Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Torts > Birth, Death, NIED > Flashcards

Birth, Death, NIED Flashcards

1
Q

What is a wrongful birth claim?

A

Parent’s claim

Usually for birth of disabled kid, would’ve terminated if known

Majority allow

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is a wrongful conception claim?

A

Parent’s claim

Botched sterilization results in unwanted healthy kid

Generally allowed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is a Wrongful Life claim?

A

Child’s claim

Generally not allowed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What damages are available for wrongful birth/ conception?

A

Economic (child rearing)

Noneconomic (pain and suffering)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What might court consider doing with damages in wrongful birth/conception?

A

Offset- offsetting damages by benefit gained from kid (generally allowed in WC)

Mitigation - avoidable consequences rule (most courts won’t use)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What damages might a parent get for Wrongful Birth?

A

Economic - extraordinary cost of raising abnormal kid

Maybe pain and suffering depending on NIED framework (Bystander or Burgess)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What damages might a parent get for Wrongful Conception?

A

Economic - pregnancy and birth only

Pain and suffering - pregnancy only

Offset - might happen if same class of damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is the difference between prenatal and preconception injury?

A

Prenatal = negligent injury to fetus

Preconception = negligent injury to woman who later gets pregnant and fetus is harmed as result

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is the test for if there’s a prenatal/preconception injury?

A

Is the fetus viable at time of injury?

Is the fetus born alive?

If yes to both –> always a claim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What does loss of consortium compensate for?

A

Less tangible aspects of life – loss of companionship, sex, love, care, support

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What kind of claim is loss of consortium?

A

Derivative – attaches to WD or negligence (if a vegetable)

Because it’s derivative, it can’t be better than the victim’s claim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Who can get loss of consortium?

A

Definitely spouses

Other family members vary by state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What dictates who can bring a Wrongful Death claim?

A

Almost entirely statute based. Statute designates beneficiaries even if a will exists

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What kind of damages can you get in a WD claim?

A

Economic Damages of what survivors lost by that person dying

Noneconomic damages (loss of companionship)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Who gets the damages in a wrongful death claim?

A

The victim’s survivors

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

How do you calculate economic damages for survivors in a WD claim?

A
  1. Loss to Survivors - Majority
    - amount of $ survivors reasonably could’ve expected
  2. Loss to Estate
    - amount of $ victim would’ve saved from earnings during normal lifetime
17
Q

Who benefits from the Loss to Estate measure for WD economic damages?

A

People who die without dependents, and kids who die

18
Q

What is the majority rule for calculating economic damage for WD?

A

Loss to Survivors

19
Q

What defense can be used in a wrongful death claim?

A

Any defense that could’ve been used against decedent

20
Q

What is a survival claim?

A

Suits that were started before guy died and continue on after his death

21
Q

Who gets the damages in a survival claim?

A

Estate of decedent

22
Q

What claims do die with the decedent?

A

Defamation

23
Q

How do you calculate economic damages for Survival Claims?

A

Any lost wages will only be for up until guy died

24
Q

What kind of damages can you get in WD?

A

Loss of future income (measured by Loss to Survivors or Loss to Estate)

Lost Consortium

25
Q

What kind of damages can you get in a Survival Claim?

A

Medical expenses

Loss of income up till death

Pain and suffering

Punitive

26
Q

What are the defenses to WD?

A

Decedent and beneficiary’s comparative/ contributory negligence

  • because WD is derivative and beneficiary can only recover if decedent could’ve
  • and because this is beneficiary’s claim so their negligence is relevant

Statute of limitations

27
Q

What are the defenses to Survival Claims?

A

Only decedent’s negligence is relevant

Statute of limitations (literally the same as it would’ve been if he was alive)

28
Q

How does statute of limitations factor into WD?

A

Timing matters – is it a derivative claim or a new independent claim that arises upon death?

Some jurisdictions don’t start the clock until decedent dies

29
Q

What are the elements of negligent infliction of emotional distress?

A

Same as negligence analysis, just the harm is the ED

30
Q

What are the tests for showing NIED for direct victims?

A
  1. Impact rule - minority
  2. Physical manifestation
  3. Zone of Danger
31
Q

What is the Impact Rule?

A

For NIED direct victim - physical impact is required, even if it didn’t hurt

32
Q

What is the Physical Manifestation Rule?

A

For NIED - π must show that the emotional distress is legit by showing physical manifestation of it

Some jdx will look at frequency, intensity, interference with daily life

Some jdx will require a medical diagnosis

33
Q

What is the Zone of Danger rule?

A

For direct NIED victims - must be within the zone of danger. Don’t need to have actually gotten hit, but it needs to have been possible

For indirect (bystander) NIED victims - must be within zone of danger and some jdx require feared for their life

34
Q

What are the tests for indirect (bystander) NIED?

A

Third Restatement - near (but outside zone of danger), knew it was happening, closely related to victim

Zone of Danger - was close enough to get hit, and some jdx require fear for own life

35
Q

Name the exceptions to NIED direct/ indirect victim rules

A
  1. Negligently telling someone a loved one is dead when they aren’t = instant NIED
  2. Negligently handling remains of loved one = instant NIED
  3. Burgess situation (mom sedated so didn’t qualify as bystander, but had special relationship with doctor)
36
Q

What counts as closely related for bystander NIED liability?

A

Majority rule is family and spouses

Some jurisdictions expand to close friends, live in couples

Torts (9 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions