Damages and Defenses to Negligence Flashcards
How does a defendant take a P and what is this called?
As he finds him, egg shell skull Plaintiff
What is a plaintiff compensated for in negligence action?
All damages – past present and future.
What types of damages are P’s compensated for and examples?
1) Economic damages (medical expenses)
2) Non economic damages (pain and suffering)
3) Resulting emotional distress from physical injury
Are punitive damages generally available in Negligence?
No.
Are attorneys fees recoverable?
No.
When are punitive damages available?
When D’s conduct was wanton/willful reckless or malicious.
What is the duty to mitigate in Negligence?
P must take reasonable steps to mitigate damages like seek treatment.
What is the collateral source rule?
P’s damages are not reduced just because they receive benefits from another source (health care benefits).
What is contributory negligence?
Negligence on P’s part that contributes to their injuries.
What type of defense is contributory negligence?
To Defendant’s negligence proved by negligence per SE unless victim was in COP statute COR
What is assumption of risk in Negligence?
P knew of risk
Voluntarily proceeded in face of risk.
When will an implied assumption of risk not be applied?
If P had no available alternative to proceeding in face of risk
OR
fraud
force
emergency
Can common carriers/public utilities limit their liability by disclaimer?
No.
What is assumption of risk not a defense to?
Intentional torts, other than wanton/willful misconduct
What is pure comparative negligence?
Trier of fact apportions risk to each party, and P’s damages are reduced accordingly. But recovers something no matter how much he contributed.
