse of Process Malicious Prosecution Unpermitted touching Fear of immediate battery Confining your free movement against your will Concerns 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): negligencestrict 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 Liability Used 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