Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
CHAPTER 10. DAMAGES
O reader, to what shifts is poor Society reduced, struggling to give
still some account of herself, in epochs when Cash Payment has
become the sole nexus of man to men!
THOMAS CARLYLE, CHARTISM 61 (1840)
– The ones showing up in court demanding justice, all they’ve got
their eye on’s that million dollar price tag.
– It’s not simply the money no . . . because the money’s just a
yardstick isn’t it. It’s the only common reference people have for
making other people take them as seriously as they take
themselves.
WILLIAM GADDIS, A FROLIC OF HIS OWN (1994)
“It was a shocking moment; it was a beautiful moment,” [Hope
Cheston] said of hearing the jury’s decision to award her $1 billion
in damages in a lawsuit against the security company that hired her
rapist. . . . When it was all over . . . jurors hugged her and told her:
“You’re worth something.”
Lindsey Bever, A Rape Victim Was Just Awarded $1
Billion, WASH. POST, May 24, 2018
So far in this book we have paid little attention to the endgame for torts claims. But of
course that will not do at all. Plaintiffs in tort suits bring claims to accomplish something.
Lawsuits are expensive and time consuming. Being in one can be a miserable experience. After a
dozen years of watching litigation from the bench, the great torts jurist Learned Hand remarked
that “as a litigant I should dread a lawsuit beyond almost anything else short of sickness and
death.” GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 122 (2d ed. 2010).
Why, then, do plaintiffs assert claims? The reasons are many. But one thing we can say
for certain is that in the United States, the remedy in a successful tort suit is virtually always the
payment of damages, measured in dollars. Courts do not, for example, require public apologies,
or acts of service to the decedent’s family, or jail time for the tortfeasor. Instead, the most oftstated
aim of damages in tort is to provide money damages sufficient to restore plaintiffs to the
condition they were in before the injury.
Of course, this aspiration immediately begs more questions than it answers. What are the
consequences of asking people to prove who they would have been, but for what someone else did
to them? What are the consequences of asking people to prove how “broken” they have become?
And even accepting that the goal of damages is to correct or repair (should we?), can money ever
restore the status quo ante? The notion is especially challenging in cases involving the loss of life,
limb, or mental capacity. And what does it mean to treat money as a kind of equivalent to such
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