Try not to overstate the case because it will seem greedy you just – want to trial inform the jury (Cal. Ct. App. 1998) Loth v. Truck–A–Way Corp. Trial In her personal injury suit filed after an automobile accident with – defendants, a truck owner and its employee driver, the jury awarded plaintiff motorist general damages of $ 890,000. The court issued separate instructions on pain and suffering and on loss of life’s enjoyment. Holding Reversed; loss of enjoyment was a component of pain and – suffering damages, and the two instructions could have resulted in an award of double damages. It was also error to admit the expert testimony, because the loss of enjoyment damages was within the jury’s ken and because the expert’s baseline figure was arbitrary. (N.Y. Ct. App. 1989) McDougald v. Garber Trial Plaintiff undergoes a caesarean section and tubal ligation. During – the surgery, the plaintiff suffered oxygen deprivation, which resulted in severe brain damage and left her in a permanent comatose condition. Rule Cognitive awareness is required for an award for loss of enjoyment – of life and pain and suffering. It does not serve any compensatory purpose otherwise. Analysis – There are no separate awards for loss of enjoyment and pain and suffering—this would be double recovery. In determining damages for conscious pain and suffering experienced in the interval between injury and death, the degree of consciousness, severity of the pain, apprehension of impending death, along with duration are all elements to be considered. § 4 Limitations on Damages Recovery – INTRODUCTION These are doctrines to assure that we are not going past the putting the person in their rightful position Plaintiff has a to mitigate damages “duty” No dispute that person should take reasonable steps to minimize damages to the extent practicable Offsetting benefits If the plaintiff received a benefit as a consequence of the breach, the defendant should be able to offset this Very fact specific AVOIDABLE CONSEQUENCES
Try not to overstate the case because it will seem greedy – you just want to inform the jury Loth v. Truck–A–Way Corp. (Cal. Ct. App. 1998) – In her personal injury suit filed after an automobile accident with defendants, a truck owner and its employee driver, the jury awarded plaintiff motorist general damages of $ 890,000. The trial court issued separate instructions on pain and suffering and on loss of life’s enjoyment. Holding – Reversed; loss of enjoyment was a component of pain and suffering damages, and the two instructions could have resulted in an award of double damages. It was also error to admit the expert testimony, because the loss of enjoyment damages was within the jury’s ken and because the expert’s baseline figure was arbitrary. McDougald v. Garber (N.Y. Ct. App. 1989) – Plaintiff undergoes a caesarean section and tubal ligation. During the surgery, the plaintiff suffered oxygen deprivation, which resulted in severe brain damage and left her in a permanent comatose condition. Rule – Cognitive awareness is required for an award for loss of enjoyment of life and pain and suffering. It does not serve any compensatory purpose otherwise. Analysis – There are no separate awards for loss of enjoyment and pain and suffering—this would be double recovery. In determining damages for conscious pain and suffering experienced in the interval between injury and death, the degree of consciousness, severity of the pain, apprehension of impending death, along with duration are all elements to be considered. § 4 – Limitations on Damages Recovery INTRODUCTION These are doctrines to assure that we are not going past the putting the person in their rightful position Plaintiff has a “duty” to mitigate damages No dispute that person should take reasonable steps to minimize damages to the extent practicable Offsetting benefits If the plaintiff received a benefit as a consequence of the breach, the defendant should be able to offset this Very fact specific AVOIDABLE CONSEQUENCES Trial Trial
Remedies-Hoffheimer-MS.docx