Negligence: Damages, Special Rules for Liability, Vicarious Liability, Joint and Several Liability Flashcards
True or false: Personal injury damages are based solely on recovery for physical damages
False. Physical and emotional damages
+ medical expenses (past and future)
+ lost income and reduced earning capacity
+ pain and suffering (past and future)
Must a plaintiff mitigate damages
Yes, can be considered a duty. Limitation on recovery.
What is the formula for determining property damages?
P recovers the difference in market value before and after injury
OR
Cost of repair or replacement value
Explain the collateral source rule
Benefits or payments to P from outside sources are not credit against liability for a tortfeasor. Evidence of such payments are not admissible at trial.
Define punitive damages
Punishing and deter future conduct, on top of compensatory damages to make the plaintiff whole
+ Depends on the D’s conduct
+ Statutory and constitutional limitations (single digit ratio of any compensatory damages)
When can a plaintiff recover for NIED?
NIED = emotional injury absent physical injury due to D’s negligent conduct
Within zone of danger of threatened physical impact
That threat caused emotional distress
When can a bystander recover for NIED?
- closely related to person injured (relational)
- present at the scene of injury (geographic)
- personally observe (temporal)
To succeed in a NIED claim, most jurisdictions require…?
Some sort of physical manifestation
True or false: A plaintiff who suffers only economic losses can recover under negligence
False. No recovery for pure economic loss.
Explain the difference between wrongful death and a survival action
Wrongful death: decedent’s spouse or representative recovers for losses the spouse/family suffered as a result of D’s negligence
Survival: decedent’s estate seeking damages on behalf of decedent him/herself
True or false: wrongful life suits are generally prohibited
True. In the states where allowed, limited to special damages attributed to child’s disabiility
True or false: wrongful birth suits are generally prohibited
False. Parents can recover for medical expenses plus pain and suffering.
Respondeat Superior: employer is responsible for the negligence of an employee if it occurred…?
during the scope of employment
What is the difference between employer’s direct negligence and vicarious liability?
Direct negligence: employer’s own bad decisions (hiring, training, practices)
Vicarious liable: employee’s actions are negligent and employer is liable
(can have both)
True or false: employers are not liable for the intentional torts of employees
True, except when conduct is within the scope of employment