Damages & Defenses to Negligence Flashcards
When are damages presumed in negligence claims?
Never - damages are essential element, need to prove.
What is the eggshell-skull rule?
D takes P as they are, so they are liable for all damage resulting from conduct even if part of damage was not foreseeable (e.g. P especially weak)
What is included in P’s recovery?
P is entitled to full compensation for all past, present, and future economic and noneconomic damages (e.g. med expenses + pain & suffering).
P may recover for emotional distress as well IF they suffered physical injury.
What damages is P entitled to for property damage?
reasonable cost of repair or (if totally destroyed) FMV at time of the accident
cannot recover emotional distress generally (but ok if pet dead)
When may negligence P get punitives?
Generally not available for negligence, but P can if D conduct was wanton and willful, reckless, or malicious.
What 2 things are nonrecoverable in a negligence action?
- pre-judgment interest (i.e. interest from date of injury to judgment)
- atty’s fees
What is the duty to mitigate?
In ALL cases, P has duty to take reasonable steps to mitigate damages. Failure to do so will offset damages.
What is the collateral source rule?
Damages not offset because P receives recovery from elsewhere (e.g. insurance)
What are D’s 3 possible defenses to reduce damages/avoid liability in negligence cases?
- contributory negligence
- comparative negligence
- assumption of risk
What is contributory negligence? When can it be used as defense? What is the legal effect?
Contributory negligence is when P also acts negligently in a way that contributes to the harm at issue. Standard of care is same for P as for D.
NOT a defense when:
- Can NOT be used in case of statutory negligence IF point of statute is to protect class of ppl from their own incapacity (e.g. child).
- intentional torts
At c/l, completely bars P recovery, but now almost ALL jdx’s favor comparative negligence (reduction in damages)
What is the last clear chance rule?
Under the last clear chance rule, P may recover despite their own contributory negligence if D was the person who had the last clear chance to avoid the accident and failed to do so.
Does NOT apply in comparative negligence jdx’s.
When may the negligence of a third party be imputed onto P for purposes of contributory negligence defense?
Only when the relationship between the third party and P is such that court could find P vicariously liable for third party conduct.
YES, imputed:
- employer-employee
- partnership
- joint ventures
NOT imputed:
- parent-child, spouses, car owner and driver
What is the assumption of risk defense? when does it apply?
P may be denied recover if P assumed the risk of any damage caused by D. P must have
- known of the risk, AND
- knowledge may be implied when it was risk that average person would clearly appreciate - voluntarily proceeded in the face of the risk
- must be voluntary - no fraud, force, emergency, i.e. having no other option
*If re statutory duty, members of protected class do NOT assume risk ever
Does NOT apply to intentional torts
What is comparative negligence? What are the 2 types?
Comparative negligence defense will reduce P’s damages by a degree to be decided by the jury based on how much of P’s negligence contributed to the injury as compared with D’s. It does not serve as a bar to recover like in a contributory negligence jdx. (E.g. P was 10% at fault, reduce $ by 10%). (#’s decided by jury)
The two types are:
(a) pure comparative negligence jdx = allows recover no matter how small a % P contributed
(b) partial comparative negligence jdx = if P’s contribution was AT LEAST as serious OR MORE serious than D’s (jdx split), then P is barred from recovery
EXAM: Assume pure comparative
Last clear chance rule doesn’t apply
How does assumption of risk defense function in a comparative negligence jdx?
Either (1) limits D’s duty wrt P - so certain things D will not be liable for at all if risk was assumed, or (2) contributory negligence - P’s assumption gets factored into damages
