Damages and Defenses to Negligence

Question 1

Damages - Overall

Answer 1

• essential element of negligence
• will not be presumed, + nominal damages NOT available

Question 2

Eggshell-Skull Rule

Answer 2

• def takes pl as they find them
  -> means def takes liability for ALL damages, including aggravation of an existing condition, even if extent or severity of damages was unforeseeable

Question 3

Personal Injury

Answer 3

• pl compensated for all their damages (past, present and prospective)
• includes both economic (ex: medical expenses) and noneconomic damages (ex: pain + suffering)
• pl suffering physical injury may also recover damages for any resulting emotional distress

Question 4

Property Damage

Answer 4

• measure of damage = reasonable cost of repair or (if property nearly or totally destroyed) fair market value at time of accident
• emotional distress damages generally can’t be recovered for negligent harm to property
  -> person can’t recover for emotional distress if another negligently injures or kills their pet

Question 5

Punitive Damages

Answer 5

• generally not available in negligence cases
• however, pl may recover punitive damages if def’s conduct was wanton + willful, reckless, or malicious

Question 6

Nonrecoverable Items

Answer 6

Include:
- interest from the date of damage in personal injury action (pre-judgment interest)
- attorneys’ fees

Question 7

Duty to Mitigate

Answer 7

• pl has duty to take reasonable steps to mitigate damages

Question 8

Collateral Source Rule

Answer 8

• damages not reduced just b/c pl received benefits from other sources (ex: health insurance)

Question 9

Contributory Negligence - Overall

Answer 9

• negligence on part of pl that contributes to pl’s injuries
• standard of care = same as ordinary negligence
• pl’s violation of an applicable statute may be used to establish their contributory negligence

Question 10

Contributory Negligence - As Defense to Def’s Violation of Statute

Answer 10

• works as a defense unless the statute was designed to protect the particular class of pls from their incapacity + lack of judgment

Question 11

Contributory Negligence -Intentional Torts

Answer 11

• NOT a defense to wanton + willful misconduct or intentional tortious conduct

Question 12

Effect of Contributory Negligence

Answer 12

• complete barred pl’s right to recovery at common law
• BUT almost all jurisdictions now favor comparative negligence system

Question 13

Last Clear Chance

Answer 13

• permits pl to recover despite contributory negligence
• rule says person w/ the last clear chance to avoid an accident who fails to do so is liable for negligence
• essentially pl’s rebuttal to defense of contributory negligence

Question 14

Last Clear Chance - Helpless Peril

Answer 14

• in many states, if pl is in “helpless peril”, def will be liable if they knew or should’ve known of pl’s predicament

Question 15

Last Clear Chance - Inattentive Peril

Answer 15

• where pl could’ve extricated self if attentive
• def must actually have known of pl’s predicament

Question 16

Prior Negligence Cases

Answer 16

• for last clear chance doctrine to apply, def must’ve been able but failed to avoid harming pl at time of accident
• if def’s only negligence occurred earlier, the doctrine doesn’t apply

Question 17

Imputed Contributory Negligence

Answer 17

• generally, contributory negligence of 3rd party imputed to pl only when relationship between 3rd party + pl is such that court could find pl vicariously liable for 3rd party’s negligence
• negligence IS imputed in employer-employee, partner, and joint venturer relationships
• negligence is NOT imputed between spouses, parent + child, + automobile owner + driver

Question 18

Assumption of Risk

Answer 18

• pl may be denied recovery if they assumed the risk of any damage caused by def’s act
• pl must have known of the risk AND voluntarily proceeded in the face of the risk

Question 19

Implied Assumption of Risk

Answer 19

• knowledge may be implied where the risk is one that an average person would clearly appreciate
• pl may NOT be said to have assumed he risk where no available alternative to proceeding in face of risk or in situations involving fraud, force, or emergency
• common carriers + public utilities may not limit their liability by disclaimer
• members of a class protected by statute will not be deemed to have assumed any risk

Question 20

Express Assumption of Risk

Answer 20

• risk may be assumed by express agreement

Question 21

Assumption of Risk - Intentional Torts

Answer 21

• NOT a defense to intentional torts, but it is a defense to wanton + willful misconduct

Question 22

Comparative Negligence

Answer 22

• in comparative negligence states, pl’s contributory negligence is NOT a complete bar to recovery
• trier of fact weighs pl’s negligence + reduces damages accordingly
• majority of states have partial comparative negligence -> bars pl recovery if pl’s negligence was more serious than def
• if more than one def has contributed to pl’s injury, pl’s negligence compared w/ total negligence of all defs combined

Question 23

Pure Comparative Negligence

Answer 23

• assume on exam unless stated otherwise
• allow recovery no matter how great pl’s negligence was

Question 24

Last Clear Chance + Comparative Negligence

Answer 24

• doctrine not used in comparative negligence jurisdictions

Question 25

Assumption of Risk + Comparative Negligence

Answer 25

• express assumption of risk = complete defense

Implied assumption of risk analyzed as either:
1) limitation on duty owed to pl OR
2) contributory negligence (pl unreasonably encountered known risk -> reduces or bars damages under comparative negligence rules)

Question 26

Comparative Negligence - Wanton + Willful Conduct

Answer 26

• pl’s negligence will be taken into account in most states even though def’s conduct was “wanton and willful” or “reckless”
• HOWEVER pl’s negligence is still no defense to intentional tortious conduct by def