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Flashcards in Negligence Cases Deck (35):
1

Kime v. Hobbs
"Keep On Trucking"

ISSUE: How to differentiate between employee and independent contractor.
SYNOPSIS: Joan Kime (Π) was seriously injured in a collision between the vehicle in which she was a passenger and a tractor-live-stock trailer unit driven by Edward Yelli. Yelli owned the truck-tractor, and William Hobbs (Δ), a farmer-rancher, owned the livestock trailer. At the time of the accident, Yelli was hauling cattle for Δ.
IMPORTANT: The right of control is the chief factor in distinguishing an employment relationship from that of an independent contractor. An independent contractor is one who, in the course of an independent occupation or employment, undertakes work subject to the will or control of the person for whom the work is done only as to the result of the work and not as to the methods or means used.

2

Rudolph v. Arizona B.A.S.S. Federation
"Jet Skis out the BASS"

ISSUE: If you can't foresee the victim, is there duty?
SYNOPSIS: Grand Canyon Bass Busters (GCBB) held a bass fishing tournament at a lake. A boat operated by James Kirkland collided with Π's daughter's jet ski, who died at the scene. Kirkland and his passenger, Phil Allen, were tournament participants that had 5 minutes to reach the one weigh station four miles away before the deadline of 1pm, and so were traveling at a speed in excess of forty miles per hour.
IMPORTANT:
A. Duty "arises out of the recognition that relations between individuals may impose upon one a legal obligation for the benefit of the other."
B. There is no requirement that a foreseeable plaintiff must be connected with or personally known to the defendant for a duty to exist. All persons are required to use ordinary care to prevent others from being injured as the result of their conduct.
C. [W]hether the risk was unreasonable...merges with foreseeability to set the scope of the duty of reasonable care.

3

Reed v. Tacoma Ry. & P. Co
"Fucking up doesn't make you a fuckup"

ISSUE: Does contributory negligence bar action?
SYNOPSIS: Π's daughter's car was struck by the Δ's streetcar when crossing over the tracks in front of him.
IMPORTANT: The correct test is whether "the person act[ed] as a reasonably prudent person would have acted under similar circumstances." The mere fact that one errs in judgment is not conclusive proof that he did not act as a reasonably prudent person would have acted under like circumstances. One may be mistaken as to the best course to pursue without being guilty of negligence as a matter of law.

4

Edwards v. Johnson
"Women: Lock'n'Load"

ISSUE: Different standards for women?
SYNOPSIS: Π went to Δ's back door at 9:30pm on business as he had done before. The house was dark. Δ was at home alone with her three kids. Π knew that her husband was away on business. Δ had heard of prowlers recently in the neighborhood. Hearing the knock, she loaded her shotgun, cocked it, and went to the back door. She went to open the curtain with her left hand, accidentally striking the barrel of the gun against the door and discharging it.
IMPORTANT: Consider "Reasonable Woman" idea as well as the "emergency" suggested by court.

5

Foster v. Strutz
"Ruining Foster's Strutz"

ISSUE: What constitutes emergency?
SYNOPSIS: Π was standing alongside a pickup. Five assailants approached Δs' car, striking the man through the open window. The male Δ shielded the female Δ, who was in the driver's seat, by pulling her down into his lap. One man hits the gearshift, knocking it into reverse. Δ hits the accelerator, believing the car will go forward. It reverses, crushing Π's foot between the bumper and side of the pickup truck.
IMPORTANT: If you make a mistake in an emergency situation, as long as the mistake was reasonable, there may be no negligence. A sudden emergency is "an event that requires, if not an instantaneous response, certainly something fairly close to that." The emergency wasn't sudden (they had ten to fifteen seconds to react).

6

Bashi v. Wodarz
"Crazy Car Can't Clear"

ISSUE: Sudden onset disability isn't liable. Insanity?
SYNOPSIS: Δ was involved in a rear-end auto accident. She left the scene without stopping. Later she was involved in a second automobile accident with Πs. Δ doesn't remember the event & claims she had no control of her actions at that time due to a sudden occurrence of mental problems, for which she claims a family history of.
IMPORTANT: Cohen v. Petty says that between an innocent passenger and an innocent fainting driver, the former must suffer. HOWEVER, a person of unsound mind, of whatever degree, is civilly liable for a wrong done by the person, but is not liable in exemplary damages unless at the time of the act the person was capable of knowing that the act was wrongful.

7

Robinson v. Lindsay
"Rule of Thumb for Snowmobiles"

ISSUE: Standard of Care
SYNOPSIS: Π lost full use of a thumb in a snowmobile accident when 11. Δ was 13 and was the driver.
IMPORTANT: When the activity a child engages in is inherently dangerous or adult in nature, as is the operation of powerful mechanized vehicles, the child will be held to an adult standard of care. This rule protects the need of children to be children but at the same time discourages immature individuals from engaging in inherently dangerous activities.

8

United States v. Carroll Towing Co.
"All float on...until you sink"

ISSUE: How to determine the standard of care and establish negligence.
SYNOPSIS: Δ had several barges. One of them (Anna C) was left by its Bargee for 21 hours. It got loose & crashed into a tanker, causing that tanker's propeller to break a hole in the barge near the bottom. The Anna C "careened, dumped her cargo..., and sank."
IMPORTANT: Hand's risk calculus!

9

Hagerman Construction, Inc. v. Copeland
"Deconstructing Copeland"
"Nothing But Net...Wait, No Net."

ISSUE: Is that evidence regarding other projects is irrelevant and unfairly prejudicial?
SYNOPSIS: Δ, an experienced ironworker employed by Beasley (a subcontractor of Π), fell to his death through an unprotected opening in the precast concrete nearly forty-five feet above the ground. Court allowed two expert witnesses to testify regarding contractual responsibility for safety as well as custom/practice, and three construction workers to testify about other projects and that the general contractor typically covers openings.
IMPORTANT: The conduct of other persons in substantially similar conditions may be relevant to the reasonableness, under the circumstances, of a particular individual's acts or omissions. This is relevant to establish standard of care. Custom is well known and predictable, as well as changes with the community.

10

Trimarco v. Klein
"Pain in the Glass"

ISSUE: Regardless of statutes not being retroactive, does availability and changing custom transform the standards of care?
SYNOPSIS: As Π was in the process of sliding the glass door (untreated and untempered) on the shower open, it shattered. Π used expert testimony, safety standards, and customs to support the case.
IMPORTANT: "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." Texas & Pacific Ry. Co. v. Behymer.
1. When proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care.
2. When proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability.

11

The T.J. Hooper
"Radio Killed the...not-radio?"

ISSUE: Whether a lack of custom is a defense against negligence.
SYNOPSIS: Two barges picked up cargoes, towed by two tugs. Weather was good when they left, ended up bad. They did not carry radio receiving sets. No customs for radios. Trial judge found that all of the vessels were unseaworthy.
IMPORTANT: Custom is not a bar for negligence. The ruling incentivizes new technology and standards.

12

Baltimore & Ohio R.R. Co. v. Goodman
"Runaway Train, Never Coming Back"

ISSUE: Whether due care (usually a matter for the fact-finder, i.e. jury) should be decided by judge who asserts a clear standard of conduct.
SYNOPSIS: Π was struck and killed by one of Δ's trains as he was driving across a railroad crossing. Π's view of the crossing was blocked and he did not stop, look, or listen for approaching trains.
IMPORTANT: If you know you could be killed, you have to stop. Judges, refusing to give a case to a jury, override the jury standard (controversial).

13

Pokora v. Wabash Ry. Co.
"Back-train-tracking"

ISSUE: What criteria must courts of law use in establishing a standard of prudent conduct as a rule of law?
SYNOPSIS: Π approached a Wabash (Δ) railroad crossing in his truck. Π stopped and looked and listened as well as he could. Π heard no bell or whistle and drove slowly ahead and was struck by a passenger train.
IMPORTANT: It is up to the jury to decide whether a particular course of action was prudent under the circumstances. The standard for measuring negligence is conduct that falls below the standard established by law for the protection of others against an unreasonable risk of harm. That standard must be determined by the fact finder (jury) on a case by case basis. The negligence standard never changes; it is only the circumstances that change and how a reasonable person acts under them.

14

Ferrell v. Baxter
"Road Rules Challenge"

ISSUE: Statutes can establish Prima Facie negligence.
SYNOPSIS: Collision between Joan Farrell (Δ1) and a mack truck owned by Sea-Land, Inc. (Δ2) driven by Melvin Greaves (Δ3). Δ1 drove; Π was front passenger. The road was icy. Δ3 said the car was speeding and over the line because he was eight inches from the snow berm on the side of the road, leaving sixteen inches of room. Π says truck was over the line and that Δ1 was paying attention to the road, not speeding. State trooper said the point of impact was in the truck's lane. Δ1 said she "must have" unintentionally put her foot on the brake.
IMPORTANT: Jury instruction gave statutes on speed and driving on the right side, and that violations would establish a prima facie case that the defendant was negligent.

Negligence per se: Violation of statute (representing the standard of care) becomes negligence insofar as breach of duty unless excuse can be provided. Causation still must be considered as the breach may not be connected to the duty.

15

Wright v. Brown
"Dog Bites Man, Man Sues County"

ISSUE: How to determine if statutes apply.
SYNOPSIS: Δ's dog attacked one person, which resulted in its quarantine. Let off prior to the expiration of the statutory fourteen-day quarantine period. Dog then bites Π. Π alleged that co-Δ allowed the dog to roam freely, creating unreasonable danger in contravention of the statute. The complaint also stated a cause of action for negligence, alleging that the co-Δ failed to comply with the standard of conduct required by the local statute.
IMPORTANT: That principle of the law sets forth two conditions which must coexist before statutory negligence can be actionable. First, the plaintiff must be within the class of persons protected by the statute. Second, the injury must be of the type which the statute was intended to prevent.

16

Clark v. Kmart Corp.
"Mart Marks Clark"

ISSUE: Was evidence of a hazardous condition in place long enough to put the D on constructive notice of the condition?
SYNOPSIS: As Π & husband walked through a closed check-out lane into the store, Π was injured when she slipped on several loose grapes scattered on the floor. Husband testified he saw footprints leading from the grapes. According to employees, the checkout lane would have been closed a least an hour before Π arrived. There's no evidence that any employees knew of the grapes.
IMPORTANT: "It is the duty of a storekeeper to provide reasonably safe aisles for customers and he is liable for injury resulting from an unsafe condition either caused by the active negligence of himself and his employees or, if otherwise caused, where known to the storekeeper or is of such a character or has existed a sufficient length of time that he should have had knowledge of it."

17

Byrne v. Boadle
"Barrel-cracker"
"Worst Game of Donkey Kong"

ISSUE: Can one assert the accident itself is evidence of negligence.
SYNOPSIS: Witness testified he saw Π walking on the public street alongside Δ's warehouse when a barrel of flour fell from a window of the warehouse and seriously injured Π.
IMPORTANT: The mere fact of the accident having occurred is prima facie evidence of negligence (Res Ipsa Loquitur). RIL does not negate causation. The immediate cause of the injury must still be established.

18

Eaton v. Eaton
"Eaton ate it"

ISSUE: Does the fact that an accident occurred in and of itself (Res Ipsa Loquitur) not provide any basis for liability?
SYNOPSIS: Π died from injuries suffered in a car accident. Before death, Π told police that her daughter, Δ, had been driving. Δ said Π was the driver and that the accident occurred when Π swerved to miss an on-coming car in their lane. Police found evidence at the crash supported Π's version.
IMPORTANT: When res ipsa loquitur applies, it permits an inference of negligence that can satisfy Π's burden of proof (enabling Π to survive a motion to dismiss), but does not shift the burden of proof. The jury is entitled to believe either Π or Δ was driving. Under circumstances, once the jury found that Δ had been the driver, it could logically have found that she had been in exclusive control of the car.

19

Ybarra v. Spangard
"Too many cooks spoil the instrumentality"

ISSUE: If too many Δs and too many instrumentalities that could have led to the injury, can one show negligence without specific instrumentality or exclusive control?
SYNOPSIS: Π is told to get appendectomy by one doc, gets put under by another, has surgery performed by a third, wakes up to a nurse, all of whom are employed by a fifth. No his shoulder/arm is in pain and withering.
IMPORTANT: Where a patient receives unusual injuries while unconscious and in the course of medical treatment, all those who had any control over his body or the instrumentalities which might have cause the injuries may properly be called upon to meet the inference of negligence by given an explanation of their conduct. It should be enough that Π can show an injury resulting from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as Π may ever be able to make.

20

Smith v. Finch
"Deadly Differential Diagnosis"

ISSUE: The correct extent of the Hindsight instruction.
SYNOPSIS: Πs sued various physicians and other health care providers for medical malpractice arising from the failure to correctly diagnose their son, Justin, with Rocky Mountain Spotted Fever, a rare but serious viral disease transmitted by ticks. It's undisputed that physicians were incorrect in diagnosing. Πs presented expert medical testimony that presenting symptoms were "classic" of RMSF and that, due to the lack of a quick diagnostic test for the disease and the disease's potentially sever and even lethal effects, a lack of a more detailed medical history, the stander of care was to maintain a high index of suspicion and low threshold for treatment of the disease.
IMPORTANT: Failure to cure is not a breach. However, even if something is remote in likelihood, if foreseeable, may be liable. If there is a conflict between experts, the jury decides. The standard of degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field.

21

Phillips v. Hull
"Tying Up Loose Ends"

ISSUE: What constitutes informed consent?
SYNOPSIS: Π gave birth by C-section followed by having her tubes tied by Δ. Π is diabetic and future pregnancies indicated high risk pregnancy. Π admits she was told about a tubal ligation operation by Δ's nurse, but alleges that the ordinary procedure requires that Δ (1) tell her that the tubal ligation was not 100% effective and (2) advise her to continue contraceptive measures. Π got pregnant and gave birth. Π alleges that daughter is abnormal and has cerebral palsy. No evidence of this. Π presented no expert medical testimony to support their claim that Δ failed in some causally significant respect to conform to standard of care.
IMPORTANT:
Assuming we are not in an area within the common knowledge of laypersons, absent medical testimony to (a) articulate the duty of care of the physician owed under the circumstances and (b) identify the particular breach(es) of duty that caused injury, Π's claim for negligence regarding the surgery must fail.

HOWEVER, the informed consent theory of recovery is different in this case from the alleged negligent surgical procedure theory. No medical expert testimony is needed to prove what communications transpired between doctor and the patient. Though Δ denied any failure to inform, the nurse informed Π of the operation, so a genuine issue of material fact exists.

22

Smith v. Lewis
"Lawyer, Law Thyself"

ISSUE: Absent substantial proof of causation, can breach still be established?
SYNOPSIS: Π alleges Δ negligently failed in the divorce action to assert her immunity interest in the retirement benefits of her husband. Δ advised that her husband's retirement benefits were not community property. Pursuant to a request by Π, Δ filed a motion to amend the decree alleging under oath that because of his mistake, inadvertence, and excusable neglect the retirement benefits of General Smith had been omitted from the list of community assets owned by the parties, and that such benefits were in fact community property [denied on the grounds of untimeliness].
IMPORTANT: In determining whether a lawyer exhibited the requisite degree of competence in his handling of plaintiff's divorce action, the crucial inquiry is whether his advice was so legally deficient when it was given that he may be found to have failed to use "such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake." Lucas v. Hamm

23

MacPherson v. Buick Motor Co.
"Why no one buys American"

ISSUE: Once a product is sold by manufacturer to retailer, can the manufacturer be liable to a third party for constructive control of instrumentality as distinct from actual control?
SYNOPSIS: Buick Motor Co. (Δ) manufactures cars, and sold one to a retail dealer, who sold it to MacPherson (Π). While Π was driving, the car suddenly collapsed. Π was thrown out and injured. One wheel was made of defective wood. Wheel wasn't made be Δ, but bought from another manufacturer. Evidence suggests defects could have been discovered by inspection, which was omitted.
IMPORTANT: If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected.
Knowledge that the thing will be used by persons other than the purchaser means the manufacturer of this thing of danger is under a duty to make it carefully. Foreknowledge of risk can establish duty in the actor. The obligation to caution must vary w/ the nature of the thing to be inspected. The more the probable the danger, the greater the need of caution.

24

A.W. v. Lancaster County School District
"Predicting Pediwacks"

ISSUE: Does a lack of foreseeability of an assault negate duty?
SYNOPSIS: Siems entered Arnold Elementary School through the unlocked main entrance. There was a sign instructing visitors to sign in. The office had windows so secretaries could watch to make sure all visitors signed in. Siems passed the office w/o signing in. 3 teachers saw Siems in the hallway w/ a backpack and a cig. behind his ear. One asked if she could help him and he said he had to use the bathroom. The teacher pointed it out knowing that there were no students in the bathroom. She also advised Siems to go to the main office and sign in when finished, but she didn't stay to monitor Siems and keep students out of the restroom during his presence. Shortly afterwards, a five year-old student returned to his classroom and reported that there was a "bad" man in the restroom. Siems was apprehended and arrested for molesting the student.
IMPORTANT:
1. Because the extent of foreseeable risk depends on the specific facts of the case, courts should leave such determinations to the trier of fact unless no reasonable person could differ on the matter.
2. Foreseeability determinations are fact specific, so they are not categorically applicable, and are incapable of serving as useful behavioral guides.
3. Whether duty exists is a policy decision, and a lack of foreseeable risk in a specific case may be a basis for a no-breach determination, but such a ruling is not a no-duty determination.

25

Rowland v. Christian
"Cash, grass, or gas"

ISSUE: Whether a duty of care is owed to a licensee like that of an invitee.
SYNOPSIS: Π Calls Nancy (Δ), asks to leave his car at her house, uses sink in bathroom, cuts hand on sink, severs tendons and nerves.
IMPORTANT: In California, if you're not an invitee, then you're treated as a trespasser. NO BENEFIT=NO RIGHTS.

26

Yania v. Bigan
"Yani...AHHHHHHH"
"Possessed"

ISSUE: Whether a bystander owes a duty of care.
SYNOPSIS: Yania and Ross go to Bigan's property to discuss business. Bigan asks them to help him start a pump. Ross and Bigan enter the mining cut in the ground and stand where the pump is located. Yania stands at one of the top of the cut's walls and jumped from the side wall into the water and was drowned.
IMPORTANT: To say that Bigan caused such a mental impact on Yania––an adult in full possession of all mental faculties––that the latter was deprived of his volition and freedom of choice and placed under a compulsion to jump into the water is not only without precedent but completely without merit. The mere fact that Bigan saw Yania in a position of peril in the water imposed upon him no legal obligation or duty to go to his rescue unless Bigan was legally responsible...for placing Yania in the perilous position.

27

Farwell v. Keaton
"Far[e]well Ride"

ISSUE: Whether one has a duty to render aid if there's a "special relationship."
SYNOPSIS: Richard Farwell, 18, and his friend David Siegrist, 16, had a few beers while waiting for a friend to finish work. When teenage girls walked by they attempted conversation without success. The girls complained to friends that they were being followed, and six boys chased Farwell and Siegrist back to a trailer lot. Siegrist escaped, but Farwell was severely beaten. Siegrist found him under a car, put ice on his head and then drove around for two hours, stopping at drive-in restaurants. Farwell “went to sleep” in the back of the car and around midnight Siegrist drove him to his grandparents’ home, where he left him in the back of the car after an attempt to arouse him. Farwell died three days later from the beating and there was evidence that prompt medical attention could have prevented this.
IMPORTANT: When there's a special relationship between the parties, if Δ knew or should have known of the other person’s peril, he is required to render reasonable care under all circumstances. Such a Δ will then be liable for a failure to use reasonable care for the protection of Π’s interests.

28

Tarasoff v. Regents of University of California
"Doctor/Patient confidentiality vs. co-ed getting violently murdered...decisions, decisions."

ISSUE: Whether the Δs owed a duty of care to either Πs or their daughter and so were free to act in careless disregard of the daughter's life and safety.
SYNOPSIS: Prosenjit Proddar killed Tatiana Tarasoff. Tatiana's parents (Π)allege that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley. On Moore's request, campus policed detained Poddar, but released him when he appeared rational. Π claimed that Moore's superior, Dr. Harvey Powelson, directed no further action be taken. None warned Π of the danger.
IMPORTANT: A relationship of Δ therapists to either patient or victim will suffice to establish a duty of care. Patient/doctor or psychotherapist relationship may support affirmative duties for the benefit of third persons. Professional inaccuracy in predicting the violence cannot negate the therapist's duty to protect the threatened victim. The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved.

29

Dunkle v. Food Service East
"Die, Russian Spy!"

ISSUE: Whether the unforeseeability of a victim, despite proximity by relationship to the attacker, frees one from duty to warn.
SYNOPSIS: Tindal had been getting psychiatric care from Dr. Hylbert for schizophreniform disorder, and was taking Navane. Dr. instructed Tindal to stop using the drug. After discontinuation, Tindal became 'nasty' and 'violent.' Dr. re-prescribed Navane. Dr. discharged Tindal and discontinued his meds, telling him to take Navane as-needed. Tindal was also under treatment by Keith Berfield, a counselor at The Pennsylvania State University. Tindal & his girlfriend, Eyer, went to the Cannery to shop, they entered the men's room, and there Tindal strangled Eyer.
IMPORTANT:
"[A] victim may not be deemed 'readily identifiable' merely because there exists a statistical possibility that increased contact will yield a higher likelihood of an attack." Leedy v. Hartnett, 510 F. Supp. 1125 (M.D. Pa.1981)
"[A] psychologist (or psychiatrist) owes no duty to warn or otherwise protect a non-patient where the patient has not threatened to inflict harm on a particular individual." It would hinder the doctor-patient relationship, progress, and privilege.
* FLORIDA HAS REJECTED A THERAPIST'S DUTY TO WARN. They psychiatrists may want third parties, but failure to do so doesn't give rise to civil liability.

30

Delta Tau Delta v. Johnson
"Delta Tau DATE RAPE"

ISSUE: Can a party, unaware of licensees, owe a duty of care to protect them from harm?
SYNOPSIS: After being sexually assaulted in a frat house where she had attended a party, Tracey Johnson (Π) brought a civil claim against Δs: the perp, Joseph Motz (Motz); Delta Tau Delta, Beta Alpha Chapter (DTD); and Delta Tau Delta, National Fraternity (Nat'l).
IMPORTANT: Court goes with the TOC Test; finds that within two years of the case two specific incidents occurred that warranted consideration; and holds that DTD owed Π a duty of reasonable care. Now up to the jury to decide whether DTD breached the duty, and, if so, whether the breach proximately caused Π's injury. Insufficient evidence to establish a voluntary assumption of duty by Nat'l.

31

Mitchell v. Rochester Ry. Co.
"near MISs by CARRIAGE"

ISSUE: Whether the Π is entitled to recover for the Δ's negligence which occasioned her fright and alarm, resulting in injury.
SYNOPSIS: Π was standing at a crosswalk waiting for one of Δ's cars. Just as she was about to step upon the car, a horse car of Δ came down the street, came close to Π, so that she stood between the horses' heads when they were stopped. Π testified that from fright and excitement cause by the approach and proximity of the team she passed out, had a miscarriage, and consequent illness. Medical testimony corroborated.
IMPORTANT: The most reliable and better-considered cases, as well as public policy, fully justify the court in holding that the Π cannot recover for injuries occasioned by fright, as there was no immediate personal injury.
Why? FLOODGATES.

32

Clohessy v. Bachelor
"Objects in the Rear View Mirror May Appear Closer Than Their Mom"

ISSUE: Whether a parent and a sibling can recover damages for the emotional anguish they sustained by witnessing the parent's other young child being fatally injured as a result of an accident caused by the negligence of Δ.
SYNOPSIS: Brendan (7) left church with mother (Π) and brother. Attempted to cross street at crosswalk. Δ was speeding. Side view mirror struck Brendan's head. Both Π and sibling saw the impact. They suffered serious injuries as a result of the emotional shock and mental anguish of witnessing the accident that eventually led to Brendan's death.
IMPORTANT: Clohessy Rule:
In order to recover for emotional distress, the bystander must be (1) closely related to the injury victim and (2) witness the accident or the immediate aftermath; (3) the victim must be seriously injured or killed; and (4) the bystander's emotional injury must be serious and reasonable.

33

Charron v. Amaral
"I Now Pronounce Your Marriage Sexless"

ISSUE: Whether "a same sex spouse [can] pursue a claim for the loss of an injured spouse's consortium where the couple was not married when the personal injury cause of action accrued but can demonstrate that they would have been married if so permitted by law, and the couple did in fact marry when permitted" following Goodridge.
SYNOPSIS: Kalish and Charron are a same-sex couple who've acted as spouses for 12 years, then were married on 2004. Charron was treated for a lump in her breast and was diagnosed with breast cancer in 2003. After married, the couple filed a medical malpractice action for the alleged negligence in not diagnosing the cancer earlier.
IMPORTANT: Goodridge granted same-sex couples the right to choose to be married after a specific date; the court never stated that people in same-sex, committed relationships...would be considered married before they obtained a marriage license.

34

Reagan v. Vaughn
"Sorry kid. Here's a cookie."

ISSUE: Whether a child recover for loss when a third party causes serious, permanent, and disabling injuries to their parent.
IMPORTANT: Children (minor and adult) may recover for loss of consortium when a third party causes serious, permanent, and disabling injuries to their parent. Π must show that the Δ physically injured the child's parent in a manner that would subject the Δ to liability. The child may recover for such non pecuniary damages as loss of the parent's love, affection, protection, emotional support, services, companionship, care, and society.
* Factors for the jury to consider:
a) the severity of the injury to the parent and its actual effect upon the parent-child relationship
b) the child's age
c) the nature of the child's relationship with the parent
d) the child's emotional and physical characteristics
e) whether other consortium-giving relationships are available to the child

35

American Industries Life Insurance Co. v. Ruvalcaba
"Your kid's head was lumpy anyway."

ISSUE: Whether a company is negligent when a child presence was unknown to the owner of the property is injured during the course of visiting an invitee (parent).
SYNOPSIS: Jose's wife and two-year old son, Johnathan, paid a visit to Jose's workplace. Johnathan fell through an open bannister, landed on his head on the ground, and lost consciousness. Permanent damage. Ruvalcabas alleged Johnathan was an invitee and that the open staircase in the Building constituted an "unreasonably unsafe condition" that American Industries had failed to make safe or warn about. Claimed negligence, negligence per se, and gross negligence.
IMPORTANT: Johnathan is not an invitee because he wasn't there for a business relation, mutual benefit of the owner and himself, the owner has no knowledge he was there.