For 2/8, read pp. 52-62 (We will focus on Buck and related issues and talk about Meinrath only a
little) and pp. 134-40, 166-70. This reading begins discussion of consequential damages and also
personal injury damages. Keep in mind the following questions:
1. What is the contract measure of damages in Buck? How much do you think damages
will amount to under the contract?
2. Do the contract damages represent the Buck plaintiff’s only loss?
3. What terms does the Buck court use to describe both kinds of damages that plaintiff
suffered? What is the standard for awarding consequential damages in tort cases? in
contract cases at common law? How do these standards differ? Which one applies in
Buck? Is the plaintiff entitled to consequentials under the facts of Buck?
4. Buck represents the common law approach to consequential damages. UCC Section
1-106 also allows for consequential damages. The relevant sections defining such
damages are 2-710 and 2-715. What is the difference between incidental and
consequential damages under Section 2-715? Why are sellers allowed only
5. Meinrath involves the availability of consequential damages upon the defendant’s
failure to pay money. Why doesn’t the Meinrath court award consequential
damages? Is the court’s reasoning sound? Is money never unique?
6. Is it inequitable to refuse to award consequential damages when the defendant has
failed to pay money due? What reasons are there for having such a rule?
Pain & Suffering Damages
1. Why do courts award damages for intangible injury such as pain and suffering? How
does giving anything more than damages for economic loss comport with the rightful
2. How do we value pain and suffering? Is it possible to place an adequate value absent a
working market? Much of the issue of valuation comes down to how attorneys present
arguments for such awards to the jury. How should plaintiffs’ attorneys be allowed to
present their argument of pain and suffering damages to the jury:
a. What are the arguments for and against allowing plaintiffs’ attorneys to present a
total valuation of pain & suffering damages (i.e., a lump sum) to the jury?
b. What are the arguments for and against allowing plaintiffs’ attorneys to present per
diem arguments regarding pain & suffering damages (i.e., $X per day for a period of
time) to the jury? (See Debus)
c. What are the arguments for and against allowing plaintiffs’ attorneys to present a
“golden rule” argument (i.e., ask juror to stand in plaintiff’s shoes) to the jury?
d. Since market value is the preferred measure in other damages context, should we try
to approximate something like market value here? What kinds of valuation would
get us closest to market value? Could you ask the jury to consider awarding the
amount a person would demand to suffer those injuries in a voluntary transaction?
Would a damages schedule work?