Negligence Flashcards
(135 cards)
1
Q
What is negligence?
A
When a reasonable person would have foreseen the harm?
2
Q
What are the elements of Negligence?
A
Duty
Breach
Cause-in-Fact
Proximate Cause
Damage
3
Q
Does negligence factor in a person’s characteristics?
A
The reasonable person standard factors in the defendant’s physical, but not mental, limitations.
4
Q
Does negligence factor in a person’s superior abilities?
A
Negligence does factor in a person’s superior abilities (e.g., experience or knowledge).
5
Q
Are children held to the reasonable standard of care?
A
No, children are held to the standard of care of:
A reasonable child of similar age, experience, and intelligence in like circumstances.
6
Q
What is the reasonable person standard of care?
A
A standard of care based on how a reasonable person would act in like circumstances.
7
Q
Are there exceptions to children being held to the Child Standard of Care?
A
Children are generally only held to the adult standard of care when doing adult activities that are inherently dangerous (e.g., driving motorized vehicles or using firearms).
8
Q
Does the Doctrine of Contributory Negligence bar recovery?
A
The Doctrine of Contributory Negligence states that if the plaintiff was also negligent, then the plaintiff cannot recover.
This is obsolete in most jurisdictions.
9
Q
What is Negligence Per Se?
A
Negligence Per Se holds that an unexcused violation of a statute is negligence in and of itself.
10
Q
Is Negligence Per Se a majority doctrine?
A
Negligence Per Se is a majority doctrine with only twelve states holding that violation of statutes can potentially be evidence of negligence and not dispositive evidence of negligence on its own; it is also very popular with over 8,000 cases covering the topic.
11
Q
What kinds of statutes can Negligence Per Se be applied to?
A
Federal or State statutes and even ordnances or regulations.
However, a few states hold that Negligence Per Se doctrine don’t treat statutes and regulations the same (instead, they treat regulations as only evidence of the possibility of negligence, not as dispositive of negligence in and of themselves).
12
Q
Requirements of Negligence Per Se
A
- Statute clearly defines the required standard of conduct
If the statute doesn’t tell the defendant what to do in the moment, it will generally be rejected.
Even then, it may be rejected if the Court finds the defendant has no duty.
- The statute was intended to prevent the type of harm caused
If the statute is not intended to prevent the type of harm caused, it will not serve as a basis for negligence per se.
- Plaintiff is a member of the class of persons the statute was designed to protect
The statute must be intended to protect a specific sub-group of the population to serve as a basis for negligence per se.
If violating the statute did not increase the risk of harm to the plaintiff, then it is very difficult to argue negligence per se.
- The violation was the proximate cause of the injury.
The court wants to see that the defendant’s violation was in fact the cause of the injury.
13
Q
Can compliance with a statute of determinative of due care in some cases?
A
Yes, compliance with a statute can be determinative of due care in the case of federal statutes that Congress intended to be determinative of due care (e.g., compliance with a federal speed limit for trains means that trains going within the speed limit can be assumed to be acting with due care).
13
Q
Does compliance with a statute always shield the defendant from negligence?
A
No, mere compliance with a statute is not evidence of absence of negligence.
14
Q
What is the Breach element of Negligence?
A
Breach is conduct that imposes unreasonable risks of harm. The risk of harm is unreasonable when a reasonable and prudent person would foresee that harm might result and would avoid the risk of harm.
15
Q
What are the doctrinal hooks of breach?
A
- Whether a reasonable person would have foreseen the risk
- Whether a reasonable person would have acted
16
Q
What does breach require?
A
Breach requires acting unreasonably when there is a risk of harm to a reasonable person.
17
Q
What is the Hand formula?
A
B < PL = Negligence (Breach specifically)
B = Burden of Adequate Precaution
P = Probability of the Risk
L = Gravity of the Resulting Injury
18
Q
What is comparative fault?
A
A doctrine that limits the plaintiff’s recovery based on the percentage they were negligent in causing their own harm.
18
Q
Where does the Hand formula come from?
A
United States v. Carroll Towing Co.
19
Q
What is contribution in relation to joint and several liability?
A
When one defendant pays more than their share of liability to the plaintiff, they can go against other defendants to recoup the difference in what they paid and what their share is.
19
Q
What does it mean for defendants to be jointly and severally liability?
A
Plaintiffs can go after any defendant and recover all of the damages.
20
Q
What is several liability?
A
Defendant can only recover the percentage of damages from each defendant that is owed by that defendant.
21
Q
What is sufficiency of proof in regards to Breach?
A
In order to prove breach, the mere fact that harm has been suffered is not sufficient to prove breach. You must show how the defendant failed to execute their duty of care to the plaintiff.
22
Difference between Lay Witness and Expert Witness testimony in regards to Breach?
Lay Witness
--Testimony must be based on perception of an event.
--Must be helpful to jury.
--Opinions and inferences rarely allowed (usually only proper when the witness is an expert and is qualified as an expert).
Expert Witness
--Can give opinions and make inferences within field of expertise.
--Even a properly qualified expert cannot proclaim the defendant negligent; that is the privilege of the jury.
--Expert Witnesses are often compelling and they are also often conflicting.
23
Does violation of internal policies mean that the company has breached their duty of care?
Internal rules, policies, practices, and procedures are admissible in court, but they are not the standard of care.
Failing to meet an internal policy is not failing to meet the legally recognized standard of care.
24
Is non-compliance with an industry safety custom dispositive of negligence?
No, non-compliance with an industry safety custom is not dispositive of negligence, but it can be used as evidence that negligence could have occurred.
EXCEPTION: Medical Malpractice is based on custom and deviation from custom is evidence of negligence in these cases.
25
What is Res Ipsa Loquitor?
"The thing speaks for itself" in Latin and it refers to an event that would not ordinarily occur without some kind of negligence (e.g., a barrel falling out of a window).
26
Do courts look at the plaintiff's conduct when evaluating a Res Ipsa claim?
The court will look at what the plaintiff has done and not done in order to make the inference of negligence stronger when determining whether to rule based on Res Ipsa Loquitor or not.
27
Do courts generally give Res Ipsa Loquitur rulings if they have direct evidence of negligence?
Only if the direct evidence is an absolute proof that negligence occurred do courts not give a Res Ipsa Loquitur instruction.
28
What is required to satisfy the Negligence element of Harm?
The plaintiff must prove that there is some type of injury.
29
Is increased risk of harm an injury that satisfies the Negligence element of Damage?
The increased risk of harm is not injury and thus cannot be recovered for.
30
Does pure emotional distress satisfy the Negligence element of Damage?
Pure emotional distress is not considered injury and thus does not satisfy this element even though you can get pain & suffering for other Damage.
31
What is the Cause-in-Fact element of Negligence?
Cause-in-Fact is the element that shows that were it not for the defendant's conduct, the plaintiff would not have suffered injury.
This can be shown with the But-for Test or the Substantial Factor test.
32
What is the But-for Test?
The idea behind But-for Causation is that the defendant's conduct is a cause of harm, because the harm would not have occurred but-for the defendant's conduct.
Example:
But-for John's negligent driving, Sally would not have been injured.
33
Elements of a But-for Test
1. The defendant needs to be a but-for cause
2. The defendant must also be a negligent but-for cause.
34
Is Cause-in-Fact a Judge or Jury Question?
In most cases, Cause-in-Fact is a jury question.
35
What are some ways to establish causation?
Expert Testimony
Common Knowledge
Use circumstantial evidence (e.g., eliminate a series of other possible causes)
Res Ipsa Loquitur
36
When does Joint and Several Liability apply?
Joint and Several Liability generally applies when:
There is an indivisible injury
There is a concerted action
A creates a risk of harm by B (e.g., A runs over the plaintiff, leaving them unconscious in the street. B is driving after this and doesn't see the plaintiff and runs over the plaintiff, killing them. Ais liable for both leaving the plaintiff in the street and for B running over the plaintiff, but B is only liable for running over the plaintiff).
A is vicariously liable for B's acts.
37
If defendants are jointly and severally liable, how much can any one defendant have to pay?
Each defendant is fully liable for plaintiff's injury and thus may have to pay 100% of it.
38
Can plaintiff collect more than a full recovery if the defendants are jointly and severally liable?
No, the plaintiff is limited to only collecting a full recovery.
39
When is it a good idea to use the substantial factor test?
When the but-for test seems to reach the wrong result, the substantial factor is a good solution.
Simultaneous/both negligent = liable (no liability under But-for).
--No liability under But-for test, because But-for test requires showing that but-for the defendant's negligent conduct, the plaintiff wouldn't have suffered injury. If the two parties act simultaneously, then the plaintiff still would have suffered injury and thus would not be able to recover.
Simultaneous/one negligent = liable (no liability under But-for)
--No liability under But-for Test for reason listed above, but because the negligent party is still a substantial factor in the harm suffered by the plaintiff, they could still be liable.
Sequential forces/one or both negligent = liable if defendant's negligence is actual cause of harm (no liability under But-for)
--No liability under But-for for reasons listed above, but if the negligent acts are committed first, then there would be liability under the Substantial Factor test because it would be the Cause-in-Fact of the plaintiff's injury.
40
Will defendants be jointly and severally liable for all injuries suffered by the plaintiff if there is loss of causal certainty?
If there is a loss of causal certainty, the burden of proof shifts to the defendants to prove that they did not cause the harm.
41
What is the Proximate Cause element of Negligence?
The Proximate Cause element of Negligence is Legal Cause and not the same as Actual Cause or Cause-in-Fact.
It requires the harm to have been foreseeable.
42
What is Loss of a Chance Doctrine?
Loss of a Chance Doctrine allows recovery for decreased chance of survival in Medical Malpractice cases.
43
Is Loss of a Chance Doctrine a majority doctrine?
It is a majority doctrine for Medical Malpractice, but there are a number of jurisdictions (roughly 13-14) that don't accept the doctrine at all.
44
What is the Risk Standard?
"An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious."
EXAMPLE: Bob leaves matches out around his child. His child is a pyromaniac. He cuts the tips off, puts them in a brew, and drinks the brew, getting sick.
This is not foreseeable when Bob negligently left the matches out.
45
What is the Risk Rule?
Is the harm to the plaintiff within the scope of the risk that made the defendant negligent in the first place?
46
For Proximate Cause, does the manner of harm need to be foreseeable?
The majority of jurisdictions hold that a reasonable person need not foresee the manner of harm, only the general kind of harm.
47
For Proximate Cause, does the extent of the harm need to be foreseeable?
The majority of jurisdictions do not require the extent of harm be foreseeable (see Thin Skull Plaintiff rule).
48
For Proximate Cause, is the type of harm important?
Yes, the type of harm (e.g., injury to a specific body part) suffered is very important for Proximate Cause.
49
For Proximate Cause, is the class of plaintiff important?
Yes, the class of plaintiff is important.
50
What is the Rescue Doctrine?
Someone who is hurt can generally recover from the defendant whose negligence towards another or towards himself prompts the rescue.
51
How do you do a Proximate Cause Analysis?
Proximate Cause Analysis
Was the plaintiff foreseeable? Was the plaintiff within the class of persons who were foreseeably threatened by defendant’s conduct?
Was the type of harm foreseeable? Was the harm Plaintiff suffered the type of harm that made defendant’s conduct negligent to begin with?
Was the way in which the plaintiff was harmed within the scope of foreseeable consequences? Or was it merely that the manner of the harm was unforeseeable?
Was it merely that the extent of the harm was unforeseeable?
52
What is an intervening cause?
When a third party causes harm, but the harm caused does not break proximate cause.
53
What is a superseding cause?
When a third party causes harm the harm caused breaks proximate cause.
54
What is Coping?
Coping is when the plaintiff is injured trying to avoid a risk that the defendant created.
55
What is Second Injury?
If the plaintiff goes and gets medical treatment, because of what the defendant has done, and the medical treatment is negligent, the original tortfeasor will be liable for both their own and the doctor's negligence.
56
Does Second Injury apply to injuries suffered during the transportation to medical care?
Second Injury has been extended to include injuries suffered during the transportation to medical care.
57
What is the difference between Contributory Negligence and Comparative Fault?
Contributory Negligence bars recovery completely if the plaintiff was also negligent in how they became injured.
Comparative Fault limits recovery by the plaintiff by the extent they are found to have negligently contributed to their injury.
58
What is Pure Comparative Fault (NY)?
Plaintiff's failure to exercise reasonable care will reduce recovery, but not bar it.
EXAMPLE: A plaintiff who is 75% negligent can still recover 25% from the defendant.
59
What is Modified Comparative Fault (WI)?
Plaintiff's failure to exercise reasonable care will bar recovery if their negligence is greater than the defendant's.
EXAMPLE: A plaintiff who is up to 50% negligent can still recover up the difference from the defendant.
If they are more than 50% negligent (and thus more negligent than the defendant), then recovery will be barred.
60
What is Modified Comparative Fault (ND)?
Plaintiff must have less fault than the defendant to recover or else they are barred from recovery.
EXAMPLE: A plaintiff who is up to 49% negligent can recover the difference from the defendant. If they are 50% negligent (and therefore equally negligent) or more (and therefore more negligent), they cannot recover.
61
What is the Blindfold Rule?
The Blindfold Rule is a minority rule where the judge doesn't allow the jury to know the implications of their allocation of fault.
62
When does Comparative Fault not apply??
When the defendant has a duty to use care to protect the plaintiff against the plaintiff's own contributory fault (this also bars the use of contributory fault as a defense).
When policy dictates.
When the plaintiff is a Rescuer.
When the Defendant has reckless or intentional misconduct.
63
What is the Assumption of the Risk defense?
The Assumption of the Risk Defense asserts that the plaintiff consented to the risks by participating in the activity.
64
Is Assumption of the Risk a majority doctrine?
No, most states have done away with the Assumption of the Risk defense.
65
What is express assumption of the risk?
Express assumption of the risk is essentially somebody saying, “I am going to release you from an obligation to use due care.”
This can be oral or written and is basically a waiver.
66
Can hospitals and other public goods use express assumption of the risk to waive liability?
Express assumption of the risk is not permissible when the contract relates to a public good.
67
What are the Tunkl Factors?
The business is of a type generally thought suitable for public regulation.
The defendant’s service is of great importance to the public.
The defendant is holding himself out as performing the service generally for the public.
The need for the service and the economic setting give the defendant a decisive advantage of bargaining strength.
The person is under the control of the defendant, unable to take self-protection measures.
68
What is Implied Assumption of the Risk?
Implied Assumption of the Risk applies when a person knowingly participates in an activity that they know to be dangerous.
69
What is primary assumption of the risk?
Primary assumption of the risk is when the defendant had no duty of care to the plaintiff.
70
What is secondary assumption of the risk?
Secondary assumption of the risk is when the defendant had a duty of care to the plaintiff that was breached.
71
How long are statutes of limitations for Torts?
Generally 1-3 years.
72
How to toll the Statute of Limitations?
Filing and serving the complaint is generally the process used to toll the Statute of Limitations.
73
Do negotiations toll the Statute of Limitations?
Negotiations never toll the Statute of Limitations unless there is some kind of fraud going on, therefore you should always file and then negotiate, because you can always dismiss your claim.
74
When does the Statute of Limitations usually begin to run?
Statute of Limitations begins to run when the plaintiff discovers, or a reasonably prudent person would have discovered the injury (and that the defendant had role in the injury and the wrongful nature of the defendant's conduct).
75
Can you toll for disability?
Minors injured while underage may toll until they reach the age of majority and for a time of period thereafter (duration varies by state).
Mental incapacity tolls for a period of time, but not until the disability is resolved.
Repressed Memory could toll, but there is still debate about whether or not it's real.
Equitable Estoppel/Fraudulent Concealment can toll the case.
76
What are limitations not based on accrual?
Notice Bar: Before a plaintiff can sue, the plaintiff must give notice of a claim. Giving notice does not toll the Statute of Limitations.
--This usually occurs regarding cases against the Government.
Statute of Ultimate Repose: This can bar a claim before the claim even exists.
77
What standard of care applies to Common Carriers (e.g., taxis or other people receiving payment for rides)?
Reasonable care
78
What standard of care applies to Host-Drivers (e.g., people giving their friends a lift or otherwise not receiving payment)?
The standard is only not engaging in wanton or gross misconduct, meaning the Host-Driver would be shielded from liability for mere negligence.
79
What are the elements for liability under the Attractive Nuisance Doctrine?
1. Artificial Condition
2. Knows or has reason to know (at a minimum) of: (1) children and (2) unreasonable risk of death or serious injury.
3. Children are too young to discover condition or know of risk (if the child does appreciate the risk, this doctrine is negated).
4. Utility and cost of addressing it is less than risk to children.
5. Lack of reasonable care to protect children.
80
What is the Firefighter's Rule?
A publicly employed rescuer may be unable to recover from a negligent defendant, because the defendant will generally not have a duty of reasonable care to a publicly employed rescuer.
| Applies to landowners.
81
What are the traditional categories of visitors?
Invitees
Licensees
Trespassers
82
What is an Invitee?
Any person who is on the premises at least in part for the economic benefit of the landowner or it can be a customer or someone who is on the premises as a member of the public who is on the land for the purpose the land is held public for.
83
What is a Licensee?
Any person who is permitted to be on the land or whose entry is privileged.
84
What is a Trespasser?
Any person whose entrance upon the land is unconsented to and unprivileged.
85
What is the difference between an Invitee and a Licensee?
Difference between an invitee and licensee is the economic aspect (invitees are there for the economic benefit of the landowner, whereas licensee can be there for any reason and both must be consented to or privileged to be on the land).
86
What duty of care does a landowner owe to an invitee?
Landowners generally have a duty of reasonable care to invitees.
87
What duty of care does a landowner owe to a licensee?
Landowners generally have a duty to avoid willful and wanton misconduct, but reasonable care if landowner knows or has reason to know of danger to entrant (e.g., warn of dangerous hidden conditions).
88
What duty of care does a landowner owe to a trespasser?
Landowners generally have a duty to avoid willful and wanton misconduct, but reasonable care if landowner knows trespasser is about to encounter a danger.
89
What duty of care does a landowner owe to a child trespasser?
A landowner has a duty of reasonable care to children brought on by attractive nuisances, especially if they are too young to be aware.
90
What is the Frequent Trespass Exception?
The Frequent Trespass Exception states that landowners generally have a duty of reasonable care if there is known to be frequent trespassers (e.g., a well worn path by railroad tracks), because if nothing is done to stop these trespassers, then it can be assumed that these trespassers are more like licensees.
91
What is the alternative system for landowner liability established by Rowland v. Christian?
Landowners have a duty of reasonable care to anyone on their land.
92
What is the Open and Obvious Danger Rule?
A landowner is not liable for injuries suffered by dangers that are both open and obvious.
93
What do Recreational Use Statutes do?
Recreational Use Statutes shield from liability for ordinary negligence, but not gross negligence or intentional torts, so long as there is no charge.
This eliminates the obligation of a landowner to warn of hidden dangers if that person is coming for recreational use.
94
What is the Medical Standard of Care?
What the relevant medical community holds to be acceptable.
95
Does Medical Malpractice require expert testimony?
Medical Malpractice usually requires expert testimony unless the breach is so obvious as to be common knowledge (e.g., leaving forceps in a patient's abdominal cavity after surgery).
96
Do physicians need to exercise reasonable care?
Physicians do not need to exercise reasonable care if it is not customary to do so.
97
How do you prove Breach in Medical Malpractice cases?
You put on evidence of what is the generally accepted medical standard and show how it was deviated from.
98
Are physicians evaluated in relation to other physicians or in relation to other specialists in their field?
Physicians are evaluated in relation to other specialists when operating in their specialty and against other physicians in general when operating outside of it.
99
What are the elements of Informed Consent?
Doctor failed to tell of the risk and had a duty to do so.
Plaintiff would not have had the treatment if she had been adequately informed.
A reasonable person would not have had the treatment either.
The undisclosed risk materializes and results in injury.
100
What must the plaintiff be told?
A physician owes to his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure.
101
What is Governmental Immunity?
Historically, the general rule was that you could not sue the Federal or State Government for tort action.
102
What is the Federal Torts Claim Act (FTCA)?
In 1946, Congress passed the FTCA, which waived the sovereign immunity of the United States for certain torts committed by federal employees acting within the scope of their employment.
103
What is the procedure under the FTCA?
Federal court only.
Only bench trials.
Administrative notice required.
The government (not the employee) is the defendant.
104
What are the elements of an FTCA claim?
1. Against the United States.
2. For money damages.
3. For injury or loss of property, or personal injury or death.
4. Caused by the negligent or wrongful act or omission of any employee of the Government.
5. While acting within the scope of his office or employment.
6. Under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act occurred.
105
What are some Agency-Specific Exceptions to FTCA?
US Post Office Exception: US Government has immunity for any lost parcels.
--Exception to the US Post Office Exception: Registered mail is not covered by the US Post Office Exception.
US Customs Exception: US Government has immunity for any customs related matters.
106
What is the Combatant Activities Exception?
US Government has immunity for any claims arising from combatants.
107
What is the Quarantine Exception?
US Government has immunity for any claims arising from a quarantine.
108
What is the Foreign Country Exception?
US Government has immunity for any claim arising from conduct in a foreign country.
109
What is the Feres Doctrine?
US Government is not liable under the FTCA for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.
110
Does the Feres Doctrine apply to state-side military personnel?
Yes, the Feres Doctrine applies to all military personnel.
111
What is Discretionary Immunity?
28 U.S.C. § 2680(a):
“The provisions of this chapter and § 1346(b) of this title shall not apply to – (a) Any claim based upon . . . the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part.”
112
How to do a Discretionary Immunity Analysis
Does the statute give the government agency discretion to make the decision?
Did the government have a choice?
Assuming there is discretion, is it a decision susceptible to social, economic, or political policy analysis?
Does the decision involve scientific or professional judgment about safety?
Can we characterize the decision as one of implementation instead of design?
113
What is the Public Duty Doctrine?
The public duty doctrine holds that public entities and officers are not liable to individuals for failure to carry out a duty, even a statutory duty, owed to the public at large rather than to particular individuals or groups.
114
What are some exceptions to the Public Duty Doctrine?
Special relationship
New York test
--Assumption by government, through promises or actions, of an affirmative duty to act on the behalf of the party who was injured.
--Knowledge on the part of the government’s agents that inaction could lead to harm.
--Some form of direct contact between the government’s agents and the injured party.
--The injured party’s justifiable reliance on the municipality’s affirmative undertaking.
115
What does No Duty to Act mean?
Principle under Common Law: “No one needs to take affirmative action for another’s protection.”
Therefore, there is no liability for nonfeasance, only for misfeasance, but the more behavior you talk about, the more likely it is to be misfeasance.
116
Do you have a duty to help someone, even when there is no real cost?
No duty exists to help someone, even one where there is no real cost, unless there is a special relationship.
117
Exceptions to No Duty to Act?
Statutory (e.g., drivers involved in a collision must stop and render aid).
Common Law
--One who causes harm, even without fault, is under a duty of reasonable care, including assistance or rescue if a reasonable person would give it.
--One who creates a risk of harm, even without fault, is under a duty to act reasonably.
--Special relationships (non-exhaustive list identified in Restatement (3d) of Torts)
----Common carrier-passenger
----Innkeeper-guest
----Landowner if open to public and lawfully on the land
----Employer-employee
----School-student
----Landlord-tenant
----Custodian-person in custody
----Spouse-spouse (not in list)
----Parent-child (not in list)
118
Is there a Duty to Protect?
Absent a special relationship, there is no duty to protect another from criminal attacks by third persons.
119
Can you recover for negligent infliction of emotional distress absent any harm or injury?
Absent any physical harm or injury, you cannot recover for negligent infliction of emotional distress.
Negligence --> Physical Harm --> Emotional Harm = Recovery
Negligence --> Emotional Harm --> Physical Harm = No Recovery
120
Can you recover parasitic damages for negligent infliction of emotional distress?
An underlying tort is required because emotional harm is parasitic.
121
What is the Impact Rule?
Physical impact, even if no physical injury, can allow recovery in some states.
122
Is the Impact Rule a majority doctrine?
No, only a small handful of states still use it.
123
What is the Physical Manifestation Rule?
Physical manifestation, even if no physical injury or impact, can allow recovery in some jurisdictions.
Some jurisdictions don't even require a physical manifestation, but rather just a diagnosis or showing of the frequency of the distress.
124
What is the Zone of Danger Test?
Plaintiff can generally recover so long as the plaintiff was within the zone of danger as long as the jurisdiction does not require physical manifestations.
125
Can plaintiffs recover in Negligent Infliction of Emotional Distress cases if they were only an indirect victim?
Plaintiffs can recover if:
--Plaintiff was near the scene when the other person was injured or threatened with injury.
--Plaintiff saw the accident as it occurred.
--Plaintiff and the other person were closely related.
----Plaintiffs can recover if they see the accident involving their children on live video.
----Plaintiffs can recover if they see the accident involving their children immediately after it occurs and before they go to the Hospital.
126
What does the Restatement (3d) § 48 say about recovery for Negligent Infliction of Emotional Distress?
An actor who negligently causes serious bodily injury to a third person is subject to liability for serious emotional harm caused thereby to a person who:
--(a) perceives the event contemporaneously, and
(b) is a close family member of the person suffering the bodily injury
127
Well Recognized Exceptions to Duty to Protect Well-Being Independent of Physical Harms
Negligently delivering messages regarding death of a loved one.
Negligent handling of a loved one's remains.
128
What is Loss of Consortium?
Recovery for loss of physical intimacy, loss of affection, etc. from one's partner.
129
Is Loss of Consortium well recognized?
Nearly every state recognizes Loss of Consortium.
130
Is Loss of Consortium permitted for loss of a pet?
Loss of Consortium is permitted for loss of a spouse, but not for loss of a pet.
131
Can you have a claim for Loss of Consortium if the injured party doesn't have a claim?
No, you may only bring forth a claim for Loss of Consortium if the injured party can bring forth a claim.
132
What Writ does Negligence originate from?
The Writ of Trespass on the Case
