Damages and Defenses to Negligence

Question 1

are damages presumed in negligence cases?

Answer 1

no! damages are an essential element of negligence - and will thus not be presumed

Question 2

what type of personal injury damages can a P be compensated for?

Answer 2

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

Question 3

what types of damages can a Plaintiff recover?

Answer 3

1) personal injury
2) property damage

Question 3

are nominal damages available for negligence cases?

Answer 3

nominal damages are NOT available in negligence cases

Question 4

2) property damage compensation

Answer 4

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

Question 5

can emotional distress damage be recovered for negligent harm to property?

Answer 5

Generally no!

also keep in mind that a person cannot recover for emotional distress if another party negligently injures or kills their pet

Question 6

are punitive damages allowed for negligence cases?

Answer 6

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

Question 7

what are the types of ‘nonrecoverable’ items?

Answer 7

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

Question 8

what duty does the Plaintiff have?

Answer 8

the Plaintiff has a duty to take reasonable steps to MITIGATE DAMAGES

i.e. - seek appropriate treatment

Question 9

what is ‘contributory negligence’?

Answer 9

contributory negligence is negligence on the part of the PLAINTIFF - that CONTRIBUTES to the P’s injuries.

Question 10

what is the standard of care for ‘contributory’ negligence?

Answer 10

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.

Question 11

what could be used to establish a Plaintiff’s contributory negligence?

Answer 11

the Plaintiffs violation of an applicable statute may be used to establish their contributory negligence

Question 12

when is ‘contributory’ negligence utilized and by whom?

Answer 12

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

Question 13

when is ‘contributory negligence’ not applicable as a defense?

Answer 13

contribute negligence is NOT a defense to wanton and willfull misconduct OR intentional tortious conduct

Question 14

what effect does establishing contributory negligence have?

Answer 14

contributory negligence completely bars the plaintiff’s right to recovery at COMMON LAW.

However - almost all jurisdictions now favor a COMPARATIVE NEGLIGENCE SYSTEM

Question 15

what is the ‘last clear’ chance rule?

Answer 15

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

Question 16

what are the different types of analysis under ‘last clear chance’?

Answer 16

a) helpless peril
b) inattentive peril
c) prior negligence cases

Question 17

last clear chance - a) helpless peril

Answer 17

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

Question 18

last clear chance - b) inattentive peril

Answer 18

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

Question 19

last clear chance -c) prior negligence cases

Answer 19

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

Question 20

what is ‘IMPUTED contributory negligence’?

Answer 20

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

Question 21

to what type of relationships does imputed contributory negligence apply to and to which does it not apply to?

Answer 21

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

Question 22

when is the P denied recovery? ASSUMPTION OF RISK

Answer 22

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

Question 23

what is ‘implied assumption of risk’?

Answer 23

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

Question 24

who may not limit their liability by disclaimer?

Answer 24

common carriers and public utilities may not limit their liability by disclaimer

Question 25

will members of a class protected by statute be deemed to have assumed a risk?

Answer 25

No!! members of a class protected by statute will not be deemed to have assumed any risk

Question 26

what is an ‘express’ assumption of risk

Answer 26

the risk may be assumed by an EXPRESS AGREEMENT

Question 27

VA DISTINCTION –> traditional contributory negligence

Answer 27

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

Question 28

when will ‘assumption’ of risk not be a defense?

Answer 28

assumption of risk is NOT a defense to iNTENTIONAL torts - but it is a defense to wanton and willful misconduct

Question 28

what is ‘partial comparative negligence’

Answer 28

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.

Question 28

what is ‘COMPARATIVE’ NEGLIGENCE?

Answer 28

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)

Question 29

what is ‘pure comparative negligence’?

Answer 29

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

Question 30

what is the effect of the last clear chance devices on other doctrines?

Answer 30

a) last clear chance - not used in COMPARATIVE NEGLIGENCE JURISDICTIONS

Question 31

what is the effect of the assumption of risk devices on other doctrines?

Answer 31

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)

Question 32

what is the effect of ‘wanton and willful conduct’ on other doctrines?

Answer 32

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

Question 33

what are the types of defenses against negligence?

Answer 33

a) contributory negligence
b) implied assumption of risk
c) pure comparative negligence
d) partial comparative negligence