Negligence Damages and Defenses

Question 1

Eggshell Skull Rule

Answer 1

Defendant takes plaintiff as they find him - responsible for all damages, including aggravation of existing conditions even if the extent or severity was unforeseeable.

Question 2

Contributory Negligence

Answer 2

Negligence on the part of the plaintiff that contributes to her injuries.
-not a defense to wanton/willful misconduct or intentional torts
-completely barred recovery at common law

Question 3

Comparative Negligence

Answer 3

Plaintiff’s contributory negligence is not a complete bar, but reduces her damage award based on her percentage of fault.
-partial: bars recovery if plaintiff more than 50% at fault
-pure: plaintiff can recover no matter how much at fault

Question 4

Assumption of Risk

Answer 4

Plaintiff knew of the risk and voluntarily proceeded.
-Express: a complete defense
-Implied: will either eliminate the duty or reduce plaintiff’s recovery

Question 5

Joint and Several Liability

Answer 5

When two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be liable to the plaintiff for the entire damage incurred.
-if it’s a divisible injury, each liable only for the identifiable portion, unless acting in concert

Question 6

Contribution

Answer 6

If a defendant had to pay more than his share under joint and several liability, he may seek contribution from the other tortfeasor.
-majority: based on relative fault
-minority: equal split

Question 7

Indemnification

Answer 7

If a defendant had to pay under joint and several liability and is much less responsible than the other tortfeasor, he may seek indemnification to shift the entire loss to the other.
-applies to vicarious liability or strict liability for the non-manufaturer