Tricky Torts Hypo

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TTH
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Tricky Torts Hypo

Postby TTH » Fri Sep 23, 2011 12:57 pm

A 1L asked me this and I was stumped.

D causes harm to P through negligence. P suffers harm X immediately and sues. However, P knows with absolute certainty that ten years from now, he will suffer harm Y as a result of the tortious act. Can P recover damages for the future injury Y when it hasn't materialized at the time of the suit and won't for some time?

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masochist
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Re: Tricky Torts Hypo

Postby masochist » Fri Sep 23, 2011 1:06 pm

TTH wrote:A 1L asked me this and I was stumped.

D causes harm to P through negligence. P suffers harm X immediately and sues. However, P knows with absolute certainty that ten years from now, he will suffer harm Y as a result of the tortious act. Can P recover damages for the future injury Y when it hasn't materialized at the time of the suit and won't for some time?


Uninformed 1L opinion here, but wouldn't lost future earnings be an example of harm Y? Or, for another example, wouldn't the certain future death from asbestos-related mesothelioma be an injury for which a plaintiff could recover in advance?

morris248
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Re: Tricky Torts Hypo

Postby morris248 » Fri Sep 23, 2011 7:22 pm

If you can prove it, you can collect. One example would be a hip replacement that only lasts ten years. Future medicals and loss of earnings are always plead.

latnem
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Re: Tricky Torts Hypo

Postby latnem » Fri Sep 23, 2011 7:32 pm

morris248 wrote:If you can prove it, you can collect. One example would be a hip replacement that only lasts ten years. Future medicals and loss of earnings are always plead.


Absolutely correct...OP, check out Glannon's Torts E&E. He discusses this in depth.

target
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Re: Tricky Torts Hypo

Postby target » Fri Sep 23, 2011 7:57 pm

morris248 wrote:If you can prove it, you can collect. One example would be a hip replacement that only lasts ten years. Future medicals and loss of earnings are always plead.


Agreed. Duty, breach, causation, and damages. If you can't show damages for harm Y now, it's not actionable.

Disclaimer: 1L

BlueDiamond
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Re: Tricky Torts Hypo

Postby BlueDiamond » Fri Sep 23, 2011 8:04 pm

target wrote:
morris248 wrote:If you can prove it, you can collect. One example would be a hip replacement that only lasts ten years. Future medicals and loss of earnings are always plead.


Agreed. Duty, breach, causation, and damages. If you can't show damages for harm Y now, it's not actionable.

Disclaimer: 1L


did you just agree.. and then disagree?

wallawhite1987
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Re: Tricky Torts Hypo

Postby wallawhite1987 » Fri Sep 23, 2011 8:25 pm

You would have to be certain that you will experience Y in the future. Only a minority of jurisdictions will allow you to collect damages for something that may happen in the future.

agathos
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Re: Tricky Torts Hypo

Postby agathos » Fri Sep 23, 2011 9:32 pm

If the chance what will happen is less than 100%, there is not doubt most court will reject your claim .

But there are two reasons why court reject this kind claim
1. the harm would happen , however, not 100% . If court accept the claim , D will compensate P for no harm
2. P can not suit D twice for the same causation. P may get 100% harm, only 50% compensation (assuming P 's chance is 50%)

In this case, those reasons does need to be consider.
So... I do not know...

target
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Re: Tricky Torts Hypo

Postby target » Fri Sep 23, 2011 9:35 pm

BlueDiamond wrote:
target wrote:
morris248 wrote:If you can prove it, you can collect. One example would be a hip replacement that only lasts ten years. Future medicals and loss of earnings are always plead.


Agreed. Duty, breach, causation, and damages. If you can't show damages for harm Y now, it's not actionable.

Disclaimer: 1L


did you just agree.. and then disagree?


Sorry for the confusing language. I meant if the claimant can't show damages for harm Y, which may materialize now, soon, or in a foreseeable future, now in current hearings, it's not actionable. Hope this is clearer.

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Gamecubesupreme
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Re: Tricky Torts Hypo

Postby Gamecubesupreme » Sat Sep 24, 2011 1:01 am

Pretty sure res judicata would also apply in this case if the person didn't sue.

Then again, Civ Pro was last semester and I vaguely remember there being some kind of exception to res judicata in situations like this...

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savagedm
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Re: Tricky Torts Hypo

Postby savagedm » Sat Sep 24, 2011 1:22 pm

morris248 wrote:If you can prove it, you can collect. One example would be a hip replacement that only lasts ten years. Future medicals and loss of earnings are always plead.


+1, only if it is uncertain can you not collect. The thing that matters is that you WILL suffer it at some point in the future and that can be predicted with reasonable certainty.




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