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Flashcards in Damages and Defenses Deck (25):
1

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. All partial comparative negligence jurisdictions

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

2

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. Cannot recover damages because the defendant has not breached his limited duty of care.

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

3

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. At the time of the accident.

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

4

What is the effect of comparative negligence on other doctrines in most states?

A. The defense of express assumption of risk is retained
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. The defense of express assumption of risk is retained.

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

5

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.
B. The 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.

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

6

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. Employer and employee.

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

7

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. inattentive; should have known.

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

8

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. avoidable consequences.

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

9

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. Risk has been assumed by a disclaimer from a common carrier.

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

10

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. The defendant’s negligence occurred prior to the accident.

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

11

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. Only if she had actual knowledge of the peril.

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

12

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. Damages that were recouped from insurance or other sources.

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

13

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. The last clear chance doctrine is not applied

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

14

Which of the following is correct for the defense of contributory negligence?

A. A failure to mitigate damages is not contributory negligence
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.

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

15

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. When the defendant’s initial breach of duty to the plaintiff is superseded by the plaintiff’s assumption of a risk.

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

16

Which of the following is correct as to the assumption of risk defense?

A. Assumption of risk is not a defense to wanton conduct
B. Assumption of risk is a defense to intentional torts
C. Assumption of risk is a defense to reckless conduct

C. Assumption of risk is a defense to reckless conduct.

Assumption of risk is a defense to reckless conduct. It is also a defense to wanton conduct, which is essentially gross negligence. Assumption of risk, however, is NOT a defense to intentional torts. QUESTION ID: T0096A Additional Learning

17

Which of the following is correct regarding personal injury damages in a negligence action?

A. The plaintiff may not recover damages for prospective harm
B. The defendant may be liable for unforeseeable harm
C. The plaintiff’s economic damages may include damages for emotional distress

B. The defendant may be liable for unforeseeable harm.

In a negligence action, the defendant may be liable for unforeseeable harm. A plaintiff is entitled to all damages that he can prove, even if the extent of the damages was unforeseeable. Furthermore, a plaintiff MAY recover damages for prospective harm—i.e., damages to compensate the plaintiff for the expected future damages that the plaintiff will suffer because of the injury. A plaintiff’s economic damages do NOT include damages for emotional distress—those are a type of noneconomic damages, like pain and suffering. QUESTION ID: T0089A Additional Learning

18

In a negligence action, the plaintiff cannot recover __________.

A. Damages for lost future earning capacity
B. Presumed damages
C. Noneconomic damages
D. Unforeseeable damages

B. Presumed damages.

In a negligence action, the plaintiff cannot recover presumed damages. Damage is an essential element of a plaintiff’s prima facie case for negligence. This means actual harm or injury. Unlike for some intentional torts, damage will not be presumed in negligence. A plaintiff is entitled to all damages that he can prove, even if the extent of the damages was unforeseeable. Permissible damages includes economic damages, such as medical expenses and lost earnings, and noneconomic damages, such as pain and suffering. The plaintiff is also entitled to damages for lost future earning capacity, discounted to present value to avoid an excess award; i.e., the plaintiff receives an amount that, if securely invested, would produce the income that the jury wishes him to have. QUESTION ID: T0088B Additional Learning

19

How have most comparative negligence jurisdictions analyzed assumption of risk?

A. They have abolished both express and implied assumption of risk as a separate defense
B. They have abolished implied assumption of risk as a separate defense
C. They have abolished express assumption of risk as a separate defense
D. They have not modified their analysis of assumption of risk

B. They have abolished implied assumption of risk as a separate defense.

Most comparative negligence jurisdictions have abolished implied assumption of risk as a separate defense. Instead, they break 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. Most comparative negligence jurisdictions have NOT abolished express assumption of risk as a separate defense; rather, that defense is retained. Hence, it is incorrect to state that they have abolished both as a separate defense or have not modified their analysis. QUESTION ID: T0101A Additional Learning

20

Which of the following statements is true regarding the doctrine of last clear chance?

A. It applies to negligence by the defendant that occurs prior to the plaintiff’s negligent conduct.
B. It requires the defendant to have actual knowledge that the plaintiff is in a position of peril from which he cannot extricate himself.
C. It was developed to mitigate the traditional “all or nothing” effect of contributory negligence.
D. It is in effect the defendant’s rebuttal to the plaintiff’s contributory negligence.

C. It was developed to mitigate the traditional “all or nothing” effect of contributory negligence.

The last clear chance doctrine was developed to mitigate the traditional “all or nothing” effect of contributory negligence. 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. Because the doctrine permits the plaintiff to recover despite his own contributory negligence, it is in effect the plaintiff’s rebuttal to a defendant raising the defense of the plaintiff’s contributory negligence. Negligence by the defendant that occurs prior to the plaintiff’s negligent conduct is not covered by the last clear chance doctrine. For last clear chance to operate, defendant must have been able to avoid harming plaintiff at the time of the accident. If the plaintiff is in a position of peril from which he cannot extricate himself, most courts will apply the doctrine not just when the defendant has actual knowledge of the plaintiff’s peril but also when the defendant should have known of the plaintiff’s peril. QUESTION ID: T0093 Additional Learning

21

The concept of imputed contributory negligence allows a defendant to use the contributory negligence of a third party as a defense against the plaintiff.

Which of the following is correct regarding imputed contributory negligence?

A. Imputed contributory negligence imputes the negligence of the third party to the defendant
B. Imputed contributory negligence requires a special relationship between the plaintiff and the third party
C. Imputed contributory negligence requires a special relationship between the defendant and the third party

B. Imputed contributory negligence requires a special relationship between the plaintiff and the third party.

Imputed contributory negligence requires a special relationship between the plaintiff and the third party. Contributory negligence will be imputed only where the plaintiff and the negligent person stand in such a relationship to each other that the courts find it proper to charge the plaintiff with that person’s negligence (i.e., where the plaintiff would be found vicariously liable for the negligent person’s conduct if a third party had brought the action). Imputed contributory negligence does NOT require a special relationship between the defendant and the third party. Imputed contributory negligence does NOT impute the negligence of the third party to the defendant; rather, the defendant uses it as a contributory negligence defense by imputing the negligence of the third party to the plaintiff because of the relationship between them. QUESTION ID: T0094A Additional Learning

22

Which of the following is not true with regard to “partial” comparative negligence?

A. A plaintiff will recover nothing if his negligence was more serious than that of the defendant.
B. When multiple defendants are involved, the plaintiff’s negligence is compared with the negligence of each defendant separately to determine whether the threshold level has been reached.
C. Most jurisdictions have adopted “partial” comparative negligence rather than “pure” comparative negligence.
D. Some partial comparative negligence jurisdictions will deny recovery to a plaintiff whose negligence was equal to the defendant’s negligence.

B. When multiple defendants are involved, the plaintiff’s negligence is compared with the negligence of each defendant separately to determine whether the threshold level has been reached.

Most partial comparative negligence jurisdictions use a “combined comparison” approach when several defendants have contributed to the plaintiff’s injury: The plaintiff’s negligence is compared with the total negligence of ALL defendants combined to determine whether the threshold level has been reached. Most jurisdictions have adopted “partial” comparative negligence. In some of these states, a plaintiff will be barred if his negligence was more serious than that of the defendant (i.e., the plaintiff will recover nothing if he was more than 50% at fault). In the 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 of these states, a plaintiff will recover nothing if his negligence was more serious than that of the defendant. In the states with the 50% or more rule, a plaintiff whose negligence was equal to the defendant’s negligence will be denied recovery. QUESTION ID: T0098 Additional Learning

23

A small cruise ship struck a whale swimming underwater, causing the ship to suddenly lurch sideways. A passenger on the ship who was walking down a corridor lost his balance and bumped his head on the edge of a doorway. Because of a previously existing medical condition that made him susceptible to bleeding on the brain, he suffered a cerebral hemorrhage and permanent mental impairment, despite prompt medical attention on the ship. The passenger brought suit against the cruise ship owner for his damages. At trial, the passenger presented evidence of how he was injured as he walked down the hallway, his previous medical condition, and his medical expenses and other damages. The cruise ship owner presented evidence that the cruise ship was following its approved route and that the whale could not have been detected before impact, and that the bump would not have injured someone in ordinary health. At the close of the evidence, the cruise ship owner moved for a directed verdict. How should the court rule?

A. Grant the motion, because there is no evidence that the crew operated the ship negligently.
B. Grant the motion, because the cruise ship owner introduced uncontroverted evidence that a person in normal health would not have been injured by the bump.
C. Deny the motion, because the jury could find that the cruise ship owner, as a common carrier and innkeeper, breached its high duty of care to the passenger.
D. Deny the motion, because the fact that the severity of the passenger’s injuries was not
foreseeable does not cut off the cruise ship owner’s liability.

A. Grant the motion, because there is no evidence that the crew operated the ship negligently.

The court should grant the cruise ship owner’s motion because the passenger has not established a prima facie case of negligence against the cruise ship. To establish a prima facie case for negligence, a plaintiff must show (i) a duty of care, (ii) breach of that duty, (iii) actual and proximate cause, and (iv) damages. As a common carrier and/or an innkeeper, the cruise ship owed its passengers a high duty of care, and therefore would be liable for slight negligence. However, the passenger has offered no evidence to establish that the cruise ship employees breached that duty, and res ipsa loquitur is not applicable here because the collision with the whale swimming underwater is not the type of event that would occur only as a result of negligence. Because the passenger failed to establish breach of duty, the court should grant the cruise ship owner a directed verdict. (B) is incorrect because the cruise ship owner does not need that evidence to prevail. While evidence that a person in normal health would not have been injured by the bump supports the cruise ship’s other evidence that it exercised due care, it is not necessary because the passenger has failed to offer evidence that the cruise ship owner breached its duty. On the other hand, if the cruise ship owner had breached its duty of care to its passengers, the fact that a person in normal health would not have been injured by the bump on the head would not be a defense to liability. If a defendant’s negligence causes an aggravation of a plaintiff’s existing physical illness, the defendant is liable for the damages caused by the aggravation. (C) is incorrect because, as discussed above, the passenger has failed to present evidence that the cruise ship owner breached the high duty of care that it owed to its guests. (D) is incorrect even though it is a true statement of law, as discussed above. The reason the cruise ship owner prevails is because the passenger has failed to establish a prima facie case.

24

A patient troubled by an irritating skin rash consulted a dermatologist for treatment. The dermatologist diagnosed the rash as a genetic condition that had no cure and would ultimately spread and lead to disfigurement. The patient was shocked and distressed by the diagnosis. On the advice of her family, a week later the patient consulted another doctor. That doctor immediately diagnosed the skin rash as a common bacterial infection and prescribed an ointment that cleared up the condition in a few days. Because the doctor was a friend of the family, the patient was not charged for that visit.Can the patient recover from the dermatologist for the emotional distress caused by his erroneous diagnosis?

A. Yes, but only if the patient's distress caused her some physical injury.
B. Yes, because the misdiagnosis by the dermatologist caused the patient actual harm.
C. No, because the patient did not have to pay for the second doctor visit.
D. No, because the dermatologist’s conduct did not create a foreseeable risk of physical injury to the patient.

B. Yes, because the misdiagnosis by the dermatologist caused the patient actual harm.

The patient’s distress is a recoverable element of damages caused by the dermatologist’s breach of duty to her. A medical specialist such as the dermatologist owes a duty to possess and exercise the degree of knowledge and skill that dermatologists across the nation exercise. He breached that duty by misdiagnosing a common skin infection that another doctor was able to diagnose immediately. His failure to properly diagnose the condition was the actual and proximate cause of injury to the patient; but for the misdiagnosis, she would not have had to continue suffering from the rash until the other doctor properly treated it. The continuation of the rash and any pain and suffering from it are compensable damages that she can recover from the dermatologist. Also compensable is the emotional distress that she suffered because of the misdiagnosis. While recovery for negligent infliction of emotional distress is not always available in many jurisdictions when there is no other injury caused by the breach, these restrictions do not apply when plaintiff is the victim of another tort that causes physical injury. Plaintiff can recover damages for emotional distress that arise from the tortious conduct. Hence, (A) is incorrect. (C) is incorrect because the patient has suffered compensable injury regardless of whether she had to pay for the second doctor visit. The continuation of the skin rash until she saw the other doctor suffices as the damage element of the prima facie case. (D) is incorrect because, given the patient's physical condition, a failure to make a proper diagnosis did create a foreseeable risk that she would continue to suffer from a painful condition that could otherwise have been alleviated. Thus, the dermatologist's conduct constituted a breach of duty.

25

A motorcyclist was injured in a collision and suffered $100,000 worth of injuries, including $20,000 in hospital and physician’s bills. The motorcyclist’s medical insurance company paid her $20,000 to cover hospital and medical expenses. Later, she filed suit against the driver of the car that struck her motorcycle. When the case came to trial, the jury agreed with the motorcyclist’s contention that her injuries were worth $100,000. The jury also determined that the motorcyclist was 30% negligent and that the driver was 70% negligent. How much should the motorcyclist recover from the driver?

A. $100,000.
B. $70,000.
C. $56,000.
D. $50,000.

B. $70,000.

The motorcyclist should recover $70,000 from the driver. Under a pure comparative negligence system, a contributorily negligent plaintiff is allowed to recover a percentage of her damages. The plaintiff’s damages are reduced according to her proportionate share of the fault. Thus, the motorcyclist can recover 70% of her total of $100,000 in damages because she was 30% at fault, leaving her with a recovery of $70,000. (A) is incorrect because it fails to reflect the reduction in damages required under comparative negligence. Because the motorcyclist was 30% negligent, she cannot recover the entire $100,000. (C) is incorrect because it is derived from an initial reduction of damages by the amount of the insurance payments ($100,000 minus $20,000, leaving $80,000). This $80,000 figure is then reduced by the 30% negligence of the motorcyclist, leaving an amount of $56,000. However, as a general rule, damages are not reduced or mitigated by reason of benefits received by the plaintiff from other sources, such as health insurance. Thus, the 30% reduction is made from the figure of $100,000, not from $80,000. Similarly, (D) is incorrect because it is derived from a reduction of the $70,000 proportionate recovery by the $20,000 insurance payment. As noted above, the insurance payments are not allowed to reduce damages. Therefore, the $20,000 paid by the motorcyclist’s insurance company will not reduce the $70,000 in damages to which she is entitled.