Defenses and Damages

Question 1

Contributory Negligence

Answer 1

Plaintiff is also at fault and this bars their recovery.

Never a defense to an intentional tort. Statutorily not a defense sometimes (child labor, statutes intended to protect minors, etc)

Question 2

Comparative Negligence

Answer 2

Plaintiff is also at fault, but they can recover a percentage of their damages.

Question 3

Last Clear Chance Doctrine

Answer 3

Pre-comparative negligence limitation on contributory defense.

If the defendant had the opportunity to avoid the accident after such an opportunity was no longer available to the plaintiff, the defendant is liable.

Question 4

Pure Comparative Negligence

Answer 4

Plaintiff can recover for 1% of damages when they were 99% at fault.

Question 5

Modified Comparative Negligence

Answer 5

(1) Plaintiff can recover a percentage as long as his fault does not exceed 50%.
(2) Plaintiff can recover a percentage as long as his fault is less than 49%

Question 6

Express Assumption of Risk

Answer 6

P explicitly agrees not to hold D liable for certain
harms, usually in an exculpatory clause.

An exculpatory clause is sufficient to insulate the party from negligence as long as its language is clear in its intent to release defendant from liability

But, express assumption of risk not enforceable if it is void as to public policy.

Question 7

Public Policy Exceptions to Ex. Assumption of Risk

Answer 7

1) Provides an important or necessary service (ex. Health care usually void)
2) Involves D’s intentional or willful/wanton conduct (usually void)
3) Possesses superior bargaining power (ex. Public utility or common carrier)
4) Seeks an adhesive contract (“take it or leave it”)

Question 8

Elements of Implied Assumption of the Risk

Answer 8

1) Subjective appreciation of the danger

2) Free and voluntary confrontation of the danger

Question 9

What are nominal damages?

Answer 9

a very small amount awarded to make the judgment available as a matter of record

Question 10

What are compensatory damages?

Answer 10

Recompense of economic loss and pain and suffering.

Categories: past and future physical and mental pain, past and future medical expenses, loss of earning capacity, permanent disability and disfigurement

Question 11

what are punitive damages?

Answer 11

Damages to punish or make an example of the defendant

Question 12

equitable relief

Answer 12

disgorgement of unjust enrichment

Question 13

collateral source rule

Answer 13

payments or benefits given to the injured party by other sources are not credited against the tortfeasor’s liability

Question 14

remittur and admittur

Answer 14

a request for judge to reduce or increase damages. When granted, the other party has to consent to the change or submit to a new trial.

Question 15

Maximum Recovery Rule

Answer 15

whether the verdict of the jury exceeds the maximum amount the jury could reasonably find. Does the amount “shock the conscience?”