Gunn v.

Robertson

FACTS: The plaintiff sought general damages plus past and future medicals and wages, and loss
of earning capacity arising from an automobile accident with the defendant. His wife and
children sought loss of consortium. The jury rendered a verdict in favor of plaintiffs, finding the
defendant 70% at fault for the cause of the accident. The jury assessed the damages as follow:
$1,000 for physical pain and suffering, $1,700 for past medical expenses and $5,400 for past lost
wages. Plaintiff appealed alleging error in the jury’s finding of comparative fault and its award of
general and special damages

ISSUE: Whether the jury abusive its discretional power when they award the plaintiff
compensatory damages below what should have be reasonable in light of the circumstances of
the case.

RULE: Looking at past cases analogous to the injuries presented in this case, juries have
apportioned awards significant higher for injuries similar to the one presented in this case and
considering the pre-existing condition of plaintiff, the law is defendant takes his victim as he
finds him and is responsible for all natural and probable consequences of his tortuous conduct.
When the tortfeasor’s conduct aggravates a pre-existing condition, the tortfeasor must
compensate the victim for the full extent of the aggravation. Subsequently, a tortfeasor is
required to pay for medical treatment of his victim, even over-treatment and any pertaining
expenses that resulted from that defendant’s tortuous conduct

APPLICATION: Here, the jury should have awarded more for the plaintiff’s general and
special damages b/c (1) the plaintiff had a pre-existing spinal defect, which was aggravated by
the accident and testified by the plaintiff’s physician that the plaintiff will required surgery to
ease his pain. The rule of the court is a defendant has to take his victim as he finds him/her and
must compensate for the full extent of the aggravation; (2) the jury abused its discretional power
b/c prior cases that shows similarities to the plaintiff’s injuries have awarded more when plaintiff
can established with certainty, and supported by medical testimony the probable expenses to
cover the injuries. In this case, plaintiff presented evidence to support past medical expenses
which was undisputed by the defendant and for general damages attributed to pain and suffering;
and (3) third when a plaintiff can prove with preponderance of the evidence his claim of past and
future wages through his own testimony but also through medical evidence that indicates with
reasonable certainty that a residual disability causally related to the accident exists. In this case,
the plaintiff failed to prove by a preponderance of the evidence that the bid he placed on a
construction job would be accepted and defendant vocational expert testimony shows the
plaintiff was capable of some upward mobility which allows him to work in light/medium duty
jobs and giving time his potential earning capacities will increase.
CONCLUSION: Therefore, the judgment of the district court is amended to award to plaintiff
general damages of $25,000, along with special damaged of #13,942.19 for past medical
expenses, $59,915 for future medical expenses and $7,500 for past wages, subject to 30%
reduction for plaintiff’s fault.
Jordan v. Baptist Three Rivers Hospital

FACTS: The plaintiff sought damages for loss of consortium from the defendants’ negligence
that caused the decedent’s death. The defendants filed a motion for strike and a motion for
judgment on the pleadings asserting that TN law does not permit recovery for the loss of parental
consortium. The trial court granted the motion to strike.

ISSUE: Whether the plaintiffs’ claims for loss of spousal and parental consortium is viable when
the defendant’s negligence caused the decedent’s death

RULE: Survival statutes: permit victim’s cause of action to survive death, so that the victim,
through his estate, recovers damages that would have been recovered by the victim had the
victim survived; action includes damages for the death itself; recovery is the same as the
decedent would have been entitled to at death (wages lost, med expenses, pain & suffering)
Pure wrongful death statutes: another cause of action in favor of the survivors of the victim for
their losses occasioned by the death; compensate for the loss of econ benefit they might
reasonably have expected to receive from decedent during remainder of lifetime had they not
been killed = “pecuniary loss” standard of recovery

APPLICATION: Here, there are two statutes: One, the survival statute that transfer the
decedent’s right for cause of action against the negligence defendant unto the surviving spouse or
children. Second, there is the wrongful death statute that allows the surviving spouse and
children to seek compensation for loss of economic benefit the decedent would have provided
have they been alive. These two statutes are applicable to the plaintiffs in this case b/c the
plaintiffs loss their mother and spouse due to the defendant’s negligence. In this instance case,
the plaintiff seeks compensation for loss of consortium and as stated in this case, while
consortium is not implicitly stated in the statutes, it was implied by what the court labeled as the
pecuniary value. This pecuniary value covers all aspect such as expectancy of life, age, condition
of health and strength, capacity for labor, earning potential, profession and occupation or
business, and personal habits as to sobriety and industry. Pecuniary value extends to cover
different things in human life that makes someone a functioning part of a family both socially
and economically. The loss of those things is incalculable to the decedent’s surviving family.
Therefore, this surviving spouse and children are entitled to compensation subject to the
closeness of the relationship and dependence tot the decedent

CONCLUSION: Therefore, consortium-type damages may be considered when calculating the

pecuniary value of a deceased’s life – holding does not create a new cause of action but merely
refines the term “pecuniary value” Loss of Consortium - tangible services provided by a family
member, also intangible benefits each family member receives from the continued existence of
other family members (compensating for this)
RAEL v. F & S CO.

FACTS: The plaintiff was injured by a sudden explosion of a firework, in which plaintiff claims
to suffered ongoing headaches in the back of his head as a result of the explosion. Plaintiff filed
action against the seller and the defendant. Defendant filed cross-claims in which each sought
indemnity from the other. The jury returned a verdict of $7,000 for Π and $399 for the father
against both defendants jointly and severally.

ISSUE: Whether plaintiff should be compensated when pain and suffering that the plaintiff
incurred, headaches in the back of the head is not the type usually expected from the injury.

RULE: There two rules in determining pain and suffering: (1) when the injury is objective→
which are apparent to the anyone that pain and suffering is a necessity of that injury, then the
jury may infer such pain and suffering; (2) when the injury is subjective→ meaning the pain and
suffering incurred cannot with reasonable certainty be known to have occurred, then the Π must
offer evidence by expert witnesses, learned in human anatomy, who can testify, either from a
personal examination or knowledge of the history of the case, or from hypothetical question
based on the facts, that the plaintiff, with reasonable certainty, may be expected to experience
future pain and suffering, as a result of the injury proven.

APPLICATION: Here, the plaintiff’s injury is a subjective one that require expert testimonies
as to the likelihood of pain and suffering b/c the plaintiff failed to provide expert testimonies that
the headaches in the back of his head are caused by the accident, he failed to prove with
reasonable certainty his case for the jury to award damages for future pain and suffering.

CONCLUSION: Therefore, lack of expert testimonies in this case makes it impossible to

determine whether the plaintiff had incurred any pain and suffering at all.
Giant Food Inc, v. Satterfield

FACTS: The plaintiff slipped and fell at the defendant’s store. Plaintiff sues and the jury found
defendant negligent and awarded the plaintiff $2,500 for past medical expenses and $40,000 for
general damages. Defendant appeals from an adverse ruling entered by the circuit court arguing
trial court erred by denying him a particular jury instruction after the plaintiff’s counsel made a
per diem argument.

ISSUE: Whether the per diem argument which is a suggestive mathematical formula in
determining an award for pain and suffering should not be allowed to be given to the jury.

RULE: This is a state that allows such argument to be presented to the jury but conditioned only
to be used as long as it is instructed that the amount is not evidence, but a method suggested by
party for calculating damages.

APPLICATION: Here, there are several policy concerns for and against allowing such per diem
argument to be suggested to the jury. Policy reasons for suggest (1) jury should be guided by
some and practical standard; (2) jury should not be led to make guesses; (3) the absence of any
evidentiary yardsticks/standard makes it unlikely for the jury to be mislead; (4) the argument is
only a method the jury can used to make calculation; (5) the argument is not evidentiary but
merely a suggestion; and (6) opposing counsel is free to make the suggestion. Policy reasons
against (1) lack of evidentiary basis for converting pain and suffering into monetary terms; (2)
such suggestion of monetary equivalents for pain and suffering can be equate as testimonies not
disclosed by evidence; (3) juries mislead into giving higher awards; (4) admonitions of the trial
court that the argument is not evidence do not erase the prejudice; and (5) defendant is
disadvantage by being required to rebut an argument that has no evidentiary basis. This argument
for and against are somewhat viable by the jurisdictions that adopts them.

CONCLUSION: Therefore, the argument is permissible in this jurisdiction as long as the jury is
instructed that the argument is not evidence but merely a method for the purposes of calculating
damages.
Moody v. Blanchard Place Apartments

FACTS: P suffered electric shock from a stove in an apartment he rented from D. He received
neck injuries related to the shock. Lost past and future wages: economists testified for both P and
D. After trial on the merits, judgment was cast for the defendant. P appealed.

ISSUE: Whether plaintiffs’ awards for loss of future income/future earning not easily
susceptible to calculation is somewhat reflective of the experts’ calculations given the jury
deference.

RULE: When awards for loss of future income/future earning not easily susceptible to
calculation, the court needs to consider several factors in determining future lost income such as
(1) physical condition before and after injury (2) past records and the consistency thereof (3)
amount plaintiff would have earned absent the injuring complained of and the probability that he
would continued to earn wages over the balance of his/her working life.

APPLICATION: Here, the awards for loss of future income/future earning are not easily
susceptible to calculation as past income, or past medical expenses b/c several factors needs to be
considered in making that determination. The inherent method in making this calculation can
differ in some many ways even among experts well qualify to make such immerse calculation.
Best way to calculate: take base pay; add seniority increases (if it applies) and factor in inflation.
Generally you run one number, and then add 7% seniority and 3% inflation.

CONCLUSION: Therefore, awards for loss of future income/future earning capacity are
inherently speculative and cannot be mathematically calculated. Since neither of the math
calculations were unreasonable, gave deference to the jury.
Kaczkowski v. Bolubasz

FACTS: Wrongful death and survival actions were based upon automobile accident in which
decedent was fatally injured. Case tried first time, the jury established appellee liability. P
motioned for a new trial and the case was returned to the trial court for a retrial on the issue of
damages. The trial court charged the jury to consider the decedent’s personal characteristics….
And based on the instruction, the jury returned a verdict of $30,000 for the decedent.

ISSUE: Whether the trial court erred in excluding reliable economic testimony showing the
impact of inflation and increased productivity on decedent’s future earning power.

RULE: Three approaches which court uses to consider impact of future inflation and
productivity on lost future earning capacity:
a) Traditional – ignores effects of future productivity and future inflation as being “too
speculative.” Has been rejected by Commonwealth.
b) Middle Ground – permits factfinder to consider the effects of productivity and inflation,
but prohibits expert testimony on either (argue expert testimony is speculative, facts are
within “common experience” so jurors can use own knowledge)
i. Expert evidence is essential to accurate econ forecasting – do not accept
a) Evidentiary approach – factfinder can consider productivity & inflation – adopted by the
court.
i. Offset Present Value Method – subtracted the estimated inflation rate from the
discount rate to calculate the inflation adjusted “real” rate of interest.
ii. Total Offset Method – no adjustment for the interest rate b/c inflation will offset
it.

APPLICATION: Here, the court looked at three approaches (1) traditional approach, which the
court rejected as been too speculative b/c it ignores the issue the court needs to address as not
inclusive, not concretely accurate or efficient (2) middle ground→ which consider productivity
and inflation as relevant factors to considered but falls short because usually such calculations
requires expert testimonies to help make sense of the immerse mathematical calculation
involved. The approach suggested that jury common sense is all is needed to navigate through
the fact. Over the years, the forecastibility of the economic suggest experts expertise in making
the prediction which can be difficult even for an expert, not to consider leaving it to the judge or
the jury to make the prediction (3) evidentiary approach→ which consider productivity and
inflation but also gave two variants on how to proceed with such calculations. The first variant
which was established by the Fieldman case, allows a mixture of experts and lay witnesses to
testify as to the decedent past and future employment possibilities, and looked at similar person
with same qualifications to determine decedent productivity. The second variant illustrated by
the Alaska court, looked at the future earning calculations over the decedent life expectancy and
the court adopted the total offset method that makes it easier to calculate inflation without using
the six-percent interest rate adjustment.
CONCLUSION: Therefore, the total offset method equates the six-percent discount rates.
Peete v. Blackwell

FACTS: The defendant and the plaintiff were attending to a patient bleeding profusely. In haste
to stop the bleeding, insulted the plaintiff and struck her in the forearm demanding that she turn
on the goddamn suction. While there was no physical injury of any kind, the plaintiff
nevertheless sued. Plaintiff alleged defendant had committed an assault and battery and
demanded $1 for compensatory damages and $100,000 for punitive damages; the jury returned a
verdict against the P in the amount of $10,001 for the charges and for punitive damages. The trial
court entered judgment but did not rule for within 90 days and subsequently all defendant
motions were denied.

ISSUE: Whether the jury awards of punitive damages was excessive considering the plaintiff
suffers no physical injuries

RULE: Assault and battery will support an award of punitive damages whenever there is proof
that the act charged was wrongful and attended with insult or other aggravating circumstances

APPLICATION: Here, the evidence showed the defendant had insulted the plaintiff prior to the
incident, he had cursed frequently throughout the treatment, he had been yelling and hollering
prior to the event, and he threw a patient chart across a desk some time prior to the striking. All
this aggravating circumstances showed the way he degraded and embarrassed the plaintiff. The
aggravating circumstances in the form of angry and intimidating behavior had accompanied the
assault and battery. Giving punitive damages will deter him from this behavior in the future.

CONCLUSION: Therefore, on the basis of the evidence brought forward, an award is some
amount for punitive damages was proper in this case.
Shugar v. Guil

FACTS: The plaintiff and the defendant got in a scuffle in which blows were exchanged over a
continuing dispute as to whether the defendant owes money to the plaintiff and the plaintiff
coming into the store, bought a coffee and attempt to charge it on the house. D commented on
P’s cheapness and requested P to leave in which P responded “make me”. D proceeded to do that
and somewhat b/w the scuffle after been a bystander attempted to break up the fight; D struck P
in the face breaking his nose and causing it to bleed profusely requiring extensive medical
procedure to fix. The jury awarded P $2,000 for compensatory damages and $2,500 for punitive
damages.

ISSUE: Whether punitive damages should be awarded in addition to compensatory damages

when both parties were engaged in a fight that resulted in P getting injured.

RULE: To justify the awarding of punitive damages, there must be a showing of actual or
express malice, that is, a showing of a sense of personal ill will toward the plaintiff which
activated or incited a defendant to commit the alleged assault and battery.

APPLICATION: Here, there was no showing of actual or express malice b/c both parties were
engaged in a fight. Importantly, the fight was initiated by P. The fighting was not sufficient
evidence to infer that D’s actions were activated by personal ill will tow P or his acts were
aggravated by oppression, insult, or wanton/reckless disregard to P’s rights.

CONCLUSION: Therefore, there was no sufficient evidence to carry the issue of punitive
damages to the jury.
State Farm v. Campbell

FACTS: The plaintiff caused an accident that left one person dead and another permanently
disabled. Early investigation showed that plaintiff was the cause of the accident. The plaintiff
was insured by the defendant and the defendant expecting to pay for liability decided to contest
the liability assuring the plaintiff that their asset was safe, that they had no liability for the
accident and that they did not need to procure separate counsel. The jury deciding the plaintiff
was 100 percent at fault, returned a verdict of $185,849, which exceeded the settlement amount
the decedent would have paid had they not contested the liability. The defendant had initially
assure the plaintiff their asset was safe but at the end of the trial informed the plaintiff to “put a
for-sale signs on their property to get things moving” since they are not going to pay the
settlement. During the pendency of the appeal, the plaintiff make a deal with the victims of the
accident in which they will not collect on their judgment if the plaintiff is willing to sue the
defendant, using their lawyers and collecting 90 percent of the settlement against the defendant.
Plaintiff sued and defendant motion for a summary judgment which was initially granted b/c D
had paid the excess verdict but was reversed by on appeal. D moved for in limine to exclude
evidence pointing to its conduct out of sate but was denied. The trial court did granted D request
that the trial be bifurcate and trial by two juries. The jury returned the verdict on the first phase
of the trail finding the defendant’s decision not to settle to be unreasonable b/c there was a
substantial likelihood of an excess verdict. The second phase was of the trial was still pending b4
a case was decided that caused the defendant request exclusion of evidence of dissimilar out of
state case but was denied. Following the second phase of the case, the jury awarded the plaintiff
$2.6 million in compensatory damages and $145 million in punitive damages which was reduced
by the trial court to 1 million for CD and 25 million for PD but the decrement was reinstated to
the original amount.

ISSUE: Whether in this circumstances, an award of $145 million in punitive damages, where
full compensatory damages are $1 million, is excessive and in violation of the Due Process
Clause Of the Fourteen Amendment to the Constitution of the United States.

RULE: The Due Process Clause of the Fourteen Amendment prohibits the imposition of grossly
excessive or arbitrary punishments on a tortfeasor to the extent that it furthers no legitimate
purpose and constitutes an arbitrary deprivation of property.
Punitive damages amount can be consider looking at three guideposts:
i. The degree of reprehensibility of the defendant’s misconduct;
ii. The disparity b/w the actual or potential harm suffered by the plaintiff and the punitive
damages award; and
iii. The difference b/w the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases
APPLICATION: Here, the award was too excessive exceeded the guideposts set to determine
the extent of amount to award in punitive damages b/c (i) The degree of reprehensibility of the
defendant’s misconduct should be considered whether the harm caused was physical as opposed
to economic, the tortuous conduct evinced an indifference to or a reckless disregard of the health
or safety of others; the target of the conduct had financial vulnerability; the conduct involved
repeated actions or was an isolated incident; and the harm was result of intentional malice,
trickery, or deceit or mere accident. So, evidence suggest that the defendant had altered company
records to make plaintiff less culpable, disregarded the overwhelming likelihood of liability and
the near-certain probability that excess policy limits would be awarded and amplified P’s harm
by assuring them there asset will be safe and then telling them post-judgment to put their house
on sale, but this has no bearing on why the court awarded the excessive punitive damages. Stated
in the court’s opinion itself, the defendant was been punished for its conduct nationwide rather
for the harm they incurred on the plaintiff. Even more so, irrelevant acts that bear no relation to
P’s harm were introduced excessively in the case that that the court awarded PD as to punish and
deter those behavior.

(ii) The disparity b/w the actual or potential harm suffered by the plaintiff and the punitive
damages award should have been ratio out moderately. Although the court has set no bright-line
ratio which punitive damages cannot exceed, it nevertheless had explained that a single digit
ratio b/w PD and CD is sufficient to satisfy due process. Ratios that double, treble, or quadruple
are trending the limits that exceed due process. In this instance case, the ratio is 145-1 which
suggested excessiveness considering there was no physical injuries, harm occurred only from a
transaction in the economic realm, P only suffered minor injuries for only 18 months in which D
refused to settle. While punitive damages may be required to condemn that behavior, it was
covered by CD

(iii) the difference b/w the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases. In this case, comparable cases similar to this one for
fraud done to P is $10,000 fine and the reprimand of D losing its license were all broaden based
on compiled evidence nationwide that has no relation to the harm done to P.

CONCLUSION: Therefore, the punitive damages award was neither reasonable nor
proportionate to the wrong committed, and it was an irrational and arbitrary deprivation of the
defendant’s property. Case remanded for proceedings not inconsistent with this opinion.