TQ WEEK 7 TORTS

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Seton Hall University *

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6008

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Law

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Feb 20, 2024

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docx

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2

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TQ WEEK 7 TQ 7.1: What types of losses can plaintiffs recover as compensatory damages? Both economic and non-economic loss components may be recovered by the plaintiff. This covers lost wages, medical costs, and pain-and-suffering-related damages. This could include losses the plaintiff has already incurred as well as anticipated losses they might incur in the future. TQ 7.2: Describe a case (real or made up) in which an injured plaintiff would be able to establish duty, breach, actual and proximate causation but could not establish significant compensatory damages. On a highway, a driver is traveling at 60 mph, which is the posted limit. This driver veers off course and collides with another car. Because of this, the other motorist sustained injuries, and their car sustained major damage. The speeding driver owed it to the other driver to maintain a respectable speed. He made an irresponsible decision to drive faster than the speed limit, which led to the accident. However, the accident's cause could not be established. Although one of the drivers was speeding and both knew it, the plaintiff was unable to establish this. The plaintiff's inability to forecast future losses may also make it difficult to show substantial compensatory damages. TQ 7.3: In Philip Morris USA v. Williams , did the Supreme Court rule that juries may never consider evidence of harm to others in deciding whether to award punitive damages? If not, explain how a jury could consider evidence of harm to others without violating the defendant’s constitutional rights. In Philip Morris USA v. Williams, the Supreme Court decided that if the jury had decided to punish the manufacturer for damaging third parties in part by awarding punitive damages, this amounted to a seizing of the firm's property without due process. Punitive damages awarded to penalize a manufacturer for harm caused to outsiders to the case, without giving the accused party a chance to defend themselves, violated due process. It is acceptable to take nonparty harm into account when establishing reprehensibility. The jury was therefore advised that even though harm to third parties was important to whether or not a crime was committed, punitive damages could not be granted to hold the maker accountable for such harm. TQ 7.4: With enactment of CA Civ Code §3361 on January 1, 2020, California became the first state to prohibit use of race and gender-based data in calculating damages in tort actions. After reviewing §3361and Jesse Schwab’s article, The Problem with Defining Tort Damages in Terms of Race & Gender, identify the ways in which race and gender have been used historically to reduce tort damages. Explain whether you think statutes such as CA Civ Code §3361 will be sufficient to prevent juries from relying upon race or gender in calculating damages. In addition, identify the proposed steps Schwab suggests should be taken to prevent use of race and gender in damage calculations. Explain whether you agree or disagree with Schwab’s recommendations. Describe any additional recommendation(s) you believe should be taken to prevent the use of race and gender in damage calculations. Race and gender have historically been used in a variety of ways to lower tort damages. The "discounted lives" strategy, which devalues a person's life based on their race or gender, is one way to do this. This strategy has been applied in wrongful death, personal injury, and other harm suits. Another method is to apply various proof criteria to certain categories of people. For instance, in some situations, race or
gender has been utilized to raise the burden of proof for plaintiffs or lessen it for defendants. Finally, separate damage caps have been established based on race and gender. For instance, some states impose lower caps on women's pain and suffering damages than they do on men's. I believe that laws like California Civil Code Section 3361.1 will be sufficient to ban jurors from considering gender or race when determining damages because they set forth standards for how damages should be determined. However, the suggested actions Schwab believes should be taken to stop race and gender from being used in harm estimates are more likely to be successful in stopping juries from doing so. I concur with Schwab's suggestions. I believe that racial and gender distinctions in harm assessments ought to be eliminated. I believe that additional suggestions should be made to stop the inclusion of racial and gender factors in damage estimates.
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