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TORTS - WEBER
FINAL STUDYING
| Question | Answer |
|---|---|
| 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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