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Professor Jacobson Fall 2004
8/30/04
Hawkins v. McGee
Hawkins had 2 claims:
1. oral contract breached between dr. and patient to give perfect or good hand- breach of
contract
2. Negligence- dr. was careless. Plaintiff failed to produce sufficient evidence, so thrown
out by the court- non-suit
Motion- request to the court for an order
The motion that award was excessive was good-Dr. McGee granted a remittitur -after verdict,
dr. asked for a new trial unless Hawkins remit all $ over $500. Hawkins appealed b/c didn’t want
less $ saying trail judge made error of law in granting remittitur.
McGee made own list of legal errors.
SC said:
1. Trial judge should have granted dr.’s motion for directed verdict b/c insufficient evidence
for the jury to use ( sufficiency test ) and then error was instructions to the jury about
damages.
Subjective theory of contract formation -McGee wanted court to instruct jury that contract only
exists if both parties believe they are making a K. But in NH, follow objective theory -only 1
person had to think K-if a reasonable person could think an offer for K was made, and then if
person does, K valid.
*Intent of the offerer is irrelevant to the formation of the contract if a reasonable person
would understand that a K was made.
2. damage instruction was wrong-that they should restore him monetarily to the position he
was in before the operation and compensate for worsening of conditions (this was
premised on the tort damage measure-restore person to position before the tort)
*this would have been measure of damage had the negligence claim prevailed b/c
negligence is a tort.
>needs to be contract measure here b/c Hawkins used the K theory to go to trial. K
damages put the promise in the position he would have been in had the promissor
performed. (THE P PHRASE)
K damages look to the future hypothetical position he would have been in, while
tort damages look to the position in the past and restore that position.
Three interests being considered in breach of K cases:
1- reliance -$ lost for following K bought stove and now don’t want
2- restitution -$ gained by breaching party
3- expectancy -promised future condition diff b/t $ in K and lesser amount got
What would we have to do with Hawkins to do the p phrase?
1. What he would have been able to do with good hand and the damaged hand he has for all
his work over his whole life and discount it. (Discount Rate-how much do you have to
discount to determine the PV of future income=based on the risk-free interest rate [t-bill
rate])
2. Doctrine of Mitigation-compensate for cost of a second operation that would repair his
hand.