Liability Issues

Last Clear Chance Doctrine

Under the traditional contributory negligence jurisdictions, if the defendant had the last clear chance to avoid the harm, but failed to do so, then the plaintiff can still recover.

Inattentive Plaintiff

Under the traditional contributory negligence jurisdictions, where a plaintiff is in peril due to his or her own inattention, the defendant is liable only if he had the actual knowledge of the plaintiff's peril.

Collateral Source Rule

Under the traditional rule, a defendant would be liable for damages even if the plaintiff had received compensation for that harm from some other collateral source (e.g. insurance)

Negligent Infliction of Emotional Distress

A plaintiff can recover for negligent infliction of emotional distress from a defendant whose negligence creates a foreseeable risk of foreseeable physical injury to the plaintiff if the defendant's action causes a threat of physical impact that in turn causes emotional distress.

Economic Loss Rule

A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action.

Comparative Negligence

In a comparative negligence jurisdiction, damages are apportioned between the defendant and plaintiff based on their relative degrees of fault.

Respondeat Superior

An employer is liable for employee torts within the scope of employment that includes acts that they do as part of their work or risks that are inherent in the working relationship.

Independent Contractor Liability

An employer may be liable for the torts of independent contracts in the following circumstances: inherently dangerous activities; non-delegable duties; duty of an operator of premises open to the public to keep premises safe; and the duty to comply with safety statutes.

Actual Harm Rule

Unlike actions for intentional torts, nominal damages are not recoverable in negligence actions, thus the plaintiff must prove actual harm.

Pure Several Liability

Each defendant is held liable for his or her own share of the damages.

Independent Contractors:

Employers are not vicariously liable for the torts of independent contractors. An independent contractor is one who is not subject to the right of control by the employer. If the employer has the right to control how someone does the work, then courts will often consider that person an employee for this purpose.

Modified Comparative Negligence (equal fault)

In a most jurisdictions, if the plaintiff and defendant are equally at fault, the plaintiff recovers half his damages; however, in a few jurisdictions, if the fault is equal then plaintiff recovers nothing.

Pure Comparative Negligence

Ina pure comparative negligence jurisdiction, the plaintiff's comparative negligence is never a complete bar to recover, and the plaintiff's damages are reduced by the extent to which the plaintiff contributed to the harm.

NIED: Bystander

Some courts allow for a bystander outside the zone of danger if the plaintiff: is closely related to the person injured; was present at the scene of the injury; and personally observed the injury.

NIED: Physical Injury Exception

Some courts make exceptions to the physical injury requirement, as in cases of misinforming someone that a family member has died or negligently mishandling a corpse.

Eggshell Plaintiff

The defendant is liable for the full extent of the damages proximately caused by the negligence even if the extent is unusual or unforeseeable.

NIED: Injury

The emotional distress generally must result in some form of bodily harm, and the plaintiff must show that he was in the zone of danger.

Modified Comparative Negligence (majority)

The majority rule is that if the plaintiff is less at fault than the defendant, the plaintiff's recover is reduced by his percentage of fault; however, if the plaintiff is more at fault than the defendant, the plaintiff cannot recover.

Joint and Several Liability

The plaintiff can sue either of two or more defendants who are found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm.

Helpless Plaintiff

Under the traditional contributory negligence jurisdictions, a plaintiff who due to his own contributory negligence from which he cannot escape is called a helpless plaintiff, and the defendant is liable if she knew or should have known of the plaintiff's peril and could have avoided harming the plaintiff.

Punitive Damages

The plaintiff may be entitled to punitive damages if he can establish by C&CE that the defendant acted willfully and wantonly, recklessly or with malice.

Duty to Mitigate

The plaintiff must take reasonable steps to reduce the harm caused by the defendant's negligence.

Indemnification

The shifting of the entire loss from one joint tortfeasor to another party.

Contributory Negligence

The traditional rule of contributory negligence provides that the plaintiff's failure to exercise due care acts as a clear bar to recovery.

Compensatory Damages Available

Typical categories of damages recoverable in a personal injury action include: medical expenses; past and future pain and suffering; and lost income and any reduction in future earning capacity.

Contribution

When one defendant has been held liable for the whole harm under joint and several liability, he or she can recover a fair portion of that from other defendants.

Vicarious Liability: General

Where one party is held liable for the negligence of another party.

Assumption of Risk

Where the plaintiff knowingly and willingly accepts a risk, he cannot recover and this assumption acts as a complete bar to recovery.