FINAL STUDYING
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| PARENTAL Immunity | Almost gone now. Parents used to have full immunity to parents for harm children incurred due to negligence.
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| Justifications for Parental Immunity | domestic tranquility, fraud and collusion; deplete family resources# parent could benefit from child's death# interference with parental authority
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| Arguments against Parental Immunity | Injured child w/no immunity is more upsetting to family#
there's always a possibility of fraud
chance of parent inheriting is remote
suits won't be brought up w/o insurance so no depletion.
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| Goller Approach | Parent has no immunity except:#
when negligent act involves exercise of parental authority
OR when it involves exercise of ordinary parental discretion with respect to provision of food, clothing, housing, medical, dental, etc.
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| Broadbent Approach | Reasonable Parent # was parent's conduct that of a reasonable and prudent parent?
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| 3rd Party Parent Liability | Most states allow suits to be brought against a parent by a 3rd party for negligence
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| Policy Considerations Involving Parental Immunity | Role of Insurance - suits brought to get insurance money# insurance co's bar from policy#
Risk of Fraud - always there
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| Difference between CAUSE IN FACT and PROXIMATE CAUSE | CIF - Actual Cause - But-for or Substantial Factor
Proximate Cause - Policy thing limiting the scope of liability, determined by foreseeability of risks and consequences. Was injury w/in the scope of risk?
*No proximate cause w/o actual cause
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| Emotional Harm from Direct Acts General Rule | Can sue for EH if there is a physical injury (Ct.s have been reluctant to award recovery w/out physical injury)
Rule is changing and more recovery is allowed. P must show SEVERE emotional harm.
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| Concerns of recovery for Emotional Harm | 1. Crushing Liability / # of ppl able to recover
2. Fraud
3. Adequacy of Incentives
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| Impact Rule | Can only recover for EH if you suffered actual physical impact. FL.
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| Zone of Danger | Allows recover for EH w/o impact as long as P was in the ZONE of foreseeable danger of the accident.
P must prove:
1. immediate FEAR of physical harm AND
2. Causal Link
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| Falzone | Wife allowed to recover when D ran over husband and she feared for her own physical harm. EH led to physical illness.
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| Time/ Foreseeability Approach to EH | Most broad and plaintiff-friendly approach
Looks at foreseeability of the harm and the length of the existence of fear.
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| Survival Statutes (Emotional Harm) | A decendent's estate can proceed w/claims that decendent would have brought if he hadn't died. Cts. tend to allow if window of fear is definite.
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| Recovery for Fear of Disease (Asbestos) | Courts are reluctant to allow recovery. Rules:
1. Contact that is just exposure but no proof of infection isn't w/in the zone of danger.
2. If physical impact put you in immediate risk of physical harm, then you can recover for EH.
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| Policy Reasons for Limiting Recover For Fear of Disease | 1. Potential Flood of Trivial Claims, especially w/ amount of asbestos exposure in U.S.
*Plaintiff should try to make their case specific to eliminate fear of limitless liability.
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| Potter v. Firestone - Recovery ALLOWED for fear of cancer when | 1. D's negligent breach of duty causes P exposure to toxic substance which threatens cancer.
2. fear stems from medical knowledge that cancer is more likely than not to develop.
3. ingestion or exposure was of such a magnitude that the fear is reasonabl
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| HIV Cases and Recovery for EH | Courts generally allow recovery for fear of HIV transmission or false information on HIV transmission.
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| Dead Body Cases and Emotional Harm | Allow recovery for mishandled corpses and botched funerals because
1. foreseeable that negligence would cause emotional harm to deceased's family
2. reasonable person test
3. severity of negligence
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| Bystander Cases - Pure Emotional Harm from Indirect Acts (No Physical Injury) | Traditionally - no recovery w/o danger physically impact.
Now - 4 Part Test - Portee-elevator
1. death or serious injury caused by D's neg.
2. close family relationship
3. observation of death or injury at the scene
4. resulting severe emotional dist
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| CA Bystander for Emotional Harm | 1. recovery limited to relatives in household or immediate family.
2. viewing consequences isn't enough; distress has to be beyond what would be anticipated from a disinterested witness.
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| When you THINK harm is caused to a loved one | generally allow when the thought would have caused emotional distress in a reasonable person
Ex: Mom thought son was killed in car accident
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| Unmarried Couples | Elden v. Sheldon - recovery not allowed for death of cohabitating girl friend b/c
1. ct has interest in marriage
2. burden on ct to decide if it was a stable, viable relationship - hard to draw the line
3. need to limit to whom D owes Duty of Care
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| ZONE of DANGER Approach | limits recovery to one who is threatened with harm b/c of D's negligence AND
experienced emotional distress from viewing death/ physical injury of immediate family member
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| Direct v. Indirect Harm | Some jurisdictions allow recover for emotional distress based on directness of P’s relation to the negligent conduct.
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| Negligent Interference with Consortium | Spouse will usually have a claim against negligent party for loss of consortium w/ spouse. BUT NOT FOR
Unmarried Partners
Spouse caused own loss of consortium
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| Pure Economic Harm, Generally | If P is injured, can recover economic loss
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| Economic Harm Tests | Foreseeability - acct liable to anyone who he could reasonably foresee would obtain and rely on his work.
Near-Privity - limits acct's liability for to those who he is in privity or close privity with.
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| Supplying False Information Liable for Pecuniary Loss WHEN (Restatement) | limited to loss suffered by person acct INTENDED to supply info to
AND one who he INTENDED to influence w/ the information
Foreseeable that person would get and rely b/c that was INTENT of accountant
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| Economic Harm Issues Involving Attorneys | Meeting Filing Deadlines
Making strategic choices
Recommending Settlements
Criminal Cases - only if crim was not guilty
Emotional Distress - Unusual
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| Economic Harm from Accidental Occurrence | NO DUTY for economic harm alone from accident - must have physical injury or property injury
535 Madison - no recovery unless building damaged
Koch - no damages for blackout w/o prop. damage
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| NJ Approach to Economic Harm from Accidental Occurrence | the more foreseeable the injury, the more likely the liability/recovery. DOES ALLOW RECOVERY W/O PROPERTY DAMAGE.
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| Policy Concerns of Economic Harm Recovery | Cts like to deny recovery in situations when parties could have dealt with potential eco harm through CONTRACT LAW or requiring INSURANCE
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| Wrongful Birth | Suits by Parents; 3 approaches
1. Limited Recovery for Ecomonic Losses - Med expenses and loss of wages.
2. Full recovery - above + cost of raising
3. Full recovery w/ offset - above offset w/ benefit ct assumes parents experience by having the child
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| Healthy v. NonHealthy Babies | Reluctant to have Dr. pay for joy of having a healthy baby.
Some cts have awarded for economic costs of raising a child.
Unhealthy - recovery for excess costs of birth defects.
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| Wrongful Life | Courts don't like to recognize these claims b/c life would have to be compared to non-existence.
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| CAUSATION - Importance | Causal Relationship MUST EXIST b/n D's conduct and harm to P.
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| Causation - Requirements | 1. D must have caused the injury IN FACT.
2. D must have been the proximate cause of the injury.
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| 2 Tests of Cause In Fact | But For - X would not have occurred but for Y
P has burden of proving actual cause to a more likely than not standard ? for jury
Substantial Factor - Multiple causative factors
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| But For | 1. cause more likely than not
2. can be a reasonable inference
3. Use but for b/c no reason to place liability on D if injury would have happened any way.
If BUT FOR is ESTABLISHED - MOVE on to PC
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| Substantial Factor Test | 1. Multiple potential causes of injury.
2. Burden of proof is on D to prove it was not a substantial factor.
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| Substantial Factor Test - P has to prove | 1. D's negligent act INCREASED the LIKELIHOOD of a specific injury and INJURY ACTUALLY HAPPENED
2. Negligence was CAUSALLY LINKED to the harm.
3. SOC was adopted to prevent the very TYPE of HARM that P suffered.
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| Alternative Liability Doctrine for Causation | Multiple D's must prove it was the other defendant's breach of duty that caused the harm
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| 4 Elements of a Prima Facie Case | Duty, Breach, Causation, Injury (Damages)
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| Negligence Per Se - 3 Elements | 1. Criminal Penalty
2. Statute design to prevent type of harm suffered by plaintiff.
3. P must be a member of the class that the statute was intended to protect.
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| Balancing Test (Learned Hand) | Burden on D to avoid risk against the probability and intensity of the harm
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| When there is a duty to act affirmatively for the benefit of others | 1. D caused the danger (non-negligently)
2. Special relationship
3. Begin to act
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