Damages and Defenses to Negligence

Eggshell Skull Plaintiff

Defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable

Personal Injury Damages

P is to be compensated for all damages both economic (medical expenses, lost wages) and noneconomic (pain and suffering). A plaintiff suffering physical injury may also recover damages for any resulting emotional distress

Property Damage

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 incident. Emotional distress damages generally cannot be recovered for negligent harm to property, which includes pets

Punitive Damages

punitive damages are generally only available in negligence cases if defendant’s conduct is “wanton and willful",” reckless, or malicious

Nonrecoverable Items

(1) interest from the date of damage in a personal injury action (pre-judgment interest) and (2) attorneys’ fees

Duty to Mitigate

P has a duty to take reasonable steps to mitigate damages, such as seeking appropriate medical treatment

Collateral Source Rule

Under the collateral source rule, damages are not reduced just because the plaintiff received benefits from other sources, such as insurance

Contributory Negligence

Depending on the Jx, a plaintiff’s own negligent acts that result in his injury may decrease or even nullify a reward

Contributory Negligence and Negligence Per Se

Contributory Negligence can be a defense to a defendant’s negligence per se, but only if the statute was not designed to protect this class of plaintiffs from their incapacity and lack of judgment.

Contributory Negligence Intentional Torts

Contributory negligence is not a defense to an intentional tort

Last Clear Chance

Last clear chance permits a plaintiff to recover despite their contributory negligence. The person with the last clear chance to avoid an accident who fails to do so is liable for negligence

Helpless Peril Last Clear Chance

In many states, if the plaintiff is in “helpless peril",” D will be liable if they knew or should have known of P’s predicament

Last Clear Chance Inattentive Peril

In situations where P could have extricated himself if he had been attentive, the defendant must actually have known of the plaintiff’s predicament in order for P to assert the last clear chance doctrine

Last Clear Chance Prior Negligence

If the defendant’s only negligent actions occurred before the plaintiff’s negligent action, then the last clear chance doctrine cannot help the plaintiff

Imputed Contributory Negligence

The contributory negligence of a third party will be imputed to the plaintiff only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for third party’s negligence.

Imputed Contributory Negligence examples

Negligence is imputed in: employer'-employee, partner, and joint venture relationships. Negligence is not imputed between spouses, parent and child, and automobile owner and driver.

Assumption of Risk

A plaintiff may be denied recovery if they assumed the risk of any damage caused by D’s act. P must have (1) known of the risk and (2) voluntarily proceeded despite the risk

Implied Assumption of Risk

Knowledge may be implied where the risk is one that an average person would appreciate. This does not apply where P has no available alternative to proceeding in the face of the risk, or in situations such as fraud, force, or an emergency.

Assumption of Risk group exceptions

Common carrier and public utilities may not limit their liability (and therefore use assumption of risk) by disclaimer. Members of a class protected by statute will not be deemed to have assumed any risk

Express Assumption of Risk

Except for certain cases such as common carrier and public utilities, risk may be assumed by an express agreement

Assumption of Risk and Intentional Torts

Assumption of Risk is not a defense to an intentional tort, but it is a defense to wanton and willful misconduct.

Comparative Negligence Generally

Many states have replaced contributory negligence with comparative negligence, which reduces the amount P recovers by an amount proportional to their negligence rather than barring any recovery

Partial Comparative Negligence

The majority of states use partial comparative negligence, which bars the plaintiff’s recovery if P’s negligence was more serious than D’s negligence. In some states, P is barred if his negligence is at least as serious as thee defendant’s. If there are multiple defendants, the plaintiff’s negligence will be compared to the total negligence of all defendants combined

Pure comparative negligence

States that have adopted pure comparative negligence allow recovery no matter how great plaintiff’s negligence was. California is a pure comparative negligence state.

Comparative Negligence and Last Clear Chance

Last clear chance is not used in comparative negligence jurisdictions

Comparative Negligence Assumption of Risk

Express assumption of risk is a complete defense. Implied assumption of risk is analyzed as either: (1) a limitation on the duty owed to the plaintiff; or, more commonly, (2) contributory negligence

Comparative Negligence Wanton and Wilful Misconduct

P’s negligence will be taken into account in most states even though D’s conduct was “wanton and willful” or “reckless.” However, P’s negligence is still no defense to intentional torts.