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Duty to mitigate may not recover any damages which

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DUTY to mitigate→ may NOT recover any damages which could have been reasonablyavoided, esp. if P had soughtadequate medical care(doctrine of avoidable consequences)i.Contract to reduce moral hazard (people will just try not to get better so they can getmore $)ii.Zimmerman v. Ausland-injured in car accident; can’t exercise anymore; refused surgerywhich would’ve made the injury non-permanent1.can’t claim permanent injury damages if the permanent injurycould have beenavoidedby submitting to treatment by a physician when areasonable personwould do so under the same circumstances2.Standard → whether an ordinary, prudent person would have submitted to asurgical operation3.Factors → risk involved/probability of success/expenditure of money/effortrequirediii.Religious beliefs→ if failure to undergo treatment is caused by P’s religious beliefs, somecourts won’t admit evidence of those beliefs while others permit the jury to consider it indetermining reasonableness1.Is that a reasonable refusal to mitigate damages?Majority →courts don’t likepunishing people for exercising religious beliefsiv.Comparative negligencestates “don’t apply the rule” and instead treats failure tomitigate as a fault reduces but does not eliminate recoveryB.Physical Harm to Propertya.Determination of value →market valueat the time and place where the property was injuredi.Completely destroyed→ damages areits entire value at the time/place of the tortii.Damaged but not destroyed→ damages aredifference in value before/after injury(costof repairing the land is also admissible here)
Anne BurleyProf. Partlett, Fall2021Torts Outline46iii.Deprivation→ damages are thevalue of the use of which P has been deprived(rentalvalue is admissible here)b.If property has personal value, consider relevant factors (original cost, use, condition, etc.)c.For pets → not really allowed emotional distress/loss of consortium hereC.Punitive→ additional sum, over and above the compensation of P topunish D, admonish Dnot to do itagain, anddeter othersfrom following D’s example.a.Use punitive damages because compensatory damages might not be enough to bring a suit butfor cases likeMathias(bed bugs, it would be a public benefit to deter D from continuing tocommit the wrongful act and may be retribution)b.REQUIREMENTSi.Intentional torts→ must be outrageous behaviorii.Negligence→ must go far beyond negligence; must be reckless or arrogant disregard forP’s rights, or willful and wantoniii.To get punitive damages →must first be a viable claim for compensatory damages(may be sufficient if P proves the elements of her underlying cause of action, even if thejury doesn’t award compensatory damages)iv.States can portion some punitives to the state and NOT TO PCheatham-nudephotos; in Indiana; P only gets 25% of punitive damages; transferring the rest to the stateis not taking property because no right to punitive damages)v.Award must bereasonable and proportionateto the amount of harm and generaldamages1.If it’s grossly excessive → violates due process (Ex. State Farm v. Campbell) →stupidly excessive punitive damages; 1:145 ratio; court wrongly awarded punitivedamages for State Farm’s nationwide operations rather than for conduct directedagainst D)2.

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Term
Fall
Professor
KIRK
Tags
Tort Law, The Land, Anne Burley, Prof Partlett

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