Damages/ contributory/comparative negligence

Question 1

What are the categories of economic loss?

Answer 1

1. medical expenses: past, present, future
2. Concurrent lost earnings (injury as transient aka will go away)
3. Future lost earning- for future disability (injury or permanence)

Question 2

What are the categories of Non-economic loss?

Answer 2

1. Pain and suffering, mental anguish (consciousness required)
2. Loss of function (disability) & appearance (disfigurement)

Question 3

What are the categories of compensatory damages?

Answer 3

Personal injury, property damage

Question 4

What are the types of property damage?

Answer 4

1. Destroyed: entire value
2. Damages: difference in value
3. Loss of use: value of use (rents)

Question 5

Why does the legislature control amounts of recovery?

Answer 5

sometimes damages exceed the cost of one human life. For instance: profession becomes not viable if doctors are exposed to such high levels of liability

Question 6

What is the collateral source rule?

Answer 6

allows people to recover double the damages (insurance etc) benefits received do not go before the jury

Question 7

What is the intermediate ground of punitive damages?

Answer 7

allows juries to award punitive damages to punish the defendant, but limits the amount plaintiff may benefit

Question 8

when are punitive damages generally permitted?

Answer 8

when defendant has committed an intentional tort such as assault, battery, false imprisonment, conversion, trespass, malicious prosecution, or IIED

negligent torts: also may be sufficient to justify punitive damages
- reckless disregard for the rights of others
-willful misconduct

Question 9

Do states award punitive damages against estates for the conduct of a decedent?

Answer 9

the majority do not

Question 10

Does the general rule that compensatory damages rare required for the award of punitive damages apply to cases of the intentional tort of trespass?

Answer 10

no

Question 11

Who has the burden of proof in contributory negligence?

Answer 11

defendant

Question 12

who has the burden of proof in comparative negligence?

Answer 12

defendant

Question 13

What are the two basic forms of comparative negligence?

Answer 13

modified: plaintiffs recover as in pure jurisdictions, but only if the plaintiffs negligence either (1) does not exceed 50% or (2) 51%

pure: Reduced in proportion to the percentage negligence attributed to him.

Question 14

What are the 3 elements of implied assumption of risk?

Answer 14

1. actually aware of the particular risk
2. Plaintiff must appreciate its magnitude
3. Voluntary encountering of the risk

Question 15

Can the failure to submit to surgery that a reasonable person would undergo to mitigate an injury limit plaintiffs damages for both loss of wages and pain and suffering?

Answer 15

yes, a person still has the duty to act reasonably after an injury

Question 16

When is an exculpatory clause unenforceable as against public policy?

Answer 16

1. when party being excused intentionally causes harm
2. if the bargaining power is grossly unequal to put one party at the mercy of another - the agreement will be voided
3. If the transactions involves the public interest