Part Five.4: Negligence > Damages

Question 1

What is the general rule regarding “negligence” and “damages”?

Answer 1

“Damages” are an essential element of negligence.

Thus –> damage will not be presumed (and nominal damages are not available)

Question 2

What is the measure of damages for personal injury?

Answer 2

P is to be compensated for ALL his damages (past, present, prospective) - both:

1. economic damages (ie..medical expenses); and
2. non-economic damages (pain and suffering)

NOTE: a plaintiff suffering physical injury may also recover damages for resulting emotional distress

Question 3

What is the measure of damages for property damage?

Answer 3

• Reasonable cost of repair, or, if the property is nearly destroyed, fair market value at time of accident

Note: emotional distress damages generally cannot be recovered from harm to property

Question 4

What is the rule regarding “negligence” and “punitive damages”?

Answer 4

• punitive damages are generally NOT available for negligence cases.

HOWEVER –> P may recover punitive damages is D’s conduct is “wanton and willful”, reckless, or malicious

Question 5

What are non-recoverable items?

Answer 5

1. interest from date of damage in personal injury case;

2. attorney fees

Question 6

What is the “duty to mitigate” ?

Answer 6

P has a duty to take REASONABLE STEPS to mitigate damages

Example –> seek appropriate treatment

Question 7

What is the “collateral source” rule?

Answer 7

Damages are not reduced just bc P received benefits from other sources (ie…health insurance).