Offsetting benefits

1. Offsetting benefits • Judicially imposed requirement that P’s damages should be reduced by amount of any benefit that D conferred upon P as a result of D’s wrong. • Tort - law requires that the benefit be to the interest harmed • (1) Are the interests congruent, and (2) does P consider it a benefit? • Contract - Offset is built into contract formulas – hence the requirement that B/S recover the DIFFERENCE between the contract and mkt/resale/cover price • Another common scenario in breach of contract - saved expenses are considered a common “benefit” • Window washing contract breached where P was to be paid $3K – any saved expenses ($500) should be offset against $3000 contract price • Opportunity gained as a result of breach is a benefit • If D’s breach on window contract allows P to enter another K for the same time with the same expenses - offset value of new contract against damages from the first

2. Collateral Source Rule - Torts P may recover damages that include amounts for which plaintiff has already received compensation from sources independent of and collateral to D. • D is not entitled to admit as evidence or reduce P’s damages with the compensation P receives from independent sources. • Classic examples of collateral sources: • Insurance payouts • Benefits programs (Medicare, SS, Disability, etc.) – tricky? • Sick leave plans • Compare to offsetting benefits • What is the reason for this rule?

3. Personal Injury Damages • Two kinds of Damages • Economic Harm • Hospital bills, lost wages, etc. • Pain & Suffering • Continuing pain, mental anguish, distress, discomfort, disfigurement, loss of enjoyment of life

4. Personal Injury Damages – Rationale & Valuation • Rationales for awarding pain & suffering damages: • D should be made to know that her actions have caused harm • P should be given enough money to buy happiness to offset the pain/suffering D has caused • How do we value pain & suffering – such ascontinuing pain, mental anguish, distress, discomfort, disfigurement, loss of enjoyment of life – when trying to award damages? • Was it difficult to value damages in the survey when asked to determine “appropriate compensation”?

5. Valuing Pain & Suffering Damages – closing arguments & jury instructions • Without easy methods of valuation, the jury gets most of its direction regarding such valuation in closing arguments (or jury instructions). Most of the law on the issue involves the validity of “framing” of closing arguments. • The issue in Debus and similar cases involves whether P’s attorney can make certain kinds of arguments to support a claim for damages in their closing arguments. • As you can see from the case and the notes – some arguments are disfavored while others aren’t.

6. Kinds of closing arguments re pain & suffering damages – which is better/worse? No dollar figure is suggested – Jury told to “award appropriate compensation” Lump sum– Presents a dollar figure she wants the jury to consider. • My client has suffered greatly. … Surely her pain & suffering is worth $385,000. (D’s suggested approach in Debus) Per diem– Break down damage award into daily units • If you multiply 35 years times 365, there are 12,775 days. And 12,775 days times $30 per day comes out to $383,250. (Debus/ Survey p. 4) Golden Rule– Ask the jury to “stand in” P’s shoes when considering damages • Survey, p. 3 - “Imagine the following situation from the injured persons’ point of view. You have recently suffered the injury …” Market Value/Selling Price– Ask the jury to consider “what price they would require” to suffer the injury if they were the injured party. • Survey, p. 5 – “You are offered an amount of money to experience the injury. … What amount of money would be just enough to make you accept the injury?”

7. Pain & Suffering Arguments – what the states allow: • 2 states limit closing argument to general statements – NO dollar figures allowed at all • 48 states at least allow plaintiff’s counsel to state a lump sum dollar figure in closing argument • Jurisdictions are pretty evenly split on whether to allow “per diem” statements in closing arguments • 1/3 allow, 1/3 disallow, 1/3 allow with limiting jury instruction • Missouri law does not allow such statements (Faught v. Washam, 329 S.W.2d 588 (1959) • No state law allows golden rule or anything like the market-based arguments.

8. What happens when a personal injury P dies -- do pain & suffering damages die with her? • Not entirely. Most states have survivor statuteswhich allow P’s estate to sue for lost economic damages and pain/suffering damages on P’s behalf • BUT such statutes are usually limited to damages incurred while P was alive. P’s estate cannot recover for any theoretical P&S that P might have incurred after death. • If P’s lifespan after his injury was supposed to be 20 years but he dies after 2 years, his estate cannot recover theoretical pain & suffering he would have suffered had he remained alive. • See, e.g., Mo. Rev. Stat. 537.090

9. Wrongful Death Lawsuits – what are they? • Brought by survivors of the decedent on their own behalf • Seek damages representing survivors’ losses as a result of decedent’s death • Heavily regulated by statute – e.g., Mo. Rev. Stat. 537.080 & 537.090 • Typically regulate WHO can sue and TYPES of damages available • We will focus primarily on “types of damages” BUT note that “who” can recover is an issue too – see Mo. Rev. Stat. 537.080, which establishes classes of persons who can sue in priority order.

10. What kinds of losses can a wrongful death P recover? • Original rule – pecuniary losses only • Medical/funeral expenses, loss of support (what decedent earned less what she would have spent on herself) • No state limits recovery to these losses anymore • Broader version of the rule – most states allow recovery of pecuniary losses & loss of services • Loss of services = training, nurture, education, counsel, housework, etc. • How should we measure the value of lost services?

11. Additional possible recoveries for wrongful death depending on the state: • Loss of society – a slight majority of states also allow • Loss of society = Loss of companionship, comfort, attention, love … • Note Missouri (like many states) – loss of positive attributes only – why? • How should we measure loss of society? • Loss of inheritance – some states allow recovery here too • Loss of inheritance = the amount of $ that P can show decedent’s estate would have accumulated over and above the value of financial support • Should it be available – on what terms?

12. Hedonic & Punitive Damages w/ Wrongful Death Hedonic damages • Damages allowing survivor to recover for value of decedent’s loss of life – i.e., recovery for intrinsic value of life itself • General rule: Not available in wrongful death actions • Compare recovery of “hedonic” (aka “loss of enjoyment of life”) damages in personal injury context Punitive Damages • Jurisdictions split as to whether punitive damages are available in wrongful death actions • Missouri – judges have read the statute to allow punitive damages