Module 12 - Damages

What is an essential element of negligence, and what does the "eggshell-skull" plaintiff rule state?

Damage is an essential element of negligence, meaning damage must be proven, and nominal damages are not available. The "eggshell-skull" rule states that the defendant is liable for all damages, even if the severity was unforeseeable.

What damages are recoverable in personal injury cases?

All damages (past, present, and future), including economic damages (medical expenses, lost wages) and noneconomic damages (pain and suffering). Emotional distress is also recoverable if physical injury occurs

What is the measure of damages for property damage?

The reasonable cost of repair, or if the property is destroyed, its fair market value at the time of the accident. Emotional distress is generally not recoverable for negligent harm to property.

Are punitive damages available in negligence cases?

Punitive damages are generally not available in negligence cases unless the defendant's conduct was "wanton and willful," reckless, or malicious.

What two items are nonrecoverable in negligence cases?

(1) Pre-judgment interest and (2) attorneys' fees.

What duty does the plaintiff have regarding damages?

The plaintiff has a duty to mitigate damages by taking reasonable steps to limit harm, such as seeking appropriate treatment.

What is the collateral source rule in negligence cases?

The plaintiff's damages are not reduced because they received benefits from other sources, such as health insurance.

What is contributory negligence?

Contributory negligence occurs when the plaintiff's own negligence contributes to their injuries and may bar or reduce recovery.

Is contributory negligence a defense to a defendant's statutory violation?

Yes, unless the statute was designed to protect the class of plaintiffs from their incapacity or lack of judgment (e.g., a child in a school zone).

Can contributory negligence be used as a defense in intentional torts?

No, contributory negligence is not a defense to intentional tortious conduct or wanton and willful misconduct.

What is the last clear chance doctrine?

It allows a plaintiff to recover despite their contributory negligence if the defendant had the last clear chance to avoid the accident but failed to do so.

What is imputed contributory negligence?

The contributory negligence of a third party is imputed to a plaintiff only if the plaintiff could be vicariously liable for the third party's negligence.

What is assumption of risk, and what are its two forms?

Assumption of risk occurs when the plaintiff knowingly and voluntarily assumes the risk of harm. It can be (1) implied, where the risk is obvious, or (2) express, through an agreement.

Is assumption of risk a defense to intentional torts?

No, it is not a defense to intentional torts but is a defense to wanton and willful misconduct.

What is comparative negligence, and how does it differ from contributory negligence?

Comparative negligence reduces the plaintiff's damages based on their percentage of fault. Unlike contributory negligence, it does not completely bar recovery unless the plaintiff's negligence exceeds the defendant's.

What happens in partial comparative negligence jurisdictions if the plaintiff is more negligent than the defendant?

In partial comparative negligence states, the plaintiff's recovery is barred if their negligence is more serious than or equal to the defendant's negligence.

How does pure comparative negligence work?

In pure comparative negligence, the plaintiff can recover damages even if they were mostly at fault, but their recovery is reduced by their percentage of fault.

How does comparative negligence affect the last clear chance doctrine?

Last clear chance is not used in comparative negligence jurisdictions.

How is assumption of risk treated in comparative negligence states?

Express assumption of risk is a complete defense, while implied assumption of risk is analyzed as either contributory negligence or a limitation on the defendant's duty.

Can a plaintiff's negligence reduce recovery in cases of wanton and willful conduct by the defendant?

Yes, in most states, the plaintiff's negligence is taken into account, even if the defendant's conduct was wanton and willful.