Damages and Defenses to Negligence

Question 1

Egg-Shell Skull Plaintiff

Answer 1

In all cases, the defendant takes the plaintiff as they find the plaintiff; meaning, the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.

Question 2

Personal Injury Damages

Answer 2

The plaintiff is to be compensated for all their damages (past, present, and prospective), both economic damages (such as medical expenses) and noneconomic damages
(such as pain and suffering).

A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.

Question 3

Property Damages

Answer 3

Reasonable cost of repair or,
if the property is totally or nearly destroyed, its fair market value at the time of the accident.

Emotional distress damages
generally cannot be recovered for negligent harm to property. Under this last stated rule, a person cannot recover for emotional distress if another party negligently injures or kills their pet.

Question 4

Punitive Damages

Answer 4

Punitive damages generally are not available in negligence cases. However, a plaintiff may recover punitive damages if defendant’s conduct is “wanton and willful,” reckless, or
malicious.

Question 5

CONTRIBUTORY NEGLIGENCE

Answer 5

Contributory negligence is negligence on the part of the plaintiff that contributes to the plaintiff’s injuries.

Not a defense to intentional torts

Completely barred the plaintiff’s right to recovery at common law. Almost all jurisdictions now favor a comparative negligence system .

Question 6

ASSUMPTION OF RISK

Answer 6

The plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendant’s act. The plaintiff must have:
* Known of the risk and
* Voluntarily proceeded in the face of the risk

Knowledge may be implied where the risk is one that an average person would clearly appreciate

No defense to intentional torts

Question 7

COMPARATIVE NEGLIGENCE

Answer 7

The plaintiff’s contributory negligence is not a complete bar to recovery

Trier of fact weighs the plaintiff’s negligence and reduces damages accordingly

Question 8

partial comparative negligence

Answer 8

bars the plaintiff’s recovery if their negligence was more serious than the defendant’s negligence (or in some states at least as serious as the defendant’s).

Question 9

pure comparative negligence

Answer 9

States that have adopted pure comparative negligence allow recovery no matter how great plaintiff’s negligence was.