Damages and Defenses to Negligence

Question 1

Damages Generally (Negligence)

Answer 1

Damages is an essential element of negligence - nominal damages are not available

Question 2

Personal Injury Damages (Negligence)

Answer 2

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

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

Question 3

Property Damages (Negligence)

Answer 3

The measure of damages is the 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 negligently harm to property. This means a person cannot recover emotional distress if another party negligently injures or kills their pet.

Question 4

Punitive Damages & GA Distinction

Answer 4

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

GA - GA limits recovery of punitive damages to a maximum of $250,000 in all cases except product liability actions and cases in which the defendant acted with the specific intent to cause harm or while under the influence of alcohol or drugs.

Question 5

Contributory Negligence

Answer 5

Contributory negligence is negligence on the part of the plaintiff which contributes to the plaintiff’s injury

Defense to Violation of Statute - contributory negligence is a defense to negligence per se unless the statute was designed to protect this class of plaintiff’s from their incapacity and lack of judgment

Intentional Torts - contributory negligence is no defense to intentional torts

Effect of Contributory Negligence - at common law, it was a complete bar to the plaintiff’s recovery. However, almost all jurisdictions have have a comparative negligence system.

Question 6

GA’s Contributory Negligence Distinction

Answer 6

In contrast to the age requirement in a negligence action, this does not apply for the finding of contributory negligence

Most cases have held that a child under 6 cannot be found to be contributorily negligent. Whether a child under the age of 13 can be found contributory negligent depends on that child’s mental and physical capabilities.

Question 7

Last Clear Chance Doctrine

Answer 7

Last clear chance permits a plaintiff to recover despite their contributory negligence. The person with the last clear chance to avoid the accident and who fails to do so is liable for negligence

NOTE - Last clear chance is not used in comparative negligence jurisdictions

HOWEVER - GA still recognizes last clear chance despite being a comparative negligence jurisdiction

Question 8

Application of Last Clear Chance Doctrine

Answer 8

Helpless Peril - in many states, if the plaintiff is in helpless peril, the defendant will be liable if they knew or should have known of the plaintiff’s predicament

Inattentive Peril - there the plaintiff could have extricated themselves if attentive, the defendant must actually have known of the plaintiff’s predicament

Prior Negligence Cases - for the last clear chance doctrine to apply, the defendant must have been able to, but failed, avoid harming the plaintiff at the time of the accident.

Question 9

GA Last Clear Chance

Answer 9

GA recognizes last clear chance

In helpless peril situations, GA requires that the defendant have actual knowledge of the plaintiff’s peril. It is not sufficient that the defendant should have known of the situation.

Question 10

Assumption of Risk

Answer 10

The plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendant’s acts. The plaintiff must have :

1) known of the risks; and
2) voluntarily proceeded in the face of the risks

The assumption may be implied where the risk is one that an average person would clearly appreciate.

NOTE - assumption of risk is not a defense to intentional tort, but it is a defense to wanton and willful misconduct

Question 11

Express v. Implied Assumption of Risk

Answer 11

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 plaintiff; or
2) contributory negligence

Question 12

GA Implied Assumption of Risk

Answer 12

Implied assumption of risk is a separate defense that will totally exculpate the defendant

Also, a plaintiff will be completely barred from recovery when the plaintiff, through the exercise of reasonable care, could have avoided the consequences of the defendant’s prior negligence.

Implied assumption of risk does not apply to rescuers that are volunteers or bystanders, unless the rescuers actions are so imprudent and beyond reasonable appropriate means that they must be classified as reckless or wanton.

Question 13

Comparative Negligence

Answer 13

In comparative negligence states, the plaintiff’s contributory negligence is not a complete bar to recovery. Rather, the plaintiff’s recovery is reduced in proportion to their negligence.

Question 14

Partial Comparative Negligence

Answer 14

States that recognize partial comparative negligence will bar a plaintiff’s recovery if their negligence was more serious than the defendant’s negligence or in some states at least as serious as the defendants.

If there are more than one defendant, the plaintiff’s negligence is compared with the total negligence.

GA IS PARTIAL COMPARATIVE NEGLIGENCE

Question 15

GA Partial Comparative Negligence

Answer 15

A plaintiff may not recover if they are 50% or more responsible for the injury or damages claimed

Question 16

Pure Comparative Negligence

Answer 16

States that recognize pure comparative negligence allow the plaintiff to recover no mater how great their negligence was.

ON MBE APPLY PURE COMPARATIVE NEGLIGENCE UNLESS IT STATES OTHERWISE