torts 

§ 14.01 Overview [241-243]

Damages in torts constitute the “money awarded to the person injured by the tort of another.”  [See Restatement § 902.]  Tort damages include nominal damages, compensatory damages, and punitive damages.

Nominal damages are a symbolic award (often one dollar) given to the plaintiff when liability for a tort is established but no actual harm is proven.  [See Restatement § 907.]

Compensatory damages are awarded to a person to indemnify for personal injury, property, and other economic harm sustained by the victim. [See Restatement § 903.]  Compensatory damages are awarded for both pecuniary and non-pecuniary losses.  Unlike economic loss, pain and suffering, and other forms of mental distress have no obvious monetary equivalent.  This valuation problem has generated controversy over the desirability of compensating for pain and suffering at all.  [See, e.g., Seffert v. Los Angeles Transit Lines, 364 P.2d 337 (Cal. 1961).]

Punitive damages are awarded to punish and deter particularly egregious conduct. [See Restatement § 908.]

§ 14.02 Property Damages [243-244]

Damages for permanent deprivation or destruction of property are generally measured by the market value of the property at the time of the tort. If real or personal property is damaged but not destroyed, courts generally compensate the victim for the diminished market value of the property but sometimes award the cost of repairs instead of diminished value.

§ 14.03 Personal Injury [244-248]

Personal injury victims under tort law can be compensated for (1) medical expenses; (2) lost wages or impaired earning capacity; (3) other incidental economic consequences caused by the injury; and (4) pain and suffering. [Restatement § 924.]

§ 14.04 Mitigation or the Doctrine of Avoidable Consequences [248-249]

Injured victims have a responsibility to act reasonably to limit or “mitigate” losses incurred.  If a plaintiff fails to act reasonably to mitigate injuries, the defendant will not be held liable for incremental losses that otherwise could have been avoided.  [See Restatement § 918.]

§ 14.05 Punitive Damages [249-253]

Punitive damages are discretionary and awarded when a tort is committed with malice. [See Restatement § 908.] The United States Supreme Court has held that punitive damages must bear some relationship to potential harm. [See BMW of North Dakota, Inc. v. Gore, 517 U.S. 559 (1996).] Also, many states limit punitive damages awards. [See, e.g., Va. Code Ann. § 8.01-38.1 (Michie 1994).]

§ 14.06 Collateral Source Rule [254-256]

Under traditional common law doctrine, the plaintiff's recovery against the defendant is not affected by compensation the plaintiff received for the loss from other sources such as insurance. Such collateral sources for recovery are not disclosed to the jury under the collateral source rule. [See Restatement § 920A; Helfend v. Southern California Rapid Transit District, 465 P.2d 61 (Cal. 1970).]

Numerous reform statutes, most notably in the context of medical malpractice, now reject the collateral source rule and allow the jury to consider such insurance payouts and deduct them from the defendant's liability.  [See, e.g., Cal. Civ. Code § 3333.1.]