Customer center

We are a boutique essay service, not a mass production custom writing factory. Let us create a perfect paper for you today!

Example research essay topic: Punitive Damages Recover Damages - 2,011 words

NOTE: Free essay sample provided on this page should be used for references or sample purposes only. The sample essay is available to anyone, so any direct quoting without mentioning the source will be considered plagiarism by schools, colleges and universities that use plagiarism detection software. To get a completely brand-new, plagiarism-free essay, please use our essay writing service.
One click instant price quote

... the case based on the facts alone and regardless of the absence of a direct link to the actual cause of the accident. The defendant could use affirmative proof to rebut the presumption of negligence show that the accident or injury was not the cause of neglect on the part of the defendant (Biggs, n. d. , pp. 12 - 13). It is one form of circumstantial evidence, which allows any reasonable person to establish probable cause in negligence litigation's. The res ipsa loquitur conclusion is appropriate especially when it is most likely that the defendant is culpable and no other explanations are evident (Res ipsa loquitur - elements, accessibility of evidence, the effect of res ipsa, 2008).

Three basic requirements to establish res ipsa loquitur in negligence cases include the inference of negligence where it could be surmised that the injuries sustained by a plaintiff in the case could not have occurred without some form of negligence on the part of the defendant. The presence of the exclusive control of the defendant over the conditions that caused the injury must also be established. The court interprets this as the defendant having exclusive control and management over the situation or premises at the time the incident occurred. However, res ipsa loquitur could not be applied to cases where they involved vicarious liability or be used against multiple defendants with the plaintiff claiming injury caused by another. Finally, the case must be free from issues of contributory negligence where the plaintiff is also accountable to a certain point (Res Ipsa Loquitur- elements, 2008). The Remedy of Damages in Negligence Available to Successful Plaintiffs The origin of claim doctrine is used to evaluate items used to replace the lost revenues in the cases considered.

The origin of claim test usually categorizes proceeds received for losses on security investments as ordinary capital, capital gain or nontaxable return of capital. For damages received as a consequence of lost interest and dividend income, these constituted as ordinary income. However, for damages received for harm to capital assets are considered nontaxable to the extent of the plaintiffs basis in the capital asset and are capital gain to the extent they exceed basis. (Luna, Smith and Hanson, 2004, p. 225) In cases where contributory negligence were found, the court use the following formula to calculate the recoverable amount for the plaintiff: Plaintiffs recovery = Defendants percentage share of the negligence causing the injury multiplied by Plaintiffs provable damages (Key Concept 9: Understand the differences between compensatory and punitive damages, n. d. ). There are limits to the amount that injured parties could recover damages. There are three principles pertaining to recoverable damages.

First, the plaintiff can only recover damages that could be proven. Speculative losses are non-recoverable. The defendant can only compensate the plaintiff on losses that were foreseeable within the duration of the transaction or agreement. Finally, plaintiffs should avoid possible breaches if he has knowledge about it. A plaintiff cannot recover damages for losses if he voluntarily pursues the transaction despite knowing about the risks (Key Concept 9: Understand the differences between compensatory and punitive damages, n.

d. ). The plaintiff can be able to get back general damages. General damages are compensatory in nature where it is difficult to quantify the amount of losses. Some examples of general damages include compensation for pain & suffering, loss of promotion or other opportunities, disadvantage in the labour market, pain and suffering, inability to carry out day to day tasks / hobbies, future loss of earnings etc. (What are general damages, 2008) The plaintiff can also recover special damages in negligence litigation. Special damages are those that the plaintiff has spent during the pre-trial and had lost because of injury, illness, or accident. The amount is quantifiable and the plaintiff can provide the court with commensurate evidences (What are special damages, 2008).

The plaintiff must also be aware that litigation proceeds are taxable. Under the US Federal Tax Code, exclusions are set forth in Section 104 (a). These include amounts received as Workman's Compensation Acts as compensation for personal injury or illness and b) any damages excluding punitive ones for personal injury or illnesses (State of Colorado, 1997, p. 3). However, recent legislations and court decisions provided new guidance on the tax ability of litigation proceeds including the legal fees accumulated.

Mason (2006) wrote that the new addition of IRC section 62 (a) (20) in 2004 in support of the October 2004 Congress enacted the American Jobs Creation Act which provides an above-the-line deduction for legal fees and court costs incurred in connection with discrimination awards allowed individuals involved in discrimination cases to deduct their legal fees and court costs from their gross income (p. 202 +). However, punitive damages in personal injury cases are still taxable. Defences Available to Unsuccessful Defendants There are several avenues unsuccessful defendants could pursue to protect themselves against liabilities. Not all accidents that cause injury to others will result in negligence litigation's.

The defence could justify such incidents or catastrophe as an Act of God. Another strategy that could minimise the impact of negligence liability is the use of Assumption of Risk. This provides the defence a way of preventing plaintiffs from recovering damages because both parties entered the agreement or transaction fully aware and accept the risks involved (Tort Law Negligence, 2008). The doctrine of assumption of risk is also referred to as volenti non fit injury in Latin. This translates as to a willing person, no injury is done. The doctrine prescribed that a person willingly or knowingly places himself in dangerous situations could not sue for any injuries resulting from that voluntary act (Volenti non fit injury, 2008).

There are three broad categories of assumption of risk. The principal assumption is the plaintiff gave his consent in advance to relieve the defendant of any legal obligations. As a consequence, the defendant is free from legal liabilities should injurious situations occur. The second is having the plaintiff entering into some form of relation voluntarily with the defendant knowing the defendant could not guarantee safety or to protect the plaintiff from risks. The plaintiff, in this case, consented to the negligence. Finally, the plaintiff voluntarily proceeds with the agreement or relation with the prior knowledge of a risk of negligence.

This deemed the plaintiff accepting the circumstances thus unburdening the defendant from any liabilities should adverse consequences occur (Assumption of risk - express agreement, implied acceptance of risk, knowledge of risk, voluntary assumption, violation of statute, 2008). Being cognizant of the risks associated with the transaction or agreement, the defence will use this to refute the claim of the plaintiff. Hence, the defendant will deny any duty of care and the plaintiff will not recover any damages because there was no wrongful conduct towards the plaintiff on the part of the defendant. In the second and third categories of assumption of risk, although the decision to enter into the agreement or transaction was irrational on the part of the plaintiff, the conduct of the plaintiff is considered as a type of contributory negligence, an act or omission by the plaintiff that constitutes a deficiency in ordinary care, which concurs with the defendant's negligence to comprise the direct or proximate cause of injury. (Assumption of risk - express agreement, implied acceptance of risk, knowledge of risk, voluntary assumption, violation of statute, 2008).

The defendant can reduce liability claims by using contributory negligence to counter plaintiffs claims. The doctrine of contributory negligence attributes some fault on the part of the plaintiff. This does not preclude the plaintiff from claiming damages but it should reduce the damages that plaintiffs could recover, as the courts would deem it to be a fair apportionment of fault and the claimant has some share in the responsibility of the damage. In From v Butcher (1976) QB 286, the court reduced the recoverable damages of the plaintiff because of the failure of the claimant to wear a seatbelt. In Forsikringsaktieselkapet Vesta v Butcher (No 1) [ 1989 ] AC 852 and Barclays Bank plc v Fairclough Building Ltd [ 1995 ] QB 214, the appellate courts held that contributory negligence can only be used as defence in cases where it could be established the breach as negligence by the defendant, which can be characterised as either breach of an implied contractual term imposing an obligation to take care or as a failure to take care under a tortious duty of care. (Contributory negligence, 2000). The basis for this doctrine is found in Section 4 of the Law Reform Act of 1945.

Section 1 indicates that two parties shares the responsibility of the fault (Contributory negligence, 2000). Conclusion The law rationalizes the awarding of damages so that these could not be used to perpetrate abuse on the part of purported victims. It is not about how large or how small the settlement amount. The important thing was the law sends a strong message to miscreants of society of the consequences of taunting the law.

To deter businesses and individuals that continue to commit inequities in society, the law provides a methodology where it would hurt them most: their pockets. References Assumption of risk - express agreement, implied acceptance of risk, knowledge of risk, voluntary assumption, violation of statute (2008). Retrieved September 9, 2008 from: Assumption of Risk - Express Agreement, Implied Acceptance Of Risk, Knowledge Of Risk, Voluntary Assumption, Violation Of Statute Barclays Bank plc v Fairclough Building Ltd [ 1995 ] QB 214. Retrieved September 8, 2008 from Westlaw Caselaw database. Biggs, R. A. (n.

d. ). A primer for the defense catastrophic claims resulting from mechanical commercial vehicular failure. Retrieved September 9, 2008 from: web Contributory negligence (2000). Retrieved September 9, 2008 from: web Entered, Henry van, Smith, R.

Todd. Environmental Regulations under Simple Negligence or Strict Liability. Apr 2002. Larson, A. 2003. Negligence and Tort Law. Retrieved September 8, 2008 from web Forsikringsaktieselkapet Vesta v Butcher (No 1) [ 1989 ] AC 852.

Retrieved September 8, 2008 from Westlaw Caselaw database From v Butcher (1976) QB 286. Retrieved September 8, 2008 from Westlaw Caselaw database Jones, G. G. and Luscombe, M. A. (1997).

Taxation of recoveries in Torts: What is still excusable? Accounting Today, 11 (8), 10 & 12. Kelley, P. J. and Wendt, L. A. (2002).

What judges tell juries about negligence: A review of pattern jury instructions. Chicago-Kent Law Review, 77, 587 - 623. Key Concept 9: Understand the differences between compensatory and punitive damages. Retrieved September 7, 2008 from: web Luna, L. A. , Smith, J... and Hanson, R.

K. (2004). Taxation of damages from securities lawsuits. The Tax Adviser, 35 (4), 224 - 228. Mason, R. (2006). New rules, new ruling: the tax treatment of litigation proceeds and legal fees, Journal of Accountancy, 202 (5) (2006), 73 +.

Palmer, K. A. (Nov 1995). Recent developments in the taxation of punitive damage awards, Taxes, 73 (11), 596 + Res ipsa loquitur elements (2008). Retrieved September 9, 2008 from: a href = " web ">Res Ipsa Loquitur - Elements Res ipsa loquitur - elements, accessibility of evidence, the effect of res ipsa (2008). Retrieved September 9, 2008 from: Res Ipsa Loquitur - Elements, Accessibility Of Evidence, The Effect Of Res Ipsa Smellie, R. (2002). Understanding the negligence issues.

Retrieved September 8, 2008 from: web State of Colorado (1997 January). Guide for tax reporting and withholding of settlement awards, Retrieved September 8, 2008 from: web Tort law negligence (2008). Retrieved September 9, 2008 from: Tort Law - Negligence Tort law - intentional torts, breast implant lawsuits, negligence, strict liability, causation, damages, immunity (2008). Retrieved September 9, 2008 from: Tort Law - Intentional Torts, Breast Implant Lawsuits, Negligence, Strict Liability, Causation, Damages, Immunity Volenti non fit injury (2008). Retrieved September 9, 2008 from: web What are general damages (2008). Retrieved September 8, 2008 from: web What are special damages (2008).

Retrieved September 8, 2008 from: web


Free research essays on topics related to: punitive damages, legal fees, recover damages, 2008, tort law

Research essay sample on Punitive Damages Recover Damages

Writing service prices per page

  • $18.85 - in 14 days
  • $19.95 - in 3 days
  • $23.95 - within 48 hours
  • $26.95 - within 24 hours
  • $29.95 - within 12 hours
  • $34.95 - within 6 hours
  • $39.95 - within 3 hours
  • Calculate total price

Our guarantee

  • 100% money back guarantee
  • plagiarism-free authentic works
  • completely confidential service
  • timely revisions until completely satisfied
  • 24/7 customer support
  • payments protected by PayPal

Secure payment

With EssayChief you get

  • Strict plagiarism detection regulations
  • 300+ words per page
  • Times New Roman font 12 pts, double-spaced
  • FREE abstract, outline, bibliography
  • Money back guarantee for missed deadline
  • Round-the-clock customer support
  • Complete anonymity of all our clients
  • Custom essays
  • Writing service

EssayChief can handle your

  • essays, term papers
  • book and movie reports
  • Power Point presentations
  • annotated bibliographies
  • theses, dissertations
  • exam preparations
  • editing and proofreading of your texts
  • academic ghostwriting of any kind

Free essay samples

Browse essays by topic:

Stay with EssayChief! We offer 10% discount to all our return customers. Once you place your order you will receive an email with the password. You can use this password for unlimited period and you can share it with your friends!

Academic ghostwriting

About us

© 2002-2024 EssayChief.com