Torts AMP Set - Damages And Defenses Flashcards
A plaintiff will be barred from recovery if his negligence is greater than 50% in:
A Pure comparative negligence jurisdictions
B All partial comparative negligence jurisdictions
C All comparative negligence jurisdictions
D Some partial comparative negligence jurisdictions
B
In some partial comparative negligence jurisdictions, a plaintiff will be barred from recovery if his negligence was more serious than the defendant’s; i.e., the plaintiff will recover nothing if he was more than 50% at fault. In other states, a plaintiff will be barred from recovering if his negligence was at least as serious as that of the defendant; i.e., the plaintiff will recover nothing if he was 50% or more at fault. Hence, in all partial comparative negligence jurisdictions, a plaintiff will be barred from recovery if his negligence is greater than 50%. In pure comparative negligence jurisdictions, recovery is allowed no matter how great the plaintiff’s negligence is; e.g., a plaintiff who is 90% at fault may still recover 10% of his damages. Thus, a plaintiff would not be barred from recovery in all comparative negligence jurisdictions. QUESTION ID: T0098A Additional Learning
Under the traditional implied assumption of risk defense, a plaintiff in the stands could not recover against a defendant for being struck by a foul ball during the defendant’s baseball game.
In most comparative negligence jurisdictions, a court in this case likely would rule that the plaintiff:
A Can recover reduced damages based on the shared risk of the activity.
B Cannot recover damages if her unreasonable conduct contributed to her injury.
C Can recover reduced damages based on a comparison of fault.
D Cannot recover damages because the defendant has not breached his limited duty of care.
D
Most comparative negligence courts would rule in this case that the plaintiff cannot recover damages because the defendant has not breached his limited duty of care. Most comparative negligence jurisdictions have abolished the defense of implied assumption of risk, instead breaking down traditional assumption of risk situations into two categories: (i) When the defendant has only a limited duty to the plaintiff because of the plaintiff’s knowledge of the risks (e.g., being hit by a foul ball at a baseball game), a court may protect the defendant simply by holding that the defendant did not breach his limited duty of care. (ii) In contrast, when the defendant’s initial breach of duty to plaintiff is superseded by plaintiff’s assumption of a risk, a court will consider whether the plaintiff acted unreasonably and analyze it under comparative negligence rules. Hence, in the latter case, the plaintiff can recover damages even if her unreasonable conduct contributed to her injury, but will recover reduced damages based on a comparison of fault. However, the facts here fall in the first category - a “limited duty” situation - so the plaintiff will not recover any damages because the defendant has not breached his duty of care. A court will not use a measure of recovery based on the shared risk of the activity. QUESTION ID: T0101 Additional Learning
For the last clear chance doctrine to operate, the defendant must have been able to avoid harming the plaintiff __________.
A At the time of the accident
B Prior to the time of the accident
C At any point in time
A
For the last clear chance doctrine to operate, the defendant must have been able to avoid harming the plaintiff at the time of the accident. In short, the defendant must have had the “last clear chance” to avoid the accident. If the defendant’s only negligence had occurred prior to the time of the accident (e.g., she negligently failed to have the steering wheel fixed), the court will not apply the last clear chance doctrine. Thus, it is not correct to apply the doctrine to the defendant’s negligence at any point in time. QUESTION ID: T0093A Additional Learning
What is the effect of comparative negligence on other doctrines in most states?
A The defense of express assumption of risk is retained
Incorrect
B A plaintiff’s negligence is a defense to the defendant’s intentional tort
C There is no effect on the last clear chance doctrine
A
In most comparative negligence jurisdictions, the defense of express assumption of risk is retained. On the other hand, the last clear chance doctrine is NOT used in most comparative negligence jurisdictions. Also, while the plaintiff’s negligence will be taken into account when the defendant’s conduct was wanton and willful or reckless, the plaintiff’s negligence is NOT a defense to the defendant’s intentional tort. QUESTION ID: T0097B Additional Learning
Which of the following statements is true regarding the element of damages in a negligence action?
A Nominal damages may be awarded in the absence of proof of damages.
BThe plaintiff must show actual economic loss to recover damages.
C The plaintiff may recover damages for future harm.
C
The plaintiff may recover damages for future harm in a negligence action. Hence, the plaintiff is entitled to prospective damages for impaired future earning capacity, discounted to present value so as to avoid an excess award; i.e., the plaintiff receives an amount that, if securely invested, would produce the income that the jury wishes her to have. The plaintiff need NOT show actual economic loss to recover damages. The plaintiff is entitled to recover noneconomic damages, such as pain and suffering, without showing a dollar amount for those damages. Unlike for many intentional torts, however, nominal damages may NOT be awarded in the absence of proof of damages. The plaintiff must present some evidence of damages because damage is an essential element of the prima facie case for negligence. QUESTION ID: T0088 Additional Learning
The concept of imputed contributory negligence allows a defendant to use the contributory negligence of a third party as a defense against the plaintiff, where the plaintiff and the third party stand in a particular relationship.
Which of the following relationships will permit the imputation of contributory negligence?
A Employer and employee
B Parent and child
C Automobile owner and driver
D Husband and wife
A
The relationship between employer and employee may permit the employee’s contributory negligence to be imputed to the employer, as long as the employee was acting within the scope of her employment. Hence, a defendant can raise the employee’s contributory negligence as a defense when the employer is suing the defendant. As a general rule, the relationship between automobile owner and driver will not support imputed contributory negligence. Unless the owner has some additional relationship with the driver (such as employer-employee), the driver’s negligence will not be imputed to the owner. Neither husband and wife nor parent and child are relationships that support the imputed contributory negligence doctrine. QUESTION ID: T0094 Additional Learning
A contributorily negligent plaintiff cannot rely on the last clear chance doctrine when she was in a position of __________ peril and the defendant __________ of her predicament.
A inattentive; knew
B inattentive; should have known
C helpless; knew
D helpless; should have known
B
The last clear chance doctrine does not apply when the plaintiff is in a position of inattentive peril and the defendant should have known of her predicament. Under the last clear chance doctrine, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence, depending on the situation. An inattentive peril situation exists where the plaintiff, through her own negligence, is in a position of actual peril from which she could extricate herself if she were attentive. Almost all courts require actual knowledge of the plaintiff’s predicament on the defendant’s part. In contrast, a helpless peril situation exists where the plaintiff, through her contributory negligence, puts herself in a position of actual peril from which she cannot extricate herself. The majority of courts require either that the defendant knew or should have known of the plaintiff’s predicament. QUESTION ID: T0092 Additional Learning
When an injured party neglects to take available steps to treat personal injuries inflicted by the defendant, the defendant can raise the doctrine of __________.
A assumption of risk
B avoidable consequences
C last clear chance
D contributory negligence
B
The defendant can raise the doctrine of avoidable consequences if an injured party neglects to take available steps to treat personal injuries inflicted by the defendant. Under that doctrine, the plaintiff owes a duty to mitigate damages to person or property after the damage is inflicted. If she does not properly do this, then damages will be reduced. Failure to mitigate damages has nothing to do with contributory negligence because the failure to mitigate did not contribute to the original accident; it is just a rule of damages. It also has nothing to do with last clear chance, which permits a plaintiff to recover damages despite her contributory negligence, or with assumption of risk, which pertains to actions or inaction by the plaintiff that contributed to the original accident. QUESTION ID: T0091 Additional Learning
A court likely will not permit a defendant to raise an assumption of risk defense when:
A Risk has been expressly assumed by a clause in a contract.
B The plaintiff’s injury was caused by a foul ball hit into the stands during a baseball game.
C The plaintiff’s injury was caused by the defendant’s wanton or reckless conduct.
D Risk has been assumed by a disclaimer from a common carrier.
D
The defendant cannot raise assumption of risk as a defense when risk has been assumed by a disclaimer from a common carrier. Because of public policy considerations, the courts uniformly hold that some risks may not be assumed. Hence, common carriers and public utilities are not permitted to limit their liability for personal injury by a disclaimer on, e.g., a ticket, a posted sign, etc. A plaintiff will be deemed to have assumed the risk of injury caused by a foul ball hit into the stands during a baseball game. Knowledge of that risk will be implied because it is one that the average person would recognize. Assumption of risk may be a defense even when the plaintiff’s injury was caused by the defendant’s wanton or reckless conduct. However, assumption of risk is not a defense to a defendant’s intentional torts. Unless the contract is one-sided, the risk may be expressly assumed by a clause in a contract. Such exculpatory clauses are closely scrutinized but are generally enforceable. QUESTION ID: T0096 Additional Learning
A plaintiff cannot employ the last clear chance doctrine if:
A The defendant’s negligence occurred prior to the accident
B The plaintiff was contributorily negligent
C The plaintiff put himself in peril
A
A plaintiff cannot employ the last clear chance doctrine if the defendant’s negligence occurred prior to the accident. Under traditional contributory negligence rules, a defendant who was negligent prior to the accident is not liable if the plaintiff was contributorily negligent. However, if the defendant was negligent at the time of the accident (by not avoiding the accident even though she had the last clear chance to do so), a plaintiff can employ the doctrine to recover even though the plaintiff was contributorily negligent. The last clear chance doctrine is in effect a rebuttal for the plaintiff if he acted with contributory negligence. The plaintiff can also use the doctrine if the plaintiff put himself in peril. A defendant can still be liable under these circumstances if she either had actual knowledge of the plaintiff’s predicament or should have known of the plaintiff’s predicament and had the last clear chance to avoid the accident. QUESTION ID: T0093B Additional Learning
Under the last clear chance doctrine, a defendant will be liable despite the plaintiff’s inattentive peril __________.
A Only if she had actual knowledge of the peril
B Under no circumstances
C If she had actual knowledge or should have known of the peril
A
Under the last clear chance doctrine, a defendant will be liable despite the plaintiff’s inattentive peril only if she had actual knowledge of the peril. Inattentive peril exists where a plaintiff, through his own negligence, is in a position of actual peril from which he could extricate himself if he were attentive. It is not enough that the defendant should have known of the peril; this defense requires actual knowledge of the plaintiff’s predicament on the defendant’s part. Hence, it is not correct to state that the defendant will be liable under no circumstances. QUESTION ID: T0092B Additional Learning
Which of the following generally is recoverable as damages in a negligence action?
A Damages that were recouped from insurance or other sources
B Attorneys’ fees
C Interest from the date of damage in a personal injury action
D Additional damages caused by the failure to mitigate damages
A
Although some states have modified this rule by statute, the general rule is that damages that were recouped from insurance or other sources may still be recovered by the plaintiff in a negligence action. This is known as the collateral source rule. In contrast, interest from the date of damage in a personal injury action and attorneys’ fees are not recoverable in a negligence action. As in all cases, the plaintiff has a duty to take reasonable steps to mitigate damages. Hence, additional damages caused by the failure to mitigate damages cannot be recovered by the plaintiff. QUESTION ID: T0090 Additional Learning
Which of the following is true under a comparative negligence system?
A When multiple defendants are involved, each defendant will be liable to the plaintiff only for the amount of damages that equates to his share of the fault.
B The plaintiff’s negligence will not be compared if the defendant’s conduct was reckless.
C Express assumption of risk is not recognized as a defense.
D The last clear chance doctrine is not applied.
D
In a comparative negligence jurisdiction, the trier of fact weighs the plaintiff’s negligence against that of the defendant and reduces the plaintiff’s damages accordingly. Because this does away with the “all or nothing” approach of traditional contributory negligence, the last clear chance doctrine is not applied in most comparative negligence jurisdictions. Comparative negligence focuses on the fault of the plaintiff in relation to the defendant. Whether each defendant is liable to the plaintiff only for his share of the fault when multiple defendants are involved depends on whether the state has retained the rule of joint and several liability. Comparative negligence rules apply even though the defendant’s conduct was reckless, and express assumption of risk is retained as a defense in most comparative negligence states. QUESTION ID: T0097 Additional Learning
Which of the following is correct for the defense of contributory negligence?
A A failure to mitigate damages is not contributory negligence
Incorrect
B The standard of care for contributory negligence is greater than that for ordinary negligence
C A plaintiff can never recover if he is found to be contributorily negligent
A
A failure to mitigate damages is not contributory negligence; rather, it is an avoidable consequence. A plaintiff owes a duty to mitigate damages to a person or property after the damage has been inflicted. If he does not, damages will be reduced. The standard of care for contributory negligence is NOT greater than that for ordinary negligence; rather, the standard of care is the same. A plaintiff CAN sometimes recover even if he is found to be contributorily negligent. Even under the common law “all or nothing” approach to contributory negligence, the doctrine of last clear chance provides that the person with the last clear chance to avoid an accident who fails to do so is liable. This is the plaintiff’s rebuttal against a defense of contributory negligence. QUESTION ID: T0091A Additional Learning
For comparative negligence jurisdictions, which situation requires consideration of the reasonableness of the plaintiff’s conduct?
A When the defendant’s initial breach of duty to the plaintiff is superseded by the plaintiff’s assumption of a risk
B When the plaintiff has expressly assumed the risk
C When the defendant has only a limited duty to the plaintiff because of the plaintiff’s knowledge of the risks
A
Most comparative negligence jurisdictions have abolished entirely the defense of implied assumption of risk. In these jurisdictions, traditional assumption of risk situations can be broken down into two categories. In one category, which is a variant of contributory negligence, the reasonableness of the plaintiff’s conduct becomes relevant. This situation arises when the defendant’s initial breach of duty to the plaintiff is superseded by the plaintiff’s assumption of a risk. If the plaintiff has behaved unreasonably, he is contributorily negligent and damages will be apportioned. The other category arises when a defendant has only a limited duty to the plaintiff because of the plaintiff’s knowledge of the risks (e.g., being hit by a foul ball at a baseball game). A court may protect the defendant in this situation simply by holding that the defendant did not breach his limited duty of care. The reasonableness of the plaintiff’s conduct is not considered. It is not relevant that the plaintiff’s conduct is unreasonable when the plaintiff has expressly assumed the risk. QUESTION ID: T0101B Additional Learning
