Black-letter propositions
- 01
Personal-injury damages include reasonable medical expense, lost earning capacity, pain and suffering, and future loss proved with reasonable certainty.
- 02
The plaintiff must mitigate reasonably but need not undergo unduly risky treatment.
- 03
Pure comparative fault reduces recovery by percentage; modified systems bar recovery at the stated threshold; contributory negligence can bar subject to exceptions.
- 04
Express assumption of risk requires a valid agreement covering the risk and is limited by public policy.
- 05
Implied assumption often merges with comparative fault and requires knowing voluntary encounter with a specific risk.
- 06
Collateral-source and avoidable-consequences rules apply as specified.
Use this attack sequence under time
Frame the issue
List each past and future loss.
Resolve the next checkpoint
Prove cause and certainty.
Resolve the next checkpoint
Identify mitigation opportunity.
Resolve the next checkpoint
Choose fault regime and allocate percentages.
Finish the conclusion
Analyze express and implied risk separately.
Common wrong turns
- Eggshell damages differ from avoidable consequences.
- General awareness of danger is not necessarily informed assumption of the specific risk.
- A release may not cover gross or intentional wrongdoing.
Worked example
A plaintiff unreasonably refuses a safe routine procedure that would prevent half of future loss.
The plaintiff can recover initial harm but not the portion reasonably avoidable through the procedure, assuming safety and efficacy are proven.
Practice this topic
Damages
Cornell says compensatory damages, also called actual damages, are equivalent to the loss a party suffered, based on the proven harm, and do not include punitive damages, which may be awarded when the defendant's actions are especially reckless or malicious. If a right was violated but no harm occurred, a court may grant nominal damages. The mitigation doctrine, also called avoidable consequences, prevents recovery of damages that could have been avoided through reasonable efforts.
Cornell notes the duty to mitigate is traditionally used in tort and contract law.
Plaintiff's fault
Comparative negligence reduces recovery according to the degree of negligence each party contributed. If the defendant is 60 percent at fault and the plaintiff 40 percent, the plaintiff recovers 60 percent of the damages. Pure comparative fault lets the plaintiff recover even at 99 percent fault, while modified systems bar recovery at 50 or 51 percent, which is the majority approach.
Under contributory negligence a plaintiff who was at all negligent cannot recover. Assumption of risk was formerly an affirmative defense but has been subsumed by contributory and comparative negligence in most jurisdictions.
Frequently asked questions
What is the controlling rule for compensatory damages, mitigation, comparative fault, and assumption of risk?+
Tort damages compensate caused and reasonably certain loss, reduced by avoidable consequences and the jurisdiction's comparative-fault and risk rules.
How should I analyze compensatory damages, mitigation, comparative fault, and assumption of risk on the bar exam?+
List each past and future loss. Prove cause and certainty. Identify mitigation opportunity. Choose fault regime and allocate percentages. Analyze express and implied risk separately.
What are compensatory damages?+
Damages equivalent to the loss the party suffered, also called actual damages, and they do not include punitive damages, according to Cornell.
What is the mitigation doctrine?+
A rule preventing recovery of damages that could have been avoided through reasonable efforts, also called avoidable consequences.
How does comparative negligence work?+
The court assigns a percentage of fault to each party and reduces the plaintiff's recovery accordingly, per Cornell.
What is the difference between pure and modified comparative negligence?+
Pure lets the plaintiff recover even at 99 percent fault, while modified rules bar recovery at 50 or 51 percent or more.
What happened to assumption of risk?+
It has been subsumed by contributory and comparative negligence in most jurisdictions, according to Cornell, though it was formerly an affirmative defense.