Gunn v.

Robertson FACTS: The plaintiff sought general damages plus past and future medicals and wages, and loss of earning capacity arising from an automobile accident with the defendant. His wife and children sought loss of consortium. The jury rendered a verdict in favor of plaintiffs, finding the defendant 70% at fault for the cause of the accident. The jury assessed the damages as follow: $1,000 for physical pain and suffering, $1,700 for past medical expenses and $5,400 for past lost wages. Plaintiff appealed alleging error in the jury’s finding of comparative fault and its award of general and special damages ISSUE: Whether the jury abusive its discretional power when they award the plaintiff compensatory damages below what should have be reasonable in light of the circumstances of the case. RULE: Looking at past cases analogous to the injuries presented in this case, juries have apportioned awards significant higher for injuries similar to the one presented in this case and considering the pre-existing condition of plaintiff, the law is defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortuous conduct. When the tortfeasor’s conduct aggravates a pre-existing condition, the tortfeasor must compensate the victim for the full extent of the aggravation. Subsequently, a tortfeasor is required to pay for medical treatment of his victim, even over-treatment and any pertaining expenses that resulted from that defendant’s tortuous conduct

APPLICATION: Here, the jury should have awarded more for the plaintiff’s general and special damages b/c (1) the plaintiff had a pre-existing spinal defect, which was aggravated by the accident and testified by the plaintiff’s physician that the plaintiff will required surgery to ease his pain. The rule of the court is a defendant has to take his victim as he finds him/her and must compensate for the full extent of the aggravation; (2) the jury abused its discretional power b/c prior cases that shows similarities to the plaintiff’s injuries have awarded more when plaintiff can established with certainty, and supported by medical testimony the probable expenses to cover the injuries. In this case, plaintiff presented evidence to support past medical expenses which was undisputed by the defendant and for general damages attributed to pain and suffering; and (3) third when a plaintiff can prove with preponderance of the evidence his claim of past and future wages through his own testimony but also through medical evidence that indicates with reasonable certainty that a residual disability causally related to the accident exists. In this case, the plaintiff failed to prove by a preponderance of the evidence that the bid he placed on a construction job would be accepted and defendant vocational expert testimony shows the plaintiff was capable of some upward mobility which allows him to work in light/medium duty jobs and giving time his potential earning capacities will increase.

CONCLUSION: Therefore, the judgment of the district court is amended to award to plaintiff general damages of $25,000, along with special damaged of #13,942.19 for past medical expenses, $59,915 for future medical expenses and $7,500 for past wages, subject to 30% reduction for plaintiff’s fault.

Jordan v. Baptist Three Rivers Hospital FACTS: The plaintiff sought damages for loss of consortium from the defendants’ negligence that caused the decedent’s death. The defendants filed a motion for strike and a motion for judgment on the pleadings asserting that TN law does not permit recovery for the loss of parental consortium. The trial court granted the motion to strike. ISSUE: Whether the plaintiffs’ claims for loss of spousal and parental consortium is viable when the defendant’s negligence caused the decedent’s death RULE: Survival statutes: permit victim’s cause of action to survive death, so that the victim, through his estate, recovers damages that would have been recovered by the victim had the victim survived; action includes damages for the death itself; recovery is the same as the decedent would have been entitled to at death (wages lost, med expenses, pain & suffering) Pure wrongful death statutes: another cause of action in favor of the survivors of the victim for their losses occasioned by the death; compensate for the loss of econ benefit they might reasonably have expected to receive from decedent during remainder of lifetime had they not been killed = “pecuniary loss” standard of recovery APPLICATION: Here, there are two statutes: One, the survival statute that transfer the decedent’s right for cause of action against the negligence defendant unto the surviving spouse or children. Second, there is the wrongful death statute that allows the surviving spouse and children to seek compensation for loss of economic benefit the decedent would have provided have they been alive. These two statutes are applicable to the plaintiffs in this case b/c the plaintiffs loss their mother and spouse due to the defendant’s negligence. In this instance case, the plaintiff seeks compensation for loss of consortium and as stated in this case, while consortium is not implicitly stated in the statutes, it was implied by what the court labeled as the pecuniary value. This pecuniary value covers all aspect such as expectancy of life, age, condition of health and strength, capacity for labor, earning potential, profession and occupation or business, and personal habits as to sobriety and industry. Pecuniary value extends to cover different things in human life that makes someone a functioning part of a family both socially and economically. The loss of those things is incalculable to the decedent’s surviving family. Therefore, this surviving spouse and children are entitled to compensation subject to the closeness of the relationship and dependence tot the decedent

CONCLUSION: Therefore, consortium-type damages may be considered when calculating the pecuniary value of a deceased’s life – holding does not create a new cause of action but merely refines the term “pecuniary value” Loss of Consortium - tangible services provided by a family member, also intangible benefits each family member receives from the continued existence of other family members (compensating for this)

RAEL v. F & S CO. FACTS: The plaintiff was injured by a sudden explosion of a firework, in which plaintiff claims to suffered ongoing headaches in the back of his head as a result of the explosion. Plaintiff filed action against the seller and the defendant. Defendant filed cross-claims in which each sought indemnity from the other. The jury returned a verdict of $7,000 for Π and $399 for the father against both defendants jointly and severally. ISSUE: Whether plaintiff should be compensated when pain and suffering that the plaintiff incurred, headaches in the back of the head is not the type usually expected from the injury.

RULE: There two rules in determining pain and suffering: (1) when the injury is objective→ which are apparent to the anyone that pain and suffering is a necessity of that injury, then the jury may infer such pain and suffering; (2) when the injury is subjective→ meaning the pain and suffering incurred cannot with reasonable certainty be known to have occurred, then the Π must offer evidence by expert witnesses, learned in human anatomy, who can testify, either from a personal examination or knowledge of the history of the case, or from hypothetical question based on the facts, that the plaintiff, with reasonable certainty, may be expected to experience future pain and suffering, as a result of the injury proven.

APPLICATION: Here, the plaintiff’s injury is a subjective one that require expert testimonies as to the likelihood of pain and suffering b/c the plaintiff failed to provide expert testimonies that the headaches in the back of his head are caused by the accident, he failed to prove with reasonable certainty his case for the jury to award damages for future pain and suffering.

CONCLUSION: Therefore, lack of expert testimonies in this case makes it impossible to determine whether the plaintiff had incurred any pain and suffering at all.

Giant Food Inc, v. Satterfield FACTS: The plaintiff slipped and fell at the defendant’s store. Plaintiff sues and the jury found defendant negligent and awarded the plaintiff $2,500 for past medical expenses and $40,000 for general damages. Defendant appeals from an adverse ruling entered by the circuit court arguing trial court erred by denying him a particular jury instruction after the plaintiff’s counsel made a per diem argument. ISSUE: Whether the per diem argument which is a suggestive mathematical formula in determining an award for pain and suffering should not be allowed to be given to the jury. RULE: This is a state that allows such argument to be presented to the jury but conditioned only to be used as long as it is instructed that the amount is not evidence, but a method suggested by party for calculating damages.

APPLICATION: Here, there are several policy concerns for and against allowing such per diem argument to be suggested to the jury. Policy reasons for suggest (1) jury should be guided by some and practical standard; (2) jury should not be led to make guesses; (3) the absence of any evidentiary yardsticks/standard makes it unlikely for the jury to be mislead; (4) the argument is only a method the jury can used to make calculation; (5) the argument is not evidentiary but merely a suggestion; and (6) opposing counsel is free to make the suggestion. Policy reasons against (1) lack of evidentiary basis for converting pain and suffering into monetary terms; (2) such suggestion of monetary equivalents for pain and suffering can be equate as testimonies not disclosed by evidence; (3) juries mislead into giving higher awards; (4) admonitions of the trial court that the argument is not evidence do not erase the prejudice; and (5) defendant is disadvantage by being required to rebut an argument that has no evidentiary basis. This argument for and against are somewhat viable by the jurisdictions that adopts them.

CONCLUSION: Therefore, the argument is permissible in this jurisdiction as long as the jury is instructed that the argument is not evidence but merely a method for the purposes of calculating damages.

Moody v. Blanchard Place Apartments FACTS: P suffered electric shock from a stove in an apartment he rented from D. He received neck injuries related to the shock. Lost past and future wages: economists testified for both P and D. After trial on the merits, judgment was cast for the defendant. P appealed. ISSUE: Whether plaintiffs’ awards for loss of future income/future earning not easily susceptible to calculation is somewhat reflective of the experts’ calculations given the jury deference.

RULE: When awards for loss of future income/future earning not easily susceptible to calculation, the court needs to consider several factors in determining future lost income such as (1) physical condition before and after injury (2) past records and the consistency thereof (3) amount plaintiff would have earned absent the injuring complained of and the probability that he would continued to earn wages over the balance of his/her working life.

APPLICATION: Here, the awards for loss of future income/future earning are not easily susceptible to calculation as past income, or past medical expenses b/c several factors needs to be considered in making that determination. The inherent method in making this calculation can differ in some many ways even among experts well qualify to make such immerse calculation. Best way to calculate: take base pay; add seniority increases (if it applies) and factor in inflation. Generally you run one number, and then add 7% seniority and 3% inflation.

CONCLUSION: Therefore, awards for loss of future income/future earning capacity are inherently speculative and cannot be mathematically calculated. Since neither of the math calculations were unreasonable, gave deference to the jury.

Kaczkowski v. Bolubasz FACTS: Wrongful death and survival actions were based upon automobile accident in which decedent was fatally injured. Case tried first time, the jury established appellee liability. P motioned for a new trial and the case was returned to the trial court for a retrial on the issue of damages. The trial court charged the jury to consider the decedent’s personal characteristics…. And based on the instruction, the jury returned a verdict of $30,000 for the decedent. ISSUE: Whether the trial court erred in excluding reliable economic testimony showing the impact of inflation and increased productivity on decedent’s future earning power.

RULE: Three approaches which court uses to consider impact of future inflation and productivity on lost future earning capacity: a) Traditional – ignores effects of future productivity and future inflation as being “too speculative.” Has been rejected by Commonwealth. b) Middle Ground – permits factfinder to consider the effects of productivity and inflation, but prohibits expert testimony on either (argue expert testimony is speculative, facts are within “common experience” so jurors can use own knowledge) i. Expert evidence is essential to accurate econ forecasting – do not accept a) Evidentiary approach – factfinder can consider productivity & inflation – adopted by the court. i. Offset Present Value Method – subtracted the estimated inflation rate from the discount rate to calculate the inflation adjusted “real” rate of interest. ii. Total Offset Method – no adjustment for the interest rate b/c inflation will offset it. APPLICATION: Here, the court looked at three approaches (1) traditional approach, which the court rejected as been too speculative b/c it ignores the issue the court needs to address as not inclusive, not concretely accurate or efficient (2) middle ground→ which consider productivity and inflation as relevant factors to considered but falls short because usually such calculations requires expert testimonies to help make sense of the immerse mathematical calculation involved. The approach suggested that jury common sense is all is needed to navigate through the fact. Over the years, the forecastibility of the economic suggest experts expertise in making the prediction which can be difficult even for an expert, not to consider leaving it to the judge or the jury to make the prediction (3) evidentiary approach→ which consider productivity and inflation but also gave two variants on how to proceed with such calculations. The first variant which was established by the Fieldman case, allows a mixture of experts and lay witnesses to testify as to the decedent past and future employment possibilities, and looked at similar person with same qualifications to determine decedent productivity. The second variant illustrated by the Alaska court, looked at the future earning calculations over the decedent life expectancy and the court adopted the total offset method that makes it easier to calculate inflation without using the six-percent interest rate adjustment.

CONCLUSION: Therefore, the total offset method equates the six-percent discount rates.

Peete v. Blackwell FACTS: The defendant and the plaintiff were attending to a patient bleeding profusely. In haste to stop the bleeding, insulted the plaintiff and struck her in the forearm demanding that she turn on the goddamn suction. While there was no physical injury of any kind, the plaintiff nevertheless sued. Plaintiff alleged defendant had committed an assault and battery and demanded $1 for compensatory damages and $100,000 for punitive damages; the jury returned a verdict against the P in the amount of $10,001 for the charges and for punitive damages. The trial court entered judgment but did not rule for within 90 days and subsequently all defendant motions were denied. ISSUE: Whether the jury awards of punitive damages was excessive considering the plaintiff suffers no physical injuries RULE: Assault and battery will support an award of punitive damages whenever there is proof that the act charged was wrongful and attended with insult or other aggravating circumstances

APPLICATION: Here, the evidence showed the defendant had insulted the plaintiff prior to the incident, he had cursed frequently throughout the treatment, he had been yelling and hollering prior to the event, and he threw a patient chart across a desk some time prior to the striking. All this aggravating circumstances showed the way he degraded and embarrassed the plaintiff. The aggravating circumstances in the form of angry and intimidating behavior had accompanied the assault and battery. Giving punitive damages will deter him from this behavior in the future.

CONCLUSION: Therefore, on the basis of the evidence brought forward, an award is some amount for punitive damages was proper in this case.

Shugar v. Guil FACTS: The plaintiff and the defendant got in a scuffle in which blows were exchanged over a continuing dispute as to whether the defendant owes money to the plaintiff and the plaintiff coming into the store, bought a coffee and attempt to charge it on the house. D commented on P’s cheapness and requested P to leave in which P responded “make me”. D proceeded to do that and somewhat b/w the scuffle after been a bystander attempted to break up the fight; D struck P in the face breaking his nose and causing it to bleed profusely requiring extensive medical procedure to fix. The jury awarded P $2,000 for compensatory damages and $2,500 for punitive damages. ISSUE: Whether punitive damages should be awarded in addition to compensatory damages when both parties were engaged in a fight that resulted in P getting injured.

RULE: To justify the awarding of punitive damages, there must be a showing of actual or express malice, that is, a showing of a sense of personal ill will toward the plaintiff which activated or incited a defendant to commit the alleged assault and battery.

APPLICATION: Here, there was no showing of actual or express malice b/c both parties were engaged in a fight. Importantly, the fight was initiated by P. The fighting was not sufficient evidence to infer that D’s actions were activated by personal ill will tow P or his acts were aggravated by oppression, insult, or wanton/reckless disregard to P’s rights.

CONCLUSION: Therefore, there was no sufficient evidence to carry the issue of punitive damages to the jury.

State Farm v. Campbell FACTS: The plaintiff caused an accident that left one person dead and another permanently disabled. Early investigation showed that plaintiff was the cause of the accident. The plaintiff was insured by the defendant and the defendant expecting to pay for liability decided to contest the liability assuring the plaintiff that their asset was safe, that they had no liability for the accident and that they did not need to procure separate counsel. The jury deciding the plaintiff was 100 percent at fault, returned a verdict of $185,849, which exceeded the settlement amount the decedent would have paid had they not contested the liability. The defendant had initially assure the plaintiff their asset was safe but at the end of the trial informed the plaintiff to “put a for-sale signs on their property to get things moving” since they are not going to pay the settlement. During the pendency of the appeal, the plaintiff make a deal with the victims of the accident in which they will not collect on their judgment if the plaintiff is willing to sue the defendant, using their lawyers and collecting 90 percent of the settlement against the defendant. Plaintiff sued and defendant motion for a summary judgment which was initially granted b/c D had paid the excess verdict but was reversed by on appeal. D moved for in limine to exclude evidence pointing to its conduct out of sate but was denied. The trial court did granted D request that the trial be bifurcate and trial by two juries. The jury returned the verdict on the first phase of the trail finding the defendant’s decision not to settle to be unreasonable b/c there was a substantial likelihood of an excess verdict. The second phase was of the trial was still pending b4 a case was decided that caused the defendant request exclusion of evidence of dissimilar out of state case but was denied. Following the second phase of the case, the jury awarded the plaintiff $2.6 million in compensatory damages and $145 million in punitive damages which was reduced by the trial court to 1 million for CD and 25 million for PD but the decrement was reinstated to the original amount. ISSUE: Whether in this circumstances, an award of $145 million in punitive damages, where full compensatory damages are $1 million, is excessive and in violation of the Due Process Clause Of the Fourteen Amendment to the Constitution of the United States. RULE: The Due Process Clause of the Fourteen Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor to the extent that it furthers no legitimate purpose and constitutes an arbitrary deprivation of property. Punitive damages amount can be consider looking at three guideposts: i. The degree of reprehensibility of the defendant’s misconduct; ii. The disparity b/w the actual or potential harm suffered by the plaintiff and the punitive damages award; and iii. The difference b/w the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases

APPLICATION: Here, the award was too excessive exceeded the guideposts set to determine the extent of amount to award in punitive damages b/c (i) The degree of reprehensibility of the defendant’s misconduct should be considered whether the harm caused was physical as opposed to economic, the tortuous conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was result of intentional malice, trickery, or deceit or mere accident. So, evidence suggest that the defendant had altered company records to make plaintiff less culpable, disregarded the overwhelming likelihood of liability and the near-certain probability that excess policy limits would be awarded and amplified P’s harm by assuring them there asset will be safe and then telling them post-judgment to put their house on sale, but this has no bearing on why the court awarded the excessive punitive damages. Stated in the court’s opinion itself, the defendant was been punished for its conduct nationwide rather for the harm they incurred on the plaintiff. Even more so, irrelevant acts that bear no relation to P’s harm were introduced excessively in the case that that the court awarded PD as to punish and deter those behavior.

(ii) The disparity b/w the actual or potential harm suffered by the plaintiff and the punitive damages award should have been ratio out moderately. Although the court has set no bright-line ratio which punitive damages cannot exceed, it nevertheless had explained that a single digit ratio b/w PD and CD is sufficient to satisfy due process. Ratios that double, treble, or quadruple are trending the limits that exceed due process. In this instance case, the ratio is 145-1 which suggested excessiveness considering there was no physical injuries, harm occurred only from a transaction in the economic realm, P only suffered minor injuries for only 18 months in which D refused to settle. While punitive damages may be required to condemn that behavior, it was covered by CD

(iii) the difference b/w the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. In this case, comparable cases similar to this one for fraud done to P is $10,000 fine and the reprimand of D losing its license were all broaden based on compiled evidence nationwide that has no relation to the harm done to P.

CONCLUSION: Therefore, the punitive damages award was neither reasonable nor proportionate to the wrong committed, and it was an irrational and arbitrary deprivation of the defendant’s property. Case remanded for proceedings not inconsistent with this opinion.

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