Damages and Defenses to Negligence Flashcards
Damages - generally
Damage is an essential element of negligence. The damage will not be presumed, and nominal damages are not available.
In all cases, the defendant takes the plaintiff as they find the plaintiff, meaning the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. The eggshell skull plaintiff rule. 
Damages - Personal injury
The plaintiff is to be compensated for all their damages, past present and perspective, both economic damages, such as medical expensive and non-economic damages, such as pain and suffering. A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.
Damages - property damage
The measure of damage is the reasonable cost of repair or, if the property is totally or nearly destroyed, it’s fair market value at the time of the accident.
Emotional distressed damages, generally cannot be recovered for negligent harm to property. A person cannot recover for emotional distress, if another party negligently injures or kills their pet. 
Damages - punitive damages
Punitive damages, generally, are not available in negligence cases. However, a plaintiff may recover punitive damages, if the defendants conduct is wanton and willful, reckless, malicious, 
Damages - nonrecoverable items
Non-recoverable items include interest from the date of damage in personal injury actions and attorneys fees
Damages - duty to mitigate
As in all cases, the plaintiff has a duty to take a reasonable steps to mitigate damages. For example, seek appropriate treatment.
Damages - collateral source rule
Damages are not reduced just because the plaintiff received benefits from another source. For example, health insurance.
Contributory negligence - generally
Contributory negligence is negligence on the part of the plaintiff that contributes to the plaintiff injuries. The standard of care for contributory negligence is the same as for ordinary negligence. Hence, a rescuer will not be deemed contributory negligent without taking into account the emergency situation. Also, the plaintiff violation of an applicable statute may be used to establish their contributory negligence.
Contributory negligence - as a defense to defendant’s violation of statute
Contribute to our negligence is a defense to negligence proved by the defendants violation of an applicable statute, and unless the statute was designed to protect this class of plaintiff from their in capacity and lack of judgment.
Contributory negligence -no defenses to intentional torts
Contributory negligence is not a defense to wanton and willfulness conduct or intentional tortious conduct
Contributory negligence - effect of contributory negligence
Contributory negligence completely borrowed the plaintiff right to recover at Common law. However, almost all jurisdictions now favor comparative negligence system.
Contributory negligence - last clear chance - generally
Last Claire chance permits a plaintiff to recover despite their contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. Last clear chances essentially the plaintiff rebuttal to the defense of contributory negligence.
Contributory negligence - last clear chance - helpless peril
In many states, if the plaintiff is in helpless payroll, the defendant will be liable if they knew or should’ve known of the plaintiff predicament.
Contributory negligence - last clear chance - inattentive peril
In inattentive peril situations, that is where the plaintiff could have extricated themselves if attentive, the defendant must actually have known of the plaintiff’s predicament. 
Contributory negligence - last clear chance - prior negligence cases
For the last clear chance doctrine to apply, the defendant must’ve been able, but failed, to avoid harming the plaintiff at the time of the accident. If the defendants only negligence occurred earlier, the doctrine will not apply. 
Contributory negligence - imputed contributory negligence
As a general rule, the contributory negligence of a third-party will be imputed to a plaintiff, and by the plaintiff claim, only when the relationship between the third-party and the plaintiff is such a court confine the plaintiff vicariously liable for the third parties negligence.
Negligence is imputed in employer, employee, partner and joint venture relationships. Negligence is not imputed between spouses, parent and child, and automobile, owner and driver. 
Assumption of risk - generally
The plaintive may be denied recovery if they assume the risk of any damage caused by the defendants act. The plaintiff must have: known of the risk and voluntarily proceeded in the face of the risk.
Assumption of risk - implied assumption of risk
Knowledge may be implied where the risk is one that an average person would clearly appreciate. The plaintiff may not be sad to assume 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.also Common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.
Assumption of risk - express assumption of risk
The risk may be assumed by an express agreement.
Assumption of risk - no defense to intentional torts
Assumption of risk is not a defense to intentional towards, but it is a defense to wanton and willfulconduct. 
Comparative negligence - generally
In comparative negligence states, the plaintiff contributory negligence is not a complete bar recovery. Rather, the trier of fact, weighs the plaintiff, negligence and reduces damage accordingly. There are no rules, governing the assignment default, the numbers are left to the discretion of the jury. Majority of states have an adopted partial, comparative negligence, which still bars the point of recovery if their negligence was more serious than the defendants negligence, or some states at least as serious as the defendants.
If more than one defendant has contributed to the plaintiff injury, the plaintiff negligence will be compared with a total negligence of all the defendants combined.
States that have adopted pure comparative negligence allow recovering a matter how great plaintiff negligence was. Assume that pure comparative negligence applies unless the question states otherwise. 
Comparative negligence - last clear chance
Last clear chance is not used and comparative negligence jurisdictions.
Comparative negligence - assumption of risk
Express assumption of risk is a complete defense. Imply, assumption of risk is analyzed as either:
A limitation on the duty, oh to the plaintiff. Meaning that defendant does not owe duty to protect the plaintiff against known risks, such as being hit by a foul ball at a baseball game.
Or
Contributory negligence. Meaning the plaintiff, unreasonably encountered and known risk, thereby reducing or barring their damages under the states comparative negligence rules. 
Comparative negligence - wanton and willful conduct
The plaintiff negligence will be taken into account and most states, even though the defendants conduct was wanton and willful or reckless. However, plaintiff negligence is still no defense to intentional tortious conduct by the defendant.
