T12 Damages Flashcards
DAMAGES.
can they b presumed?
Damage is an essential element of negligence; thus, damage will not be presumed (and nominal damages are not available).
In all cases, the defendant takes the plaintiff as they find the plaintiff; meaning, the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.
This is also known as the “eggshell-skull” plaintiff rule.
Personal Injury.
What damages?
How can a plaintiff suffering physical injury be compensated?
The P is to be compensated for
all their damages (past, present, and prospective), both
economic damages (such as medical expenses) and
noneconomic damages (such as pain and suffering).
A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.
Property Damage.
How to measure damages?
The measure of damage is the reasonable cost of repair or, if the property is totally or nearly destroyed, its fair market value at the time of the accident.
Emotional distress damages generally cannot be recovered for negligent harm to property.
Under this last stated rule, a person cannot recover for emotional distress if another party negligently injures or kills their pet.
Eggshell skull doctrine
Once Plaintiff ahs established all other elements of claim, plaintiff receives ALL damages suffered, even if suprisingly great in scope.
Punitive Damages.
When can P recover punitive damages?
Punitive damages generally are not available in negligence cases.
However, a plaintiff may recover punitive damages if defendant’s conduct is “wanton and willful,” reckless, or malicious.
Nonrecoverable Items
Nonrecoverable items include:
(1) interest from the date of damage in a personal injury action (sometimes called “pre-judgment interest”), and
(2) attorneys’ fees.
Duty to Mitigate
As in all cases, the P has a duty to take reasonable steps to mitigate damages (for example, seek appropriate treatment).
Collateral Source Rule
Damages are not reduced just because the plaintiff received benefits from other sources (for example, health insurance).
CONTRIBUTORY NEGLIGENCE
As Defense to Defendant’s Violation of Statute
Intentional Torts
Effect?
Contributory negligence is negligence on the part of the plaintiff that contributes to the plaintiff’s injuries.
The standard of care for contributory negligence is the same as for ordinary negligence.
Hence, a rescuer will not be deemed contributorily negligent without taking into account the emergency situation.
Also, the plaintiff’s violation of an applicable statute may be used to establish their contributory negligence.
As Defense to Defendant’s Violation of Statute: Contributory negligence is a defense to negligence proved by the defendant’s violation of an applicable statute unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment (for example, a child injured after darting into street in school zone and getting hit by speeding car of the defendant).
No Defense to Intentional Torts
Contributory negligence is not a defense to wanton and willful misconduct or intentional tortious conduct.
Effect of Contributory Negligence: Contributory negligence completely barred the plaintiff’s right to recovery at common law. However, almost all jurisdictions now favor a comparative negligence system (see below).
Last Clear Chance—An Exception to Contributory Negligence
a. Helpless Peril
b. Inattentive Peril
Last clear chance permits a plaintiff to recover despite their contributory negligence.
Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence.
(Last clear chance is essentially the plaintiff’s rebuttal to the defense of contributory negligence.)
a. Helpless Peril
In many states, if the P is in “helpless peril,” the D will be liable if they knew or should have known of the plaintiff’s predicament.
b. Inattentive Peril
In “inattentive peril” situations (that is, where the P could have extricated themselves if attentive), the D must actually have known of the plaintiff’s predicament.
c. Prior Negligence Cases
For the last clear chance doctrine to apply, the defendant must have been able, but failed, to avoid harming the P at the time of the accident. If the D’s only negligence occurred earlier, the doctrine will not apply.
Imputed Contributory Negligence
As a general rule, the contributory negligence of a third party will be imputed to a plaintiff (and bar the plaintiff’s claim) only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party’s negligence.
Negligence is imputed in employer-employee, partner, and joint venturer relationships.
Negligence is not imputed between spouses, parent and child, and automobile owner and driver.
ASSUMPTION OF RISK.
Rule?
Test?
Defense to what?
The P may be denied recovery if they assumed the risk of any damage caused by the D’s act.
The plaintiff must have:
• KNOWN (can b implied) of the RISK and
• VOLUNTARILY PROCEEDED in the FACE of the RISK
Implied Assumption of Risk
Knowledge may be implied where the risk is one that an average person would clearly appreciate.
The plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency.
Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.
Express Assumption of Risk
The risk may be assumed by an express agreement.
No Defense to Intentional Torts
Assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful misconduct.
COMPARATIVE NEGLIGENCE:
two types
Assume that PURE comparative negligence applies unless the question states otherwise.
Comparative negligence: D shows Plaintiff failed to exercise proper care for his own safety.
Result: Jury wil be instructed to assign percent of fault. Plaintiff’s recovery reduced based on Plaintiff’s percentage of fault.
In comparative negligence states, the plaintiff’s contributory negligence is not a complete bar to recovery.
Rather, the trier of fact weighs the plaintiff’s negligence and reduces damages accordingly (for example, if the P is 10% at fault, their damages are reduced by 10%). There are no rules governing the assignment of fault; the numbers are left to the discretion of the jury.
PARTIAL: A majority of states have adopted partial comparative negligence, which still bars the plaintiff’s recovery if their negligence was more serious than the defendant’s negligence (or in some states at least as serious as the defendant’s).
If more than one D has contributed to the plaintiff’s injury, the P’s negligence will be compared with the total negligence of all the Ds combined. States that have adopted pure comparative negligence allow recovery no matter how great plaintiff’s negligence was.
1) Partial Comparative Negligence Jurisdiction—Single Defendant with Counterclaim
- P is 30% negligent and D is 70% negligent in causing the accident. Each party suffers $100,000 in damages.
P will recover $70,000 from D—$100,000 minus 30% ($30,000).
D will recover nothing from P because D was more than 50% at fault.
2) Partial Comparative Negligence Jurisdiction—Multiple Defen- dants
- P is 40% negligent in causing the accident and suffers $100,000 in damages.
- D1 is 35% negligent and D2 is 25% negligent.
P can recover $60,000 from either D1 or D2 under joint and several liability rules.
Note that if D1 or D2 also suffered damages, each of them would have a claim against the other two negligent parties because each one’s negligence is less than the total negligence of the other two.
