Damages and Defenses to Negligence Flashcards
are damages presumed in negligence cases?
no! damages are an essential element of negligence - and will thus not be presumed
what type of personal injury damages can a P be compensated for?
P is to be compensated for ALL their damages (past, present, and prospective); BOTH
1) economic damages (i.e. medical expenses; and
2) non-economic damages (i.e. pain and suffering)
A P suffering physical injury may also recover damages for any resulting emotional distress
what types of damages can a Plaintiff recover?
1) personal injury
2) property damage
are nominal damages available for negligence cases?
nominal damages are NOT available in negligence cases
2) property damage compensation
the measure of damage is
a) the reasonable cost of repair OR
b) if the property is TOTALLY or NEARLY DESTROYED – its FAIR MARKET VALUE
can emotional distress damage be recovered for negligent harm to property?
Generally no!
also keep in mind that a person cannot recover for emotional distress if another party negligently injures or kills their pet
are punitive damages allowed for negligence cases?
punitive damages are generally NOT available in negligence cases
however - a plaintiff may recover punitive damages iF defendants conduct is “wanton and willful”, reckless, or malicious
what are the types of ‘nonrecoverable’ items?
nonrecoverable items include:
(1) interest from the date of damage in a personal injury action (i.e. a pre-judgment interest)
(2) attorney’s fees
what duty does the Plaintiff have?
the Plaintiff has a duty to take reasonable steps to MITIGATE DAMAGES
i.e. - seek appropriate treatment
what is ‘contributory negligence’?
contributory negligence is negligence on the part of the PLAINTIFF - that CONTRIBUTES to the P’s injuries.
what is the standard of care for ‘contributory’ negligence?
the standard of care for contributory negligence is the SAME as for ordinary negligence
i.e. rescuer will NOT be deemed contributorily negligent without taking into account the emergency situation.
what could be used to establish a Plaintiff’s contributory negligence?
the Plaintiffs violation of an applicable statute may be used to establish their contributory negligence
when is ‘contributory’ negligence utilized and by whom?
contributory negligence is a defense to negligence proved by the Defendant’s violation of an applicable statute - UNLESS the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment
when is ‘contributory negligence’ not applicable as a defense?
contribute negligence is NOT a defense to wanton and willfull misconduct OR intentional tortious conduct
what effect does establishing contributory negligence have?
contributory negligence completely bars the plaintiff’s right to recovery at COMMON LAW.
However - almost all jurisdictions now favor a COMPARATIVE NEGLIGENCE SYSTEM
what is the ‘last clear’ chance rule?
it is an exception to contributory negligence - meaning that the last clear chance permits a P to recover DESPITE their contributory negligence
under the rule - the person with the LAST CLEAR CHANCE to avoid an accident who FAILS to do so is liable for negligence
what are the different types of analysis under ‘last clear chance’?
a) helpless peril
b) inattentive peril
c) prior negligence cases
last clear chance - a) helpless peril
in many states - if the P is in “helpless peril” - the Defendant will be liable if they KNEW or SHOULD HAVE KNOWN of the P’s predicament
last clear chance - b) inattentive peril
in “inattentive” peril situations (i.e. where P could have EXTRICATED themselves if attentive) - the D must actually HAVE KNOWN of the P’s predicament
last clear chance -c) prior negligence cases
for the last clear chance doctrine to apply, the defendant must have been able, but failed, to avoid harming the P at the time of the accident
If the defendant’s only negligence occurred earlier - the doctrine will not apply
what is ‘IMPUTED contributory negligence’?
general rule – contributory negligence of a 3rd Party will be imputed to a Plaintiff (and bar P’s claim) ONLY WHEN the relationship between the 3rd Party and the P is such that a court could find that the P VICARIOUSLY LIABLE for the 3rd Party’s negligence
to what type of relationships does imputed contributory negligence apply to and to which does it not apply to?
negligence is imputed in
a) EMPLOYER-EMPLOYEE;
b) PARTNER and JOINT VENTURER relationship
negligence is NOT imputed between spouses, parent and child, and automobile owner and driver
when is the P denied recovery? ASSUMPTION OF RISK
the Plaintiff may be denied recovery IF they assumed the risk of any damage caused by the Defendant’s act
The P must have:
(1) known of the risk; and
(2) voluntarily proceeded in the face of the risk
what is ‘implied assumption of risk’?
knowledge may be implied where the risk is one that an AVERAGE PERSON WOULD CLEARLY APPRECIATE
The P may NOT be said to have assumed the risk where there is NO AVAILABLE ALTERNATIVE to proceeding in the face of the risk OR in situations involving FRAUD, FORCE, or an EMERGENCY
who may not limit their liability by disclaimer?
common carriers and public utilities may not limit their liability by disclaimer
will members of a class protected by statute be deemed to have assumed a risk?
No!! members of a class protected by statute will not be deemed to have assumed any risk
what is an ‘express’ assumption of risk
the risk may be assumed by an EXPRESS AGREEMENT
VA DISTINCTION –> traditional contributory negligence
while VA retains traditional contributory negligence - whereby the P’s contributory negligence is a COMPLETE bar to recovery, VA also recognizes the ‘last clear chance’ doctrine to alleviate the harshness of this rule
in HELPLESS PERIL cases - last clear chance applies when the defendant SHOULD HAVE KNOWN of the P’s peril
in INATTENTIVE PERIL cases - last clear chance applies when the D SAW the Plaintiff and realized, or should have realized, the P’s peril
when will ‘assumption’ of risk not be a defense?
assumption of risk is NOT a defense to iNTENTIONAL torts - but it is a defense to wanton and willful misconduct
what is ‘partial comparative negligence’
some states have adopted this - which still bars the P’s recovery IF their negligence was MORE SERIOUS than the D’s negligence (or in some states - as serious as the D’s)
If more than one defendant has contributed to the P’s injury, the P’s negligence will be compared with the TOTAL NEGLIGENCE of all defendants combined.
what is ‘COMPARATIVE’ NEGLIGENCE?
In comparative negligence states (NOT VA) - the P’s contributory negligence is NOT a complete bar to recover
rather - the trier of fact weighs the P’s negligence AND reduces damages accordingly. (there are no rules governing the assignment of fault - numbers are left to the discretion of the jury)
what is ‘pure comparative negligence’?
states that have adopted pure comparative negligence allow recovery no matter how great plaintiff’s negligence was
i.e. - P is 30% negligent - and D is 70% negligent. Each party suffers $100,000 in damages.
P has a right to recover $70,000 from D, and D has a right to recover $30,000 from P. D’s damages will be offset against P’s damages - and P will have a net recovery of $40,000
what is the effect of the last clear chance devices on other doctrines?
a) last clear chance - not used in COMPARATIVE NEGLIGENCE JURISDICTIONS
what is the effect of the assumption of risk devices on other doctrines?
b) assumption of risk - express assumption of risk is a COMPLETE DEFENSE.
Implied assumption of risk is analyzed as either (1) a LIMITATION on the DUTY owed to the P (meaning the D does not owe a duty to protect the P against known risks such as being hit by a foul ball at a baseball game)
OR more commonly
(2) contributory negligence (meaning P unreasonably encountered a known risk, thereby reducing or barring their damages under the state’s comparative negligence rules)
what is the effect of ‘wanton and willful conduct’ on other doctrines?
the P’s negligence will be taken into account in most states - even though the D’s conduct was “wanton and willful” oR “reckless”
However - the P’s negligence is still no defense to intentional tortious conduct by the D
what are the types of defenses against negligence?
a) contributory negligence
b) implied assumption of risk
c) pure comparative negligence
d) partial comparative negligence
