Deck 7: Negligence: Damages

Question 1

The spouse of a person killed in an accident can recover for his or her damages under a statute, while an action brought by the executor or administrator of an estate is brought under a statute.

Answer 1

wrongful-death, survival

Question 2

The per diem technique is an attempt to give a concrete value to punitive damages.

Answer 2

False

Question 3

A plaintiff cannot recover from the defendant if he or she has already recovered for some of his or her damages under Social Security or from the plaintiff's employer's sick pay benefits.

Answer 3

False

Question 4

Some plaintiffs use the technique to establish a concrete numerical value for a pain and suffering award.

Question 5

According to the rule, a plaintiff is entitled to double recovery in that the plaintiff can recover from both the plaintiff's insurance company and from the defendant.

Question 6

To reduce a plaintiff's tax burden and to relieve the plaintiff of the responsibility of investing his or her award, a defendant may suggest that the plaintiff's future damages be awarded using a .

Question 7

If a defendant's conduct is reckless or indicative of "an evil mind," the plaintiff may be awarded damages.

Question 8

The of property is based on the amount the property could be sold for on the open market.

Question 9

Compensatory damages are divided into two categories- damages, such as pain and suffering, and damages, such as lost wages.

Question 10

Some people argue that awarding damages for pain and suffering may actually reinforce a plaintiff's pain.

Question 11

To prevent a plaintiff from realizing a windfall in damages, a defendant may propose the plaintiff's award be discounted to the of the award.

Question 12

Jurors are not allowed to take into consideration a plaintiff's personal habits and individual characteristics in determining his or her recovery for future lost earnings.

Question 13

The purpose of punitive damages is to restore a plaintiff to the position he or she was in before being injured.

Question 14

Under the rule, a plaintiff is obligated to minimize his or her damages.

Question 15

Because mental suffering is considered (because it attaches to the physical injury), some courts that adhere to the rule require the showing of some kind of physical harm before they will allow the plaintiff to recover for his or her mental suffering.

Question 16

A contingency fee arrangement may create a conflict of interest between a client and his or her attorney.

Question 17

Most courts have shied away from allowing recovery for shortened life expectancy as a distinct compensable harm.

Question 18

Medical expenses must be specially pleaded in a complaint.

Question 19

A claim, which allows a spouse to recover for lost services, is a claim in that it derives from the injured spouse's underlying claim.

Question 20

damages are awarded when the plaintiff is able to establish the defendant's liability but is unable to convince the trier of fact that actual harm occurred.

Question 21

Employers are never required to pay punitive damages for torts resulting from the acts of their employees.

Question 22

Damages are sometimes discounted to prevent the plaintiff from receiving a windfall by collecting in the present for future damages.

Question 23

In most states, the defendant in a wrongful death or survival action is barred from raising the defenses he or she could have raised against the decedent, had the decedent lived.

Question 24

Punitive damages can be awarded in any negligence case.

Question 25

Some feel that punitive damages should be awarded to the state and not the plaintiff.

Question 26

Some courts have imposed a physical harm requirement to minimize the possibility that a plaintiff is feigning his or her injuries.

Question 27

Wrongful death actions are typically brought by the executor or the administrator of the decedent's estate.

Question 28

Structured settlements are advocated by the plaintiff's bar but are generally resisted by the defense bar.

Question 29

Recovery under loss of consortium can lead to double recovery.

Question 30

Pain and suffering can never be recovered in a wrongful death claim.

Question 31

In some states a survival action cannot exist if the decedent's death was instantaneous.

Question 32

Wrongful death litigants must often focus their efforts on determining legislative intent.

Question 33

Husbands, but not wives, can recover for loss of consortium.

Question 34

Evidence of the plaintiff's remarriage can never be disclosed in a wrongful death or survival action.

Question 35

A plaintiff's recovery may be reduced if the plaintiff fails to mitigate his or her damages.

Question 36

Only spouses can recover under wrongful death statutes.

Question 37

Some attorneys argue that inflation offsets the discounting of present value awards.

Question 38

Under the common law, when an individual died, the individual's tort action died too.

Question 39

Fair market value represents the lowest price that could be realized by selling the product on the open market.

Question 40

Children, but not their parents, can recover for loss of consortium.

Question 41

How does the per diem technique assist in the process of providing damages for pain and suffering?

Question 42

What is the difficulty in proving damages for pain and suffering?

Question 43

Some courts have circumvented the physical harm requirement in those cases where the plaintiff can show he or she was in the "zone of danger."

Question 44

What is the purpose of punitive damages?

Question 45

For what losses is a spouse who is suing for loss of consortium seeking to recover?

Question 46

What argument might a defendant give for having a structured settlement?

Question 47

Explain the collateral source rule.

Question 48

Why might you find it difficult to compute future lost earnings for a plaintiff who was employed sporadically as a waitress?

Question 49

What is the difference between a wrongful death claim and a survival action?

Question 50

What is one argument given against the awarding of punitive damages?

Question 51

If the plaintiff's car is totaled in an accident, how will the value of the car be computed?

Question 52

Why would a defendant want to discount a plaintiff's award to its present value?

Question 53

What is one criticism of awarding damages for pain and suffering?

Question 54

Who can recover under a wrongful death statute?

Question 55

What is the purpose of compensatory damages?

Question 56

Give one criticism against the use of contingency fee arrangements.

Question 57

Who can recover under a survival statute?

Question 58

What is the counterargument for the answer presented in question 12?

Question 59

What is the justification for the collateral source rule?

Question 60

What is the purpose of nominal damages?

Question 61

Why might a plaintiff resist a structured settlement?

Question 62

In what instances are some courts willing to forego the physical harm requirement?

Question 63

What might a defendant argue if a plaintiff, who was not wearing a seat belt at the time of his injuries, was injured more seriously than he would have been if he had been wearing a seat belt? Assume the defendant's negligence was the cause of the accident and that the state in which the accident occurred mandates the wearing of seat belts.

Question 64

Why do some courts require that a plaintiff who has experienced mental suffering also show some type of physical harm?