Damages, Vicarious Liability and Dignitary Torts: every key term you need (+ practice quiz)
25 flashcard terms for Torts Topic 8, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
Money awarded to restore the plaintiff, so far as money can, to the position occupied before the tort, covering both economic losses and intangible harms proved at trial.
Special damages
Economic items capable of relatively precise calculation, such as medical bills, repair costs, and lost wages, which typically must be specifically pleaded and proved.
General damages
Non-economic harms presumed to flow from the injury, including physical pain, mental anguish, disfigurement, and loss of enjoyment, which resist arithmetic proof.
Pain and suffering award
Compensation for physical discomfort and emotional distress caused by injury, left largely to jury judgment and reviewable only for excessiveness or passion and prejudice.
Per diem argument
Advocacy technique urging jurors to value suffering by a small daily figure multiplied across the plaintiff's expected life, permitted in some states and barred in others as misleading.
Lost earning capacity
Damages for the reduction in the plaintiff's ability to earn over a working lifetime, measured by potential rather than by actual pre-injury earnings alone.
Present value discounting
Reducing a stream of future losses to a lump sum that, prudently invested, would produce the same payments, requiring assumptions about interest and wage inflation.
Collateral source rule
Evidentiary and damages principle barring reduction of an award because insurance, sick pay, or other independent sources already compensated the plaintiff.
Punitive damages
Extra-compensatory awards punishing and deterring conduct that is malicious, oppressive, or recklessly indifferent to others' safety, usually requiring heightened proof.
State Farm v. Campbell
Decision cautioning that single-digit ratios between punitive and compensatory awards will ordinarily satisfy due process and that out-of-state conduct cannot be punished.
BMW v. Gore guideposts
Three due process markers for reviewing punitive awards: reprehensibility of the conduct, the ratio to actual harm, and comparable civil or criminal penalties.
Wrongful death statute
Legislation creating a new claim for the decedent's beneficiaries to recover their own losses, such as support and lost society, from the death-causing tort.
Survival action
Statutory vehicle allowing the decedent's estate to pursue claims the decedent held at death, including pre-death pain, medical expenses, and lost wages.
Loss of consortium
A spouse's, and in some states a child's or parent's, derivative claim for lost companionship, services, and intimacy caused by injury to a family member.
Hedonic damages
Compensation for lost enjoyment of life; jurisdictions split on whether it is a separate item, part of pain and suffering, or recoverable by an unaware plaintiff.
Remittitur
A trial court's order conditioning denial of a new trial on the plaintiff's acceptance of a reduced award the judge finds excessive on the evidence.
Additur
The mirror device increasing an inadequate verdict subject to the defendant's consent; permitted in many states but unavailable in federal court under the Seventh Amendment.
Respondeat superior
Doctrine imposing liability on an employer for torts an employee commits within the scope of employment, without regard to any fault by the employer.
Scope of employment
The test asking whether the employee was performing work of the kind hired for, within authorized time and space limits, and serving the employer at least in part.
Frolic and detour
The distinction between a substantial personal errand that suspends employer liability and a minor deviation that remains within the employment relationship.
Bushey v. United States
Second Circuit case holding the government liable when a drunken sailor opened drydock valves, reasoning the risk was characteristic of the enterprise.
Independent contractor rule
General principle that a hirer is not vicariously liable for a contractor's torts, since the hirer controls the result rather than the manner of the work.
Non-delegable duty
An obligation so important, such as maintaining safe premises or performing inherently dangerous work, that the hirer stays liable despite delegating the task.
Apparent agency
Liability arising when a principal's representations lead a reasonable person to believe the actor is an employee and the person relies on that appearance, as with hospital emergency rooms.
Negligent hiring
A direct claim against an employer for carelessly selecting, training, retaining, or supervising a worker whose known unfitness foreseeably caused the plaintiff's harm.