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TORTS - WEBER

FINAL STUDYING

QuestionAnswer
PARENTAL Immunity Almost gone now. Parents used to have full immunity to parents for harm children incurred due to negligence.
Justifications for Parental Immunity domestic tranquility, fraud and collusion; deplete family resources# parent could benefit from child's death# interference with parental authority
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.
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.
Broadbent Approach Reasonable Parent # was parent's conduct that of a reasonable and prudent parent?
3rd Party Parent Liability Most states allow suits to be brought against a parent by a 3rd party for negligence
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
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
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.
Concerns of recovery for Emotional Harm 1. Crushing Liability / # of ppl able to recover 2. Fraud 3. Adequacy of Incentives
Impact Rule Can only recover for EH if you suffered actual physical impact. FL.
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
Falzone Wife allowed to recover when D ran over husband and she feared for her own physical harm. EH led to physical illness.
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.
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.
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.
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.
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
HIV Cases and Recovery for EH Courts generally allow recovery for fear of HIV transmission or false information on HIV transmission.
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
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
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.
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
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
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
Direct v. Indirect Harm Some jurisdictions allow recover for emotional distress based on directness of P’s relation to the negligent conduct.
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
Pure Economic Harm, Generally If P is injured, can recover economic loss
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.
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
Economic Harm Issues Involving Attorneys Meeting Filing Deadlines Making strategic choices Recommending Settlements Criminal Cases - only if crim was not guilty Emotional Distress - Unusual
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
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.
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
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
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.
Wrongful Life Courts don't like to recognize these claims b/c life would have to be compared to non-existence.
CAUSATION - Importance Causal Relationship MUST EXIST b/n D's conduct and harm to P.
Causation - Requirements 1. D must have caused the injury IN FACT. 2. D must have been the proximate cause of the injury.
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
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
Substantial Factor Test 1. Multiple potential causes of injury. 2. Burden of proof is on D to prove it was not a substantial factor.
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.
Alternative Liability Doctrine for Causation Multiple D's must prove it was the other defendant's breach of duty that caused the harm
4 Elements of a Prima Facie Case Duty, Breach, Causation, Injury (Damages)
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.
Balancing Test (Learned Hand) Burden on D to avoid risk against the probability and intensity of the harm
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
Created by: elizpowell
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