Chapters 8-11 Flashcards
Compensatory Damages
An award by a judge or jury designed to compensate the plaintiff for physical or financial losses
Types of Compensatory damages
There are 2 types of compensatory damages: general (nonspecific) and special (specific)
General Damages
Those awards that are closely tied to the defendants negligence. E.G pain and suffering, Hard to quantify and is usually determined by the jury
How is “pain and suffering” awarded?
By the jury using the reasonable person standard
Per diem
By the day or daily, when an attorney asks the jury how much it is “worth” per day to deal with the plaintiffs pain
The plaintiff is entitled to request reimbursement for….
Past losses and any future losses tied to the defendants’s negligent conduct
Special damages
Those damages, such as medical bills, closely tied to the plaintiff’s injury and for which a specific amount can be calculated to a reasonable certainty
What damages are tied to whom
Some authorities state that general damages are tied to the defendants actions while special damages are tied to the plaintiff’s losses
Fair Market Value
The amount that a willing buyer would pay for an item that a willing seller would accept
Collateral Source rule
An evidentiary rule that prohibits the jury from being told about the plaintiff’s other sources of compensation, such as insurance, workers comp, etc
Mitigation of damages
The responsibility of the plaintiff to lessen her potential injuries or losses by taking reasonable actions to seek medical treatment or take other precautions when a reasonable person in the same situation would have done so.
Mitigation of damages is also seen in what other type of lawsuit.
It is often seen in contract disputes. A vendor has an obligation to sell perishable merchandise to another when the original customer refuses to purchase it. The vendor can then sue the original purchaser for the difference between what he would have received on the sale and what he actually received from the other purchaser.
Emotional Distress
In most states, psychological impact must be coupled with physical distress. It can include plaintiff sufferings in the past, but also any mental distress the plaintiff is likely to endure in the future.
Loss of consortium
A claim filed by the spouse of an injured party for the loss of companionship caused by the injuries.
Punitive Damages
Punitive Damages are designed to punish the defendant for his actions, they can be tailored to actions and income.
Nominal Damages
The jury’s award of a small amount of money to the plaintiff, used to show that the plaintiff presented a proficient case, but the jury believes the plaintiff’s injuries are non existent. They are typically not seen in negligence cases because the plaintiff must prove losses as a part of his case
Equity
The court’s authority to order individuals and corporations to do and not to do certain activities because they are unjust
Injunction
A court order that demands a certain action or that prohibits a certain action
Declaratory judgement
A court order that specifies that duties and obligations of a party
Contributory Negligence
A defense available in only a few jurisdictions that provides that a plaintiff who is even partially at fault is barred from any recovery
If a plaintiff is found to be contributory negligent he/she will receive NOTHING no matter how severe her damages
called on of the harshest doctrines of law
Justification is that a plaintiff should enter a court with “clean hands” and the premise that justice is best when the courts stay out of the business of apportioning degrees of fault among the parties
It is a way for judges to keep control of juries that might be sympathetic to a plaintiff and award large damages against a major corporation
Proposed names include “contributory fault” or “contributory misconduct”
A defense of contributory negligence…
Presumes negligence on the part of the defendant
Comparative negligence
will lessen the plaintiffs recovery in proportion to his own negligence in bringing about his own injuries
Basic issues in contributory negligence
Is whether the plaintiff knew the danger he was in, whether he failed to exercise ordinary care to protect himself, and whether his failure to exercise such care contributed in some ways to his own injuries.
Negligence per se and contributory negligence
In some jurisdictions the defendant’s violation of a safety statute (negligence per se) bars the use of contributory negligence as a defense
Last clear chance doctrine
A claim by a plaintiff in a contributory negligence allegation that the defendant was the person who had the last opportunity to avoid the event that caused the plaintiff’s injuries and therefore the defendant should remain liable for the injuries, despite any negligence by the plaintiff
also known as the doctrine of discovered peril, the doctrine of supervening negligence, the humanitarian doctrine, the doctrine of gross negligence, and the doctrine of subsequent negligence
In jurisdictions that have adopted comparative negligence, last clear chance has generally been abolished along with contributory negligence,because it is so closely tied to that doctrine
Sudden emergency
A doctrine that relieves a person of the normal standard of care because of a swiftly developing and dangerous event.
A prudent person in the face of a life threatening danger, may not always exercise the same degree of judgement that a hypothetical reasonable person would.
Other terms for reckless negligence
willful, wanton, or gross negligence
Comparative Negligence
An approach to negligence cases that balances the negligence of the defendant against the negligence of the plaintiff and permits a reduced recovery for the plaintiff in proportion to the plaintiff in proportion to the plaintiff’s negligence
What are the three forms of comparative negligence
Pure, Modified, Slight-Gross
Pure comparative negligence
A plaintiff is entitled to recieve an award no matter how great his/her fault, assuming the defendant is also found to be at fault.
For example, should the plaintiff be found to be 75% negligent and the defendant 25% negligent, the plaintiff would only be entitled to 25% of total damages
Pure comparative negligence has been adopted in N.Y CA and FL.
Modified Comparative negligence
“50 percent rule”
If the plaintiff’s negligence is greater to be less that 50% he or she will receive no recovery, if it is equal to the defendants percentage of negligence he/she will receive 50% of the damages
Slight Gross Comparative Negligence
Only followed in a small percentage of jurisdictions, A plaintiff is entitled to recover if her/his negligence is slight, however if it is more than what a jury would consider to be slight then the plaintiff is barred from any recovery
Strict Liability
A finding of liability regardless of fault.
Some activities are so dangerous that a person is liable for harm even if they were not negligent
Also known as absolute liability
Ultra-Hazardous
A condition of special or unusual dangerousness like sky diving
Products liablity
The liability assessed against a manufacturer, seller, wholesaler, etc. for placing a dangerous or defective product on the market that causes injury or damages.
The idea behind products liability is that a manufacturer can be liable for producing a defective product even though the manufacture followed all the safety precautions. Courts reason that the cost and the burden of improving the product should be on the manufacturer
Privity
A direct financial relationship between the parties. For example, when a home seller signs a contract for the sale of a house to a buyer, the parties are in privity
Products liability cases can be based on….
negligence, strict liability, breach of warranty
Warrenty
A pledge assurance or guarantee that a fact is true
Proof of a breach of warranty requires no showing of fault and is therefore a strict liability tort
Defenses to products liability actions
Contributory negligence/comparative negligence
Assumption of the risk
Obvious hazard
Defamation
A false attack on the reputation or character of another
What does defamation consist of
A false and defamatory statement concerning the plaintiff
An unprivileged publication to a third party
Fault amounting to at least negligence on the part of the publisher and
legal recognized cause of action for the statement and proof of special harm.
