Damages and defenses to negligence

Question 1

What is the egg-shell skull plaintiff rule

Answer 1

D takes P as they are meaning that D is liable for all damages including aggravation of an existing condition even if unforeseeable

Question 2

Egg-shell skull plaintiff rule applies when

Answer 2

When P has established all other element of the claim (duty, breach, causation)

and P can also use ESP rule for other torts outside of negligence like battery, assault etc., just need to establish the elements of those torts first and then use ESP rule

Question 3

list (3;2)

What damages are available for breach of negligence

Answer 3

1. Economic
2. Noneconomic
   
   1. Include emotional distress
3. Damages to property
   
   1. But no recovery for emotional distress

NOTES:

1. If D is liable to P, then D liable for full extent of P’s harm
2. Punitive damages - generally cannot recover in negligence cases
   
   1. Punitive damages are awarded to P to punish D
   2. Can only recover if D’s conduct was “wanton and willful”, “reckless”, or malicious
   3. Can only recover under intentional torts (BAFL² iied)

Question 4

List (3)

What defenses can D use for P’s claim of breach of negligence?

Answer 4

1. Affirmative defense
2. Contributory Negligence
3. Comparative Negligence

Question 5

What are affirmative defenses

Answer 5

D isn’t challenging whether P can meet duty, breach, causation, or damages but rather introducing NEW evidence that if believed by fact-finder either absolve D of liability OR mitigate damages

Question 6

What is comparative negligence

Answer 6

When P fails to use relevant standards of care to protect self against foreseeable risks of harm

Question 7

Damages under contributory negligence

Answer 7

CL barred P’s right to recovery

Question 8

Comparative Negligence

Answer 8

Court will compare the amount of negligence from each side to determine damages

Question 9

Types of comparative negligence

Answer 9

1. Partial comparative negligence
2. Pure comparative negligence

Question 10

Recovery under partial comparative negligence

Answer 10

1. P cant recover if at MORE fault than D (and D can recover)
2. P can recover if at LESS fault than D
   
   1. Recovery is reduced by percentage of fault

Question 11

Recovery under pure comparative negligence

Answer 11

P can recover against D no matter percentage of fault (even if 99% responsible) BUT recovery will be reduced by percentage of fault (so 99% reduction in recovery)

Question 12

Implied assumption of risk

Answer 12

P knew of a risk of injury and voluntarily assumed it

Question 13

list (2)

recovery under implied AOR

Answer 13

1. No duty to protect - D does not owe duty to protect P because P assumed risk
2. Contributory negligence - P unreasonably encountered a known risk, which reduces or bars damages P can get

Question 14

What is the last clear chance doctrine

ADD TABLE

Answer 14

The doctrine considers which party had the last opportunity to avoid the accident that caused the harm.

Therefore, a negligent plaintiff may recover damages if they can show that the defendant had the last clear chance to avoid the accident…but P’s negligence regarding intentional torts is NOT a defense D can use to limit his liability

Question 15

Which defense(s) is negated by last clear chance doctrine?

Answer 15

Contributory negligence

Question 16

List (3)

Which defense apply to wanton or reckless tortious conduct

Answer 16

1. Implied AOR
2. Pure comp neg
3. Partial comp neg

Question 17

The doctrine of mitigation of damages requires

Answer 17

a plaintiff to take reasonable steps to mitigate damages.

In personal injury cases this means seeking appropriate treatment to effect a cure or healing and to prevent aggravation

Question 18

assumption of risk

A worker who missed his ride home because he was working late walked across the street to a tavern to get a drink. He chatted with a patron of the tavern and discovered that he lived only a short distance from the patron. The patron offered to give the worker a ride home. Although he knew the patron was probably too drunk to drive, the worker reluctantly agreed. On the way home, the patron, driving in a dangerous manner, was involved in a collision with another car, whose driver was also driving negligently, and the worker was injured.

If the worker sues the patron to recover for his injuries and the above facts are established at trial, will the worker’s recovery be reduced?

A Yes, because the worker knew that the patron was drunk.

B Yes, because the other driver involved in the collision was also negligent.

C No, because the negligence of the patron and the other driver were the proximate causes of the accident.

D No, as long as the worker joins the other driver in his lawsuit.

Answer 18

A Yes, because the worker knew that the patron was drunk.

The worker impliedly assumed the risk of injury when he voluntarily allowed the patron to drive him home knowing that the patron was drunk. In jurisdictions applying pure comparative negligence, implied assumption of risk is usually treated as a variant of contributory negligence.

If the plaintiff unreasonably assumed the risk of injury, as the facts indicate here, he will be considered contributorily negligent and his damages will be reduced.

(C) is incorrect. While the patron and the other driver were both proximate causes of the accident, the worker’s fault in accepting a ride from an intoxicated driver also contributed to the injuries he suffered, and the jury will reduce his recovery accordingly.