Negligence - Damages

Question 1

What must a plaintiff prove in order to receive damages ?

Answer 1

P must prove actual harm

• Personal injury or property damage
• Nominal damages aren’t recoverable

Question 2

Actual Damages & Emotional Distress Damages

Answer 2

If plaintiff is a vic. of a tort that causes physical injury he can add on emotional distress as an element of damages

Question 3

Actual Damages & Economic Loss

Answer 3

If P suffers only economic loss w/out related personal injury or prop. damage

• can’t recover econ. loss through negligence action
• BUT once he proves non-economic injury he can recover both econ. and non-econ.

Question 4

Actual Damages & Attorney’s fees

Answer 4

Not recoverable in a negligene action

Question 5

What type of damages are awarded in negligence actions?

Answer 5

Compensatory Damages

• Designed to return P to his pre-injury position

Question 6

In order to recover compensatory damages in a negligence claim, the damages must be what?

Answer 6

1. Reasonably foreseeable
2. Reasonably certain AND
3. Not avoidable

Question 7

What is the collateral source rule?

Answer 7

Traditional Rule: payments made or evidence of payments made to P from outside sources aren’t credited against the liab. of any tortfeasor

Modern Trend: Majority of states passed statutes that eliminate the rule entirely or modify it

• Payments made to P by D’s insurer are not considered payments from a collateral source & such payments are credited against the D’s liability

Question 8

When can punitive damages be awarded for negligent conduct ?

Answer 8

Never for negligent conduct. D must be more culpable than negligent

1. D must be least reckless, thereby consciously disregarding a high prob. of harm OR
2. Malicious or willfuly cause harm

Question 9

When is the wealth of the Defendant relevant?

Answer 9

When giving punitive damages in order to punish the defendant

Question 10

What is the relationship b/w punitive and compensatory damages ?

Answer 10

Courts suggest there should be some relationship

• Punitive damages in excess of 10X compensatory damages are suspect

Question 11

Mitigation of Damages

Answer 11

P must take reas. steps to mitigate damages

• This duty is a limitation on the plaintiff’s recovery due to failure to avoid harm that could have been avoided by use of reas. effort after tort was committed

Question 12

What are the typical categories of damages ecoverable in a personal injury action?

Answer 12

1. Medical and rehabilitative expenses (past and future)
2. Past and future pain and suffering (emotional distress) AND
3. Lost income and any reduction in future earning capacity

Question 13

When can a plaintiff recover for real or personal property damage?

Answer 13

If injured or destroyed by D’s tort

• P can recover the difference b/w the FMV of the prop. immed. b/f injury and immed. after the injury
• If pers. prop. most courts also allow the cost of repairs as an alt. measure of damages (so long as cost doesn’t exceed value)

Question 14

What are the types of injuries that can entitle a plaintiff to tort damages ?

Answer 14

1. Personal Injuries
2. Property Damages
3. Emotional Distress
4. Bystander Actions

Question 15

If a plaintiff fails to mitigate their damages, what are they entitled to ?

Answer 15

Whatever damages they would have incurred had they properly mitigated their damages