TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, August 6, 2012

Missouri Supreme Court Holds Cap on Non-Economic Damages Violates State Constitution

In a decision issued July 31st, the Missouri Supreme Court struck down the state's statutory cap on non-economic damages as violating the Missouri state constitution.  Specifically, the court found that the cap violated the right to a trial by jury.  A copy of the decision is available here (pdf).


August 6, 2012 in Current Affairs, Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 6, 2012

NY: Nonpecuniary Damages Not Available for Legal Malpractice

So held the Court of Appeals in Dombrowki v. Bulson  (pdf) (at least against criminal defense attorneys). 

Thanks to Mark Weber for the tip.


June 6, 2012 in Damages | Permalink | Comments (0) | TrackBack (0)

Monday, April 23, 2012

Judge Awards $65k Damages for Loss of Pet

A Colorado judge has awarded $65,000 for the negligent death of the plaintiff's 18-month old dog.  A cleaning service mistakenly let the dog out, where she was hit by a car.  The dog crawled back into the house, and the cleaning service left the dying dog - knowing it had been hit - under the dining room table, where the owner found her dead upon returning 2 hours later.  

 Colorado News9 and Channel 7 have more.   

Thanks to Lisa Smith-Butler for the alert.  

- SBS 

April 23, 2012 in Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 25, 2012

Sharkey on Economic Analysis of Punitive Damages

Cathy Sharkey (NYU) has posted to SSRN Economic Analysis of Punitive Damages:  Theory, Empirics, and Doctrine.  The abstract provides:

This chapter — to be included in Research Handbook on the Economics of Torts (Arlen ed., Kluwer, forthcoming 2012) — assesses economic rationales for punitive damages in light of contemporary empirics and doctrine. The primary economic rationale for supra-compensatory damages is optimal deterrence (or loss internalization): when compensatory damages alone will not induce an actor to take cost-justified safety precautions, then supra-compensatory damages are necessary to force the actor to internalize the full scope of the harms caused by his actions. Alternative economic rationales — disgorgement of ill-gotten gains and enforcement of property rights — have been proposed to align the theory with the historical and conventional focus of punitive damages on intentionally wrongful behavior.

Notwithstanding its academic prominence, the economic deterrence rationale has not dominated doctrine. In fact, the U.S. Supreme Court has all but rejected economic deterrence, by instead placing increasing emphasis on a competing retributive punishment rationale. But, since punitive damages lie squarely within the purview of state law, state legislatures and courts possess a degree of freedom to articulate state-based goals of punitive damages — such as economic deterrence — even in the face of heavy-handed federal constitutional review imposed by the U.S. Supreme Court.


January 25, 2012 in Damages, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 19, 2012

Licari on Enforcing Punitive Damage Awards in France after Fountaine Pajot

François-Xavier Licari has posted Enforcing Punitive Damage Awards in France after Fountaine Pajot on SSRN. The abstract provides:

In a landmark ruling, the Cour de cassation held that 'an award of punitive damages is not, per se, contrary to public policy,' but that 'it is otherwise when the amount awarded is disproportionate with regard to the damage sustained and the debtor's breach of his contractual obligation.' Schlenzka & Langhorne v. Fountaine Pajot, S.A. involved the failed attempt by American judgment creditors to enforce their California judgment against a French defendant in France. At the same time that the judgment creditors were taking their case through the French legal system, the Cour de cassation, in a different line of cases, liberalized the conditions under which a foreign judgment could be enforced in France. But when the Court opened one door for the American plaintiffs, it closed another by refusing to enforce the judgment because it included disproportionate punitive damages. The Court's reasons were inconsistent with prior interpretations of proportionality and disingenuous to the court's modern approach to the enforcement of foreign judgments. In just a few words, the Court echoed prevailing French and European sentiments about American punitive damage awards. Unfortunately, the prevailing attitudes are dominated more by prejudice than by fact and reason.






January 19, 2012 in Damages, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 22, 2011

Recovery of Sentimental Value of Pets

Courthouse News Service reports on an interesting case out of Texas, Medlen v. Strickland (pdf). In Medlen, the Texas Court of Appeals "ruled that the owners of a mistakenly euthanized dog can sue to recover the sentimental value of their lost pet, reversing and remanding the ruling of a trial court."

Animal Law Blog also have coverage


November 22, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 15, 2011

Challenges to State Punitive Damages Caps

California Punitive Damages Blog reports that both the Arkansas Supreme Court and the Missouri Supreme Court are considering challenges to the legislative caps on punitive damages in those states.


November 15, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)

Monday, November 7, 2011

WV Nursing Home Verdict: $91.5M

An 87-year-old woman died shortly after entering a Charleston, WV nursing home.  The nursing home has been hit with a $91.5 million jury verdict.  At least 2 issues may be taken up on appeal.  First, WV has a med mal cap that limits recovery of non-economic damages to $500,000.  The jury found that only a small part of the negligence was "medical."  Instead, the largest part of the negligence was the failure to provide basic necessities such as food and water.  Second, in an attempt to earn punies, the plaintiff's lawyer informed the jury that the nursing home's parent corporation earned $4 billion last year.  However, that figure was gross earnings; the parent corporation's taxable income last year was $75 million. has the details.


November 7, 2011 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Monday, October 24, 2011

First Circuit Reverses Dismissal of Data Breach Case

In In re Hannaford Bros. Co. Customer Data Security Breach Litig. (pdf), the First Circuit reversed the dismissal of negligence and implied contract claims against Hannaford Supermarkets by customers who were victims of a data breach.   The court found that "plaintiffs' reasonably foreseeable mitigation costs constitute a cognizable harm under Maine law."  Specifically, the court found that the purchase of identity theft insurance and replacement card fees constituted harm.  

Thanks to Lisa Smith-Butler for the alert.



October 24, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 28, 2011

Indiana Stage Collapse Leads to Lawsuit, Challenges

Most people know that a stage collapsed during the Indiana State Fair, killing several people.  Not surprisingly, survivors of the victims have filed suit.  One suit challenges both Indiana's $5 million total cap on damages in claims seeking damages from the state and seeks to make damages available for surviving same-sex partners.  (Indiana does not recognize same-sex marriage.)


September 28, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Intermediate Appellate Court Upholds Damages Cap in California

I missed it earlier this month, but an intermediate appellate court in California upheld a $250,000 cap on noneconomic damages in medical malpractice claims. 


September 28, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, August 25, 2011

Second-Hand Smoke Case Continues Against Housing Cooperative, Sans Punitives Claim

A resident of Greenbelt Homes in Maryland filed suit against the housing cooperative for failing to prevent his exposure to his neighbors' second-hand smoke.  The trial started on Monday and, while the negligence claim is continuing, the judge did dismiss the claim for punitive damages.


August 25, 2011 in Current Affairs, Damages | Permalink | Comments (1) | TrackBack (0)

Monday, August 8, 2011

Dead Men Can't Be Sued for Punitive Damages

The Iowa Supreme Court has reaffirmed its long standing rule (dating back to 1884) prohibiting punitive damages claims against deceased individuals.  The court reasoned that awarding punitive damages against an estate does not serve the purposes of punitive damages, which the court identified as (1) punishment, (2) specific deterrence, and (3) general deterrence.  Iowa's decision follows the majority rule on this issue.  (The opinion helpfully includes footnotes and citations discussing the majority/minority breakdown).

A copy of the court's opinion is here. The Des Moines Register has full coverage.

Thanks to How Appealing for the info.


August 8, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)

Thursday, July 21, 2011

A Rebuttal to the Atlantic Amtrak Piece

Yesterday Chris posted a link to an Atlantic piece, written by Andrew Cohen, critical of the cap on damages in railroad accident cases.  Ted Frank has some pointed criticisms that are worth reading as well.


July 21, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (2) | TrackBack (0)

Wednesday, July 20, 2011

Atlantic Article on Damage Caps in Amtrak Reform Act

The anti-cap article, written by Andrew Cohen, discusses the 2008 train crash in Chatsworth, CA caused by a texting engineer.  Cohen quotes portions of Superior Court Judge Peter Lichtman's opinion as he divides the $200M capped damages among the victims, including 24 fatalities.


July 20, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, June 24, 2011

WV Reaffirms Constitutionality of Noneconomic Damages Cap in Med Mal Cases

The opinion is here:  Download 35543[1].

Thanks to Mark Behrens for the tip.


June 24, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 21, 2011

NYC Paid $521 Million in 2010 Settlements

Bloomberg Business Week (AP) reports that New York City paid about $521 million in 2010 to settle personal injury and property damages suits.  The Police Department, Department of Transportation and Health & Hospital Corp. had the most settlements in 2010.


June 21, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)

Thursday, May 19, 2011

Argument Over Engle Progeny Verdict

The Engle progeny tobacco cases in Florida are continuing apace, including through the appellate process.  On Tuesday, a case that ended with a total of a $15.75 million verdict was argued in Florida's First Circuit Court of Appeals.  As usual, the focus was on the plaintiff's knowledge of the risks of tobacco.


May 19, 2011 in Damages, Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, May 12, 2011

Pella Class Action Certified

A federal appellate panel in Chicago has upheld the certification of a class action against Pella, a manufacturer of windows, based on allegations of a design defect leading to rotting wood around the windows.  One of the issues was how to handle consumers who have not yet suffered economic loss.  The plaintiffs' counsel:

came up with a novel solution that persuaded U.S. District Judge James Zagel. He separated the window buyers into two classes: Consumers ...who have suffered economic loss, and a larger, nationwide group of those who haven't. But instead of seeking compensation for the latter class, he asked the judge to void Pella's 10-year warranty, pay for window inspections and other "declaratory" relief. The latter class would be allowed to file individual claims with Pella once rot was detected.

Consumer class actions are typically not in our wheelhouse, but the Chicago Tribune article quotes Sheila:

"This is an interesting twist in consumer fraud cases," said Sheila Scheuerman, an associate law professor at the Charleston School of Law who specializes in class actions. "Courts have been fairly hostile to classes where there are no injuries. But litigation always evolves to adapt to restrictions."

Full coverage from the Tribune is available here.


May 12, 2011 in Damages, MDLs and Class Actions | Permalink | Comments (1) | TrackBack (0)

Thursday, April 14, 2011

Japanese Individuals, Businesses Seek Compensation for Nuclear Disaster

From the story, it sounds like there's a chance of a fairly quick resolution and agreement for payments.

April 14, 2011 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)