Negligence Damages Flashcards
Punitive damages -FL
P must prove by clear and convincing E that D acted intentionally or with willful, wanton or gross misconduct.
Capped at either $500,000 or three times compensation award- whichever is greater.
But no cap if D intended the harm.
Damages in general
P must prove actual damages. Punitive damages not allowed.
Contributory negligence
Conduct by P that falls below the reasonable person standard for protecting oneself and which contributed to his own injury.
Negligent P barred from recovery if 1% responsible for injury.
* minority rule. Only use if contributory negligence JD.
Last clear chance rule
For contributory negligence JD, P can still recover if can show that D had last chance to avoid injury and failed to do so.
Imputed contributory negligence
Actions of TP imputed to bar Ps recovery under contributory negligence when:
- P would be vicariously liable for TPs negligence,
- Ps claim against D is completely derived from TP who was contributorily negligent.
Comparative negligence
Determine and apportion damages based on relative fault if each party.
Reduce Ps recovery by amount he is at fault.
Pure comparative negligence
Can recover from D even if more at fault that D. Ie 75% Ps fault, P recovers 25% from D.
FL rule
MBE rule- on bar if not state otherwise.
Modified comparative negligence
P can only re over if he contributed less than 50% to his own damages.
Aggregate comparative negligence
When ds are NOT jointly and severally liable, All Ds percentage of fault is combined. If Ps percent is still high, p cannot recover.
Individual equality system of comparative negligence
P does not recover if get percent if fault exceeds that of any one D.
FL comparative negligence
Jury can consider failure to use seat belt as evidence of fault when determining damages. P failed to mitigate.
P can’t recover if was intoxicated and her actions led to more than 50% of get damages.
Assumption of risk
P assume if expressly or impliedly consents.
