Damage, Emotional | Gefühlsschaden
See damages for pain and suffering
Damages, exemplary | Exemplarischer Schadensersatz | dommages-intérêts exemplaires | risarcimento danni
A synonym for punitive damages. Exemplary damages are those damages arising out of the defendant's willful acts where such acts are ere malicious, violent, oppressive, fraudulent, wanton or grossly reckless. The justification of examplary damages is primarily punishment of the individual and deterrence of other individuals but secondarily as a form of compensation. In some cases of outrageous conduct, e.g. fraud, sexual abuse, or other intentional torts, the exemplary damages can be much greater than the actual damages.
Damages, General | Ersatz eines immateriallen Schadens | Courants danni generici
Those damages which ordinarily flow from the tortious conduct and thus need not be specifically pleaded as they are implicit in the plaintiffs complaint. Having proven the underlying act, the ordinary damages flowing therefrom are presumed, though such proof may be refuted at least in the case of libel. Though there is no necessary correspondance between general damages and primary injury and special damages and consequential damages that correspondance often occurs in fact. In fact prudence dictates that plaintiff’s plead all damages as special damages to avoid losing their substantive rights due to the procedural distinction between general and special damages.
Damages, Hedonic
Damages intended to compensate plaintiffs for the lost pleasure resulting from the injury. As hedonic damages inflate compensation and compensate an abstraction they are not recognized in all jurisdictions.
Damages, Monetary | Vermögensschaden
Monetary or pecuniary damages are those damages to the fortune of the victim. As such damages are concrete and material they are more easily measured than abstract rights (e.g. future contingent streams of income such as from a patent) or subjective emotions (pain and suffering).
Damages, Measure of | base d'évaluation des dommages-intérêts
The method used to calculate the damages sustained by the injured party.
Damages, Mitigation of | Obligation de limiter les dommages
The victim of a tort-feasor, though a victim, nonethless has an affirmative duty to do their best to reduce the damages consequent to the tortious misconduct. That duty is known as the duty to mitigate damages. The victim must take advantage of any reasonable opportunity he may have had under the circumstances to reduce or minimize the loss or damage.
The culpability of the defendant is irrelevant to the plaintiff’s duty to mitigate the damages. Defendants may thus raise the failure of the plaintiff to mitigate the damages as an affirmative defense not to the finding of liability but to the determination of the extent of damages.
For example, plaintiff who due to injury loses her job must nonetheless seek a new one but will be compensated for any lost wages and probably also (depending on the facts of the case) for their reduced income if the new employment pays less than the old.
Damages, Nominal | dommages-intérêts symboliques
A trivial sum awarded where only a breach of duty was shown with however no showing of damages or where the damages are minute. Such damages, generally of a small amount (e.g. one dollar) are a symbolic form of satisfaction and recognition of the abstract right of the plaintiff where no measurable loss arising from the injury is averred or proven.
Damages, Non-Economic
Damages for pain, suffering, loss of companionship, and loss of consortium (love of spouse). Unlike concrete material economic losses, such as lost wages, medical bills, and damage to property such damages are abstract. Non-economic damages may be limited by statute.
Damages for pain and suffering | schmerzengeld
Injuries to the plaintiff’s sense of well being; The non material damages to a victim of a tort which are remedied with money under a theory of compensation
Pure motional damages, where allowed, are generally only allowed to immediate relatives. However in cases where the defendant is in close proximity to a violent accident and thus felt themselves in danger pure emotional damages will be permitted. Further emotional damages for pain and suffering in addition to and as a result of some substantive material damages will also be allowed.
See also: intentional infliction of emotional distress, negligent infliction of emotional distress.
Damage per se / actionable per se | Eine Rechtsgutsverletzung wird einem kompensationsfähigen Schaden gleichgesetzt
A damage per se is one wherein damages are presumed upon occurrence of the tort, e.g. in cases of libel where the libel concerns imputation of crime, a loathsome disease, the unchastity of a woman, or words affecting the plaintiffs trade, business or profession. However per se damages may be able to be refuted by the defendant who will then bear the burden of proof for his affirmative defense.
Damages, presumed
Damages which do not require proof as they are presumed as a matter of law to result naturally and necessarily from a tortious act.
Damages, punitive | dommages-intérêts punitifs
See also: exemplary damages (syn.)
Punitive damages are those damages awarded in case of willful, wanton, or malicious conduct. They may even be available in cases of reckless negligence if the damages are particularly severe or in cases of fraudulent acts. Punitive damages serve to punish the defendant and deter others. The plaintiff must prove both the necessity and extent of punitive damages according to the ordinary standard of a preponderance of the evidence. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is reckless if it reflects a complete indifference to the safety and rights of others.
Damages, Special | Ersatz eines konkretes Vermögensschadens | dommages-intérêts spéciaux
Those damages which do not arise ordinarily out of the injury but which arise extraordinarily and thus must be specifically plead and proven. Such damages are nonetheless concrete and material as opposed to abstract. That is they are calculable in economic terms. Special damages must be plead and proven in cases of slander. E.g. a plaintiff’s has been burgled, and as a consequence must seek lodging elsewhere. This consequential damage, having to pay a hotelier, must be specially plead and proven.
Sometimes the special damage is said to constitute the substance of the action itself; for example, in an action wherein the plaintiff declares for slanderous words, which of themselves are not a sufficient ground or foundation for the suit, if any particular damage result to the plaintiff from the speaking of them, that damage is properly said to be the substance of the action.
Special damages can include medical bills, repair and replacement of property, lost wages and other concrete damages which are not abstract speculative or subjective.
Damages, Treble / Treble Costs | Strafschadensersatz
Treble damages is the measure for an award of punitive damages. The actual calculation of punitive damages is not fixed according to a formula and must in all cases be proven by the plaintiff, first as to existence, second as to extent. However those damages can be as high as three times the substantive damages plus the plaintiffs attorney’s fees and costs. Treble damages may also be governed by statute which may abrogate the common law rule.
E.g., if a jury awards twenty dollars damages and punitive damages would be forty dollars more. However the construction of treble damages is different from that of treble costs.
Damages, Treble costs
Treble costs are sometimes awarded by statutes. When an act awards treble costs, the party is allowed three times the usual costs, excepting the fees and costs of their attorney which are not trebled.
Damnum sine injuria
Literally condemnation without injury, often mis-translated as damages with no injury but in fact would be better translated as injury (a wrong) with no damages (a measure).
Refers to the legal situation in which plaintiff’s right is not respected by another but where the breach of plaintiff’s right does not cause a damage, or at least not a calculable or admissible damage. A finding of damnum sine injuria can be the basis for a finding of nominal damages (q.v.).
Deceit | Arglistige Täuschung | Betrug
Deceit is a tort of fradulent misrepresentations: it’s elements are:
1) A fraudulent statement
2) Made with intent to decieve
3) Which induces reliance on the part of the plaintiff
4) And results in injury to the plaintiff.
The tort will also lie where the statement was made with reckless disregard as to its truth or falsehood.
Deceit is similar to the tort of passing off; however in the tort of deceit the injured plaintiff is a consumer, and in the tort of passing off the injured plaintiff is a competitor.
In some jurisdiction deceit or fraud is a statutory tort and includes an action against false advertising.
See: Karlin v. IVF America, 1999 N.Y. LEXIS 815, *; 93 N.Y.2d 282; 712 N.E.2d 662; 690 N.Y.S.2d 495 (Suit for false advertising permitted under fraud statute in case of medical misrepresentation).
Defamation | Verleumdung / Üble Nachrede / Beleidigung
Communication to third parties of false statements about a person such that the statements injure the person’s reputation or dissuade others from associating with them.
There are two forms of defamation, slander, which is oral and libel which is written. In cases of slander, damages must be proven, but in cases of libel damages are not presumed and must be proven.
Truth is a defence to an accusation of defamation.
This tort corresponds, roughly, to the German torts of Verleumdung, üble Nachrede, and Beleidigung.
Beleidigung is a more extensive injury than defamation and includes words which are insulting or emotionally injurious.
At common law in England a court could order the defaming defendant to offer an apology.
Defamation and Public Figures
Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment.
Defamation and the Constitution
In the U.S. the First Amendment freedoms of speech and press must also be considred. New York Times v. Sullivan, 376 U.S. 254, 264 (1964); Masson, 501 U.S. at 510. The U.S. constitution protects statements of opinion on matters of public concern that do not contain or imply a provable factual assertion. Milkovich, 497 U.S. at 20.
Defamation and Opinion
To determine whether a statement implies a factual assertion, courts examine the totality of the circumstances in which it was made. They look at the context and contents which the work present – the subject of the work and the setting in which the subject is treated. The court will look to the language for hyperbole or figurative language. They look to see whether the statement can be proven or disproven and whether it merely expresses an opinion.
A flaw in a product which causes it to malfunction which malfunction may lead to a tort. See: products liability.
A defect is ordinarily a condition precedent to the finding of a tort under a theory of strict liability. However there are exceptions to the rule: in cases of negligent supply by a merchant of an inherently dangerous product to minor the manufacturor can also be held liable.
Defective Product
Where a product is defective the products manufacturer can be implicated in tort on a theory of strict liability.
A product is in a defective condition, i.e. is unreasonably dangerous to the user, when it has a propensity or tendency for causing physical harm beyond that which would be contemplated by the ordinary user.
A defective condition is a legal cause of injury if it directly produces the injury. A defective condition may be a legal cause of damage even though it operates in combination with the act of another, or some other natural cause.
Thus, in cases involving defective or unreasonably dangerous products the manufacturer may be liable even though it exercised all reasonable care in the design, manufacture and sale of the product in question.
Manufacturers are not on always liable for accidents resulting from misuse of their products. The manufacturer is not an insurer. The mere possibility that injury result from the use of a prodcut is insufficient to impute liability to a manufacturer. (Moomey v. Massey Ferguson, Inc., C.A.N.M., 429 F.2d 1184. 1184.) here is no duty upon the manufacturer to produce a product that is 'accident-proof.' However the manufacturer is required to make a product free of defective and unreasonably dangerous conditions.
No comments:
Post a Comment