⚡ 10-Second Rule
You only win a negligence case if you got actually hurt — a scary near-miss wins zero dollars.
🧒 ELI-10 Scene
Dan backs his car out of the driveway way too fast. He misses Rosa's parked bike by an inch. Rosa demands twenty dollars anyway. Rosa's mom asks one question: "What got broken?" Nothing did. So Dan owes nothing. The next week, Dan actually crushes the bike's front wheel. Now Rosa can ask for exactly what a new wheel costs. Not a prize. Not extra for the scare. Just the money that puts the bike back the way it was.
⚖️ Actual Rule
Actual harm is an element of the negligence cause of action, so a plaintiff who proves duty, breach, and causation but no injury recovers nothing — nominal damages are reserved for torts actionable without proof of harm, which negligence is not (see Restatement (Second) of Torts § 907). Compensatory damages aim to restore the plaintiff to the pre-injury position: for personal injury, past and future medical expenses, lost earnings and diminished earning capacity, and pain and suffering (see Restatement (Second) of Torts § 924); for damaged property, the difference in market value before and after the harm, or reasonable repair cost plus loss of use where repair is appropriate (see Restatement (Second) of Torts § 928). The defendant takes the plaintiff as found: where negligently inflicted harm is magnified by the plaintiff's preexisting physical frailty, the defendant is liable for the full extent of the harm even if its scope was unforeseeable — the "eggshell skull" principle (see Restatement (Second) of Torts § 461). The avoidable-consequences doctrine bars recovery for harm the plaintiff could have avoided through reasonable post-injury care, such as seeking medical treatment (see Restatement (Second) of Torts § 918). Under the collateral source rule, payments the plaintiff receives from sources independent of the defendant — insurance, employment benefits, gifts — do not reduce the defendant's liability (see Restatement (Second) of Torts § 920A(2)). Punitive damages require conduct beyond ordinary negligence — outrageous conduct showing evil motive or reckless indifference to others' rights (see Restatement (Second) of Torts § 908) — and due process caps their size: in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 425 (2003), the Supreme Court held that "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." For negligent infliction of emotional distress, the majority rule permits recovery by a plaintiff within the zone of danger who suffers distress from fear for personal safety, with many courts requiring resulting physical manifestations, and by a bystander who is closely related to the victim, present at the scene, and contemporaneously perceives the injury (see Restatement (Third) of Torts: Liability for Physical and Emotional Harm §§ 47–48). [NJ-VARIANT: flagged for future Eli Explains NJ Law module]
ELI-10 translation: prove real harm first. Then the money covers everything the harm cost — bills, lost pay, and pain. Punishment money is rare.
🔍 Ask These Questions
- Did the plaintiff suffer actual harm — bodily injury, property damage, or money loss? (No real hurt means the whole case fails, full stop.)
- What is the measure: medical bills, lost pay, and pain for bodies; value drop or repair cost for things? (Count what fixing the person or the thing really costs.)
- Was the harm worse because of a fragile plaintiff? Defendant still pays for all of it. (You break a thin glass, you pay for the whole glass.)
- Did the plaintiff fail to reasonably limit the harm afterward, like skipping the doctor? (Money stops for damage the hurt person could easily have prevented.)
- Did insurance or another outside source pay the plaintiff? Ignore it — no discount for the defendant. (A gift from grandma doesn't lower what the wrongdoer owes.)
- Is the conduct bad enough for punitive damages — reckless indifference, not mere carelessness — within due-process ratio limits? (Punishment money needs truly awful behavior, and courts keep it small.)
- If the claim is emotional distress only, is the plaintiff in the zone of danger or a qualifying bystander? (Fear alone counts only for people nearly hit or close family watching.)
⚠️ Bar Trap
Exam language: Examiners write a fact pattern with a flagrant breach and clear causation but no actual injury, then offer an answer awarding nominal damages "because the defendant's negligence is established." Nominal damages are unavailable in negligence; damage is an element of the prima facie case. A companion trap awards punitive damages for ordinary carelessness, which never suffices.
ELI-10: Negligence is not like trespass. Careless behavior with zero harm wins zero dollars — not even one symbolic dollar. And punishment money needs wild, reckless conduct, never plain sloppiness.
🧪 Question
A landscaper negligently left a heavy stone planter balanced on the edge of a retaining wall above a public sidewalk. The planter fell and struck a pedestrian on the shoulder. Because the pedestrian suffered from a rare bone disorder that made her skeleton unusually brittle, the impact shattered her shoulder and collarbone, requiring two surgeries; a person of ordinary health would have suffered only bruising. The pedestrian's health insurer paid $90,000 of her $120,000 in medical expenses. She sued the landscaper for negligence, and the jury found the landscaper liable. The landscaper argues that damages should be limited to the harm a person of ordinary health would have suffered, reduced by the insurer's payments.
What is the proper measure of the pedestrian's recovery?
(A) The full extent of her injuries, without reduction for the insurer's payments. (B) The full extent of her injuries, reduced by the $90,000 the insurer paid. (C) Only the harm an ordinarily healthy person would have suffered, because her brittle bones were unforeseeable. (D) Only the harm an ordinarily healthy person would have suffered, reduced by the insurer's payments.
Answer: (A). Under the eggshell-skull rule, the landscaper takes the pedestrian as he finds her and is liable for the full, unforeseeably severe harm; under the collateral source rule, payments from her own insurer — a source independent of the defendant — do not reduce the award.
💡 Why the Wrong Answers Are Wrong
- (B) violates the collateral source rule; the pedestrian's own insurance is independent of the defendant and cannot offset his liability.
- (C) confuses proximate-cause foreseeability of the type of harm with the extent of harm; the eggshell rule makes unforeseeable extent fully compensable.
- (D) stacks both errors — it caps damages at the ordinary-person level and improperly credits the insurance payments.
- ELI-10: The misconception is thinking a fragile victim or a helpful insurer shrinks the bill. Neither does. The careless person pays for all the harm, with no insurance discount.
