1-5.
RECOVERY DAMAGES IN TORT CASES
a. Compensatory Damages. The purpose here is to return the injured party to
the position he was in prior to the injury to make him "whole." Recovery may be had for
all adverse physical and mental consequences of that injury.
b. Punitive (Exemplary) Damages. This serves to punish the actor and make
an example of him in order to deter others. Such damages may be allowed in cases
involving intentional or reckless conduct.
NOTE:
However, those punitive damages are not allowable under the Federal Tort
Claims Act in suits against the United States Government.
1-6.
LEGAL DOCTRINES
a. Respondeat Superior. "Let the master answer. "An employer is liable for the
wrongful acts of an employee if such acts occur within the scope of employment. As we
shall soon see, under the Federal Tort Claims Act, the United States (US) Government
may be held liable for our negligent acts, where those acts occur within the scope of our
employment.
b. Sovereign Immunity. Units of government are immune from tort liability
unless they consent to being sued. Unless the Government waives this immunity, it
cannot be sued. Again, as we shall shortly see, the Federal Tort Claims Act (FTCA) is a
limited waiver of this immunity. It is "limited" because the Government has not
subjected itself to civil liability for any and everything.
c. Res Ipsa Loquitur. "The thing speaks for itself. (Negligence may be inferred
(dispensing with the need for expert testimony) when: (1) plaintiff's injury was caused
by an instrumentality or condition which was under defendant's exclusive control at the
time; (2) in the ordinary course of events, plaintiff's injury would not have occurred if
defendant had used ordinary care; and (3) plaintiff's conduct did not significantly
contribute to the event which caused the injury. Examples of this would be operating on
the wrong part of the body, and leaving foreign objects in a patient's body after surgery.
Think of it this way, if a patient goes in to have the right arm amputated and you remove
the left arm, do you think the court needs an expert witness to testify that such conduct
breached the applicable standard of care? There is no need for expert testimony in
such a case, as a court can make this determination on its own.
1-7.
THE FEDERAL TORT CLAIMS ACT (1946)
a. Limited Waiver of Sovereign Immunity. Again, the waiver is limited,
because the objective wasn't to subject the government to liability for everything it did.
If that happened, the Government would be paralyzed under an avalanche of lawsuits.
Think about it; why waive immunity at all? Sovereign immunity results in injured
plaintiffs with no legal remedy; that is, they cannot bring suit against the wrongdoer. As
our society became more and more industrialized, we had more and more government
MD0033
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