Damages and Defenses to Negligence

Question 1

what is the egg shell skull doctrine?

Answer 1

once plaintiff establishes all other elements, plaintiff gets all damages suffered – even if surprisingly great in scope (defendant takes the plaintiff as they find the plaintiff)
**NOTE = this applies to ALL torts (not just negligence)

Question 2

what personal injury damages is a plaintiff entitled to?

Answer 2

plaintiff is to be compensated for all their damages (includes both economic and non economic damages and damages for any resulting emotional distress)

Question 3

what measure of damages is a plaintiff entitled to for property damage?

Answer 3

either the reasonable cost of repair, or (if totally/nearly destroyed) property’s fair market value at the time of the incident
**NOTE = emotional distress damages NOT recoverable for negligent harm to property

Question 4

generally, can a plaintiff recover punitive damages in negligence cases?

Answer 4

NO

Question 5

when can a plaintiff recover punitive damage in negligence cases?

Answer 5

only if defendant’s conduct was “wanton and willful”, reckless, or malicious (more than average negligence)

Question 6

what 2 things can a plaintiff NOT recover in negligence cases?

Answer 6

1) interest from the date of damage in a personal injury action (ie– pre-judgment interest)
2) attorney’s fees

Question 7

true or false: a plaintiff has a duty to take reasonable steps to mitigate their damages.

Answer 7

TRUE (in ALL cases)

Question 8

true or false: a plaintiff’s recovery will NOT be reduced simply because they received benefits from other sources (ie – health insurance).

Answer 8

TRUE (collateral source rule)

Question 9

what is contributory negligence?

Answer 9

negligence on the part of the plaintiff that contributes to the plaintiff’s injuries (based on RPP standard)

Question 10

true or false: a plaintiff’s violation of a statute may be used to establish contributory negligence.

Answer 10

TRUE
**EX = jay walking

Question 11

true or false: generally, a plaintiff’s contributory negligence is a defense to negligence proved by a defendant’s violation of a statutory standard of care.

Answer 11

TRUE

Question 12

when is contributory negligence NOT a defense to a defendant’s violation of a statute?

Answer 12

not a defense if the statute that D violated was designed to protect this class of plaintiffs from their incapacity and lack of judgment
**EX = kid injured after running into street in school zone and getting hit by speeding car

Question 13

true or false: contributory negligence is a defense to intentional torts and wanton/reckless conduct.

Answer 13

FALSE (it is not a defense to EITHER)

Question 14

true or false: at common law, contributory negligence completely barred a plaintiff’s recovery.

Answer 14

TRUE
**NOTE = most states use a comparative negligence scheme

Question 15

what is the “last clear chance” rule?

Answer 15

rule that permits plaintiffs to recover despite their contributory negligence if the person with the last clear chance to avoid an accident who fails to do so is the defendant, not the plaintiff

Question 16

when will the contributory negligence of a third party be imputed to the plaintiff?

Answer 16

when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party’s negligence (ie – employee/boss, partners, joint venturers)

Question 17

in what kinds of relationships is a third party’s contributory negligence NOT imputed to the plaintiff?

Answer 17

between spouses
parent and child
car owner and driver

Question 18

what is the effect of assuming the risk of any damage caused by the defendant on the plaintiff’s recovery?

Answer 18

they will be denied recovery

Question 19

what 2 things must the plaintiff have done to “assume the risk”?

Answer 19

plaintiff must have
1) known of the risk, and
2) voluntarily proceeded in the face of the risk

Question 20

when will a plaintiff’s “knowledge” of a risk be implied?

Answer 20

when the risk is one that an average person would clearly appreciate

Question 21

true or false: a plaintiff will NOT be held as assuming the risk when there was no available alternative to proceeding in the face of the risk

Answer 21

TRUE
**NOTE = applies in situations involving fraud, force, or emergency

Question 22

true or false: members of a class protected by statute will NOT be deemed as assuming any risk.

Answer 22

TRUE

Question 23

true or false: assumption of risk is NOT a defense to intentional torts.

Answer 23

TRUE
**NOTE = it IS a defense to wanton/willful misconduct

Question 24

what is comparative negligence?

Answer 24

scheme in which plaintiff’s recovery is not barred if they’re contributorily negligent; INSTEAD the trier of fact weighs the plaintiff’s negligence and reduces their damages accordingly (usually by assigning a percentage of fault)

Question 25

what is a partial comparative negligence scheme?

Answer 25

scheme adopted by some states that bars the plaintiff’s recovery if their negligence is more serious than the defendant’s negligence

Question 26

how is a plaintiff’s negligence evaluated under a partial comparative negligence scheme with multiple defendants involved?

Answer 26

if more than one defendant is negligent/caused plaintiff’s injury, the plaintiff’s negligence will be compared to the TOTAL negligence of all the defendants combined (will only bar recovery if plaintiff more negligent than all defendants combined)

Question 27

when is recovery allowed in a pure comparative negligence scheme?

Answer 27

allowed regardless of how great the plaintiff’s negligence was (could be 99%, still entitled to recover 1%)

Question 28

true or false: the last clear chance rule applies in comparative negligence states.

Answer 28

FALSE (only applies in common law, contributory negligence states)

Question 29

true or false: express assumption of risk is a complete defense in comparative negligence jurisdictions.

Answer 29

TRUE

Question 30

in what two ways can an implied assumption of risk be analyzed in comparative negligence jurisdictions?

Answer 30

analyzed as either
1) a limitation on the duty owed to the plaintiff (defendant not liable to plaintiff for risks they’ve assumed), or
2) contributory negligence (reducing or barring plaintiff’s recovery depending on the jurisdiction’s rules)