Damages & Defenses to Negligence Flashcards
1
Q
Damages
A
- 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
2
Q
Personal Injury
A
- 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.
3
Q
Property Damage
A
- 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.
4
Q
Punitive Damages
A
- Punitive damages not available in negligence cases.
- However, P may recover punitive damages if D’s conduct is “wanton & willful,” reckless, or malicious.
5
Q
Nonrecoverable Damages
A
- Nonrecoverable items include:
(1) interest from date of damage in personal injury action (“pre-judgment interest”), and
(2) attorneys’ fees.
6
Q
Duty to Mitigate
A
- P has a duty to take reasonable steps to mitigate damages (ex. seek appropriate treatment).
7
Q
Collateral Source Rule
A
- Damages are not reduced just b/c P received benefits from other sources (ex. health insurance).
8
Q
Contributory Negligence
A
- 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
9
Q
Contributory Negligence as Defense to D’s Violation of Statute
A
- 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)
10
Q
Contributory Negligence as Defense to Intentional Torts
A
- Not a defense to wanton & willful misconduct/ intentional tortious conduct.
11
Q
Effect of Contributory Negligence
A
-CL: Completely barred P’s right to recovery
- However, almost all jurisdictions now favor a comparative negligence system
12
Q
Last Clear Chance - An Exception to Contributory Negligence
A
- 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.)
13
Q
Helpless Peril
A
- In many states, if P is in “helpless peril,” D will be liable if they knew/should have known of P’s predicament.
14
Q
Inattentive Peril
A
- In “inattentive peril” situations (P could have extricated themselves if attentive), D must actually have known of P’s predicament
15
Q
Prior Negligence Cases
A
- 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.
16
Q
Imputed Contributory Negligence
A
- 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.
17
Q
Assumption of Risk
A
- 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
18
Q
Implied Assumption of Risk
A
- 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.
19
Q
Express Assumption of Risk
A
- Risk may be assumed by express agreement.
20
Q
AOR: No Defense to Intentional Torts
A
- Not a defense to intentional torts, but it is to wanton & willful misconduct.
21
Q
Comparative Negligence
A
- 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.
22
Q
Comparative Negligence: LCC
A
- Last clear chance is not used in comparative negligence jurisdictions.
23
Q
Comparative Negligence: AOR
A
- 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).
24
Q
Comparative Negligence: WWC
A
- 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
