Negligence: Damages, Special Rules for Liability, Vicarious Liability, Joint and Several Liability

Question 1

True or false: Personal injury damages are based solely on recovery for physical damages

Answer 1

False. Physical and emotional damages

+ medical expenses (past and future)
+ lost income and reduced earning capacity
+ pain and suffering (past and future)

Question 2

Must a plaintiff mitigate damages

Answer 2

Yes, can be considered a duty. Limitation on recovery.

Question 3

What is the formula for determining property damages?

Answer 3

P recovers the difference in market value before and after injury

OR

Cost of repair or replacement value

Question 4

Explain the collateral source rule

Answer 4

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.

Question 5

Define punitive damages

Answer 5

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)

Question 6

When can a plaintiff recover for NIED?

Answer 6

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

Question 7

When can a bystander recover for NIED?

Answer 7

1. closely related to person injured (relational)
2. present at the scene of injury (geographic)
3. personally observe (temporal)

Question 8

To succeed in a NIED claim, most jurisdictions require…?

Answer 8

Some sort of physical manifestation

Question 9

True or false: A plaintiff who suffers only economic losses can recover under negligence

Answer 9

False. No recovery for pure economic loss.

Question 10

Explain the difference between wrongful death and a survival action

Answer 10

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

Question 11

True or false: wrongful life suits are generally prohibited

Answer 11

True. In the states where allowed, limited to special damages attributed to child’s disabiility

Question 12

True or false: wrongful birth suits are generally prohibited

Answer 12

False. Parents can recover for medical expenses plus pain and suffering.

Question 13

Respondeat Superior: employer is responsible for the negligence of an employee if it occurred…?

Answer 13

during the scope of employment

Question 14

What is the difference between employer’s direct negligence and vicarious liability?

Answer 14

Direct negligence: employer’s own bad decisions (hiring, training, practices)

Vicarious liable: employee’s actions are negligent and employer is liable

(can have both)

Question 15

True or false: employers are not liable for the intentional torts of employees

Answer 15

True, except when conduct is within the scope of employment

Question 16

What is the difference between a frolic and detour in determining scope of employment?

Answer 16

Detour: minor deviation, employer still liable
Frolic: major deviation, employer not liable

Question 17

List some non-delegable duties (that an independent K cannot perform)

Answer 17

1. inherently dangerous activities
2. duties to the public at large/specific plaintiffs for certain kinds of work
3. Shopkeepers – premises safe to public

Question 18

Under the apparent agency doctrine, an independent contractor will be treated as an employee if…?

Answer 18

1. injured person accepted contractor’s services based on a reasonable belief that the contractor was an employee
2. independent contractor’s negligence is a factual cause of harm to one who receives the services and such harm is within the scope of liability

Question 19

True or false: a vehicle owner (or owner of a dangerous object) is directly liable for entrusting that object to someone not in a position to care for it

Answer 19

True. Negligent entrustment

Question 20

True or false: parents are generally liable for their minor children’s torts

Answer 20

True, but parents can be found negligent with respect to their children’s conduct

Question 21

True or false, dram shop liability absolves a drunk driver from his acts and holds the server/establishment/hosts directly liable.

Answer 21

False. This is in addition to the drunk driver’s liable.

Question 22

Explain the Federal Torts Claims Act

Answer 22

Expressly waives immunity and allows the fed gov to be sued for certain torts

Question 23

True or false: federal employees may liable under state tort law

Answer 23

False. Westfall Act precludes personal liability on the part of a federal employee under state tort law

Question 24

Define joint and several liability

Answer 24

Two or more defendants are each liable for a single harm to plaintiff. Each can be held liable for the entire harm.