Damages & Defenses to Negligence

Question 1

Damages

Answer 1

• Damage will not be presumed (& nominal damages are not available).
• In all cases, D takes P as they find P (D is liable for all damages, including aggravation of an existing condition, even if extent/severity of damages was unforeseeable.
• “Eggshell-skull” P rule

Question 2

Personal Injury

Answer 2

• P is to be compensated for all damages (past, present, & prospective), both economic damages (ex. medical expenses) & noneconomic damages (ex. pain & suffering).
• P suffering physical injury may recover damages for emotional distress.

Question 3

Property Damage

Answer 3

• Measure: reasonable cost of repair or, if property is totally/nearly destroyed, its FMV at time of accident.
• Emotional distress damages cannot be recovered for negligent harm to property.
• Person cannot recover for emotional distress if another party negligently injures/kills their pet.

Question 4

Punitive Damages

Answer 4

• Punitive damages not available in negligence cases.
• However, P may recover punitive damages if D’s conduct is “wanton & willful,” reckless, or malicious.

Question 5

Nonrecoverable Damages

Answer 5

• Nonrecoverable items include:
  (1) interest from date of damage in personal injury action (“pre-judgment interest”), and
  (2) attorneys’ fees.

Question 6

Duty to Mitigate

Answer 6

• P has a duty to take reasonable steps to mitigate damages (ex. seek appropriate treatment).

Question 7

Collateral Source Rule

Answer 7

• Damages are not reduced just b/c P received benefits from other sources (ex. health insurance).

Question 8

Contributory Negligence

Answer 8

• Contributory negligence is negligence on part of P that contributes to P’s injuries.
• SOC: same as ordinary negligence.
• Hence, rescuer will not be deemed contributorily negligent w/o taking into account emergency situation.
• P’s violation of an applicable statute may be used to establish their contributory negligence

Question 9

Contributory Negligence as Defense to D’s Violation of Statute

Answer 9

• Contributory negligence is a defense to negligence proved by D’s violation of an applicable statute unless statute was designed to protect this class of Ds from their incapacity & lack of judgment (ex. child injured after darting into street in school zone & getting hit by D’s speeding car)

Question 10

Contributory Negligence as Defense to Intentional Torts

Answer 10

• Not a defense to wanton & willful misconduct/ intentional tortious conduct.

Question 11

Effect of Contributory Negligence

Answer 11

-CL: Completely barred P’s right to recovery
- However, almost all jurisdictions now favor a comparative negligence system

Question 12

Last Clear Chance - An Exception to Contributory Negligence

Answer 12

• Last clear chance permits P to recover despite their contributory negligence.
• Under this rule, person w/ last clear chance to avoid an accident who fails to do so is liable for negligence. (Last clear chance is P’s rebuttal to defense of contributory negligence.)

Question 13

Helpless Peril

Answer 13

• In many states, if P is in “helpless peril,” D will be liable if they knew/should have known of P’s predicament.

Question 14

Inattentive Peril

Answer 14

• In “inattentive peril” situations (P could have extricated themselves if attentive), D must actually have known of P’s predicament

Question 15

Prior Negligence Cases

Answer 15

• For last clear chance: D must have been able, but failed, to avoid harming P at time of accident.
• If D’s only negligence occurred earlier, doctrine will not apply.

Question 16

Imputed Contributory Negligence

Answer 16

• Contributory negligence of 3rd party will be imputed to P (& bar P’s claim) only when relationship between 3rd party & P is such that ct could find P vicariously liable for 3rd party’s negligence.
• Negligence is imputed in employer-employee, partner, & joint venturer relationships.
• Negligence is not imputed between spouses, parent & child, or automobile owner & driver.

Question 17

Assumption of Risk

Answer 17

• P may be denied recovery if they assumed risk of any damage caused by D
• P must have:
  (1) Known of risk and
  (2) Voluntarily proceeded in face of risk

Question 18

Implied Assumption of Risk

Answer 18

• Knowledge may be implied when risk is one an average person would clearly appreciate.
• P may not be said to have assumed risk when there is no available alternative to proceeding in face of risk or in situations involving fraud, force, or emergency.
• Common carriers & public utilities may not limit their liability by disclaimer, & members of a class protected by statute will not be deemed to have assumed any risk.

Question 19

Express Assumption of Risk

Answer 19

• Risk may be assumed by express agreement.

Question 20

AOR: No Defense to Intentional Torts

Answer 20

• Not a defense to intentional torts, but it is to wanton & willful misconduct.

Question 21

Comparative Negligence

Answer 21

• P’s contributory negligence is not a complete bar to recovery.
• Trier of fact weighs P’s negligence & reduces damages accordingly (ex. if P is 10% at fault, their damages are reduced by 10%).
• No rules for fault assignment: left to jury discretion.
• Partial comparative negligence: bars P’s recovery if their negligence was more serious than D’s (some states: at least as serious as D’s).
• If more than one D contributed to P’s injury, P’s negligence will be compared w/ total negligence of all Ds combined.
• Pure comparative negligence: allows recovery no matter how great P’s negligence
• Tip: On MBE, assume pure comparative negligence applies unless question states otherwise.

Question 22

Comparative Negligence: LCC

Answer 22

• Last clear chance is not used in comparative negligence jurisdictions.

Question 23

Comparative Negligence: AOR

Answer 23

• Express AOR: complete defense.
• Implied AOR is analyzed as either:
  (1) limitation on duty owed to P (D does not owe duty to protect P against known risks, ex. being hit by a foul ball at baseball game); or, more commonly,
  (2) contributory negligence (P unreasonably encountered a known risk, thereby reducing/barring their damages under state’s comparative negligence rules).

Question 24

Comparative Negligence: WWC

Answer 24

• P’s negligence will be taken into account even if D’s conduct was “wanton & willful” or “reckless.”
• P’s negligence is still no defense to intentional torts by D