Damages
Guideposts established in BMW v. Gore
1. Degree of reprehensibility of defendant's misconduct
2. Disparity between actual or potential harm suffered by plaintiff & punitive damages award, AND
3. Difference between punitive damages awarded by the jury & civil penalties authorized/imposed in comparable cases
What is a right of action to decedent's estate based on the survival of decedent's personal injury claim or to those who want to sue decedent's estate?
Survival statute
A legal defense independent of any element of the plaintiff's cause of action is called an _______ defense.
Affirmative
What is the standard of proof required for contributory negligence and which party holds the burden of proof?
Preponderance of the evidence, defendant
Express, Implied (primary + secondary)
When do courts consider punitive damages grossly excessive?
When the damages exceed a single-digit ratio between punitive and compensatory damages.
Beneficiaries
Which party holds the burden of proof in establishing contributory negligence?
Defendant
Pure comparative negligence vs. modified comparative negligence
Pure - direct correlation between liability & damages recovered
Modified - plaintiff must meet certain conditions to recover damages which often aren't to exceed plaintiff's percentage of responsibility
Which type of assumption of the risk arises when one party gives explicit written or oral permission to release the other party from an obligation of reasonable care?
(Ex: ski lift tickets, permission slips to play high school football, health club contracts)
Express
Pecuniary vs. non-pecuniary damages
Pecuniary damages are objectively calculated money damages (economic, harm to property, earnings losses) & non-pecuniary damages are subjectively calculated (pain & suffering, emotional distress)
True or false: the statute of limitations on death claims runs from the date of death, not the date of accident.
True
True or false: Defendant has to prove he owed the plaintiff a duty when establishing contributory negligence.
False - it's assumed that the plaintiff has a duty to behave reasonably toward himself.
Do courts use comparative or contributory negligence more?
Comparative (more equitable)
Under express assumption of the risk, what is required of the written or oral permission granted by one party to the other?
The statement (written or oral) must be clear & unambiguous.
Statement must comport with public policy.
Mutual assent
Terms must be directly applicable to defendant's misconduct
What do wrongful death damages measure?
The economic loss suffered because of decedent's death, a loss of support, services, or society, and replacement labor costs.
Before the defense of contributory negligence can be used, the plaintiff must first establish what?
A prima facie case of negligence against the defendant.
Comparative negligence limits the plaintiff's recovery by the ____ of plaintiff's own negligence in causing the incident.
Percentage
Under implied assumption of the risk, is there an express agreement?
No
If contributory negligence is established by the defendant, how does it affect the plaintiff's recovery?
Recovery is totally barred
What is the defendant's argument under implied assumption of the risk?
D argues P can't satisfy a prima facie case of negligence against him because there was an inherent risk in P's activity, so D had no duty or limited duty to protect P.