Negligence - DAMAGES Flashcards
Are damages ever presumed in a negligence claim?
No.
For personal injury, what can P be compensated for?
All damages - past, present, and prospective.
Can a P in a negligence case get nominal damages?
No.
Can P recover both economic and non-economic damages?
Yes.
Economic: e.g. medical expenses, lost wages
Non-economic: e.g. pain and suffering
What is the eggshell skull rule?
Foreseeability of the extent of the harm is irrelevant. D takes the P as he is (even if deceptively frail). D will be liable even if his minor breach caused catastrophic injuries.
When can a P recover for emotional distress in a negligence claim?
When P also has physical injury.
How are damages measured when the damage was done to property because of carelessness?
The reasonable cost of repair or the FMV at the time of the accident (if close to destroyed).
When may P recover punitive damages in a negligence suit?
When D’s conduct is wanton and willful, reckless, or malicious.
What are the nonrecoverable items?
Interest from the date of damage in personal injury and attorneys’ fees.
Does P have a duty to mitigate damages?
Yes - P must take reasonable steps to mitigate the extent of the damages (e.g. by seeking medical treatment)
What is the collateral source rule?
MBE: damages are not reduced because P gets benefits from other sources (e.g. insurance, who will get reimbursed by P when she recovers)
NEW YORK: in personal injury, property damage, and wrongful death cases - courts must reduce the damages award based on the benefits P receives from outside sources (like insurance).
