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