Duty - Limited Duty - Type of Harm Flashcards
What are the Rowland factors?
For making a public policty argument for duty
- The foreseeability of the harm to the plaintiff
- The degree of certainty that the plaintiff suffered injury
- The closeness of the connection between D’s conduct and P’s injury
- The moral blame attached D’s conduct
- The policy of preventing future harm
- The extent of the burden to the defendant and the consequences to the community of imposing the duty to exercise care with resulting liability for breach
- The availability, cost, and prevalence of insurance for the risk involved
Limited Duty - Type of Harm
NIED
The initial harm must be emotional - physical harm may arise from the the emotional harm but not the other way around
Limited Duty - Type of Harm - NIED
Define direct NIED
Severe emotional distress caused by fear of harm to oneself
Limited Duty - Type of Harm - NIED
The 3 approaches to direct NIED
- Impact
- Zone of Danger
- Independent Duty Rule
Limited Duty - Type of Harm - NIED
Define the “Impact” approach
Requires some physical impact
Limited Duty - Type of Harm - Direct NIED
Define the “Zone of Danger” approach
- Emotional distress incurred as a result of being in the zone of physical harm
- Emotional harm is caused by the fear of almost being injured
Limited Duty - Type of Harm - NIED
Defined the “Independent Duty” approach
P is already owed an pre-existing duty and suffers serious emotional distress or physical manifestations
* Patient-doctor relationships are common
Limited Duty - Type of Harm - NIED
Bystander
Severe emotional distress caused by fear of harm to another
Limited Duty - Type of Harm - NIED - Bystander
Approaches to Bystander NIED
- Zone of Danger
- DTC
- Foreseeability
Limited Duty - Type of Harm - NIED - Bystander
Define the “Zone of Danger” approach
- Bystander P was at threat of immediate risk physical harm to themselves and suffered emotional harm by witnessing what happened to the primary victim or
- When emotional distress is caused by seeing serious injury to a close relative if P was in the zone of danger in which the harm occurred
Limited Duty - Type of Harm - NIED - Bystander
Define the DTC approach
- Primary victim must be closely related to bystander; and
- Bystander must have contemporaneous sensory perception of the event or conduct that caused the injury or learns of it before the a change in the victim’s condition or location and aware that it is causing injury to the primary victim; and
- Bystander must suffer severe emotional distress or phisical manifestation - a reaction beyond what would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances
- [Clohessy adds] Injury to the primary victim must result in serious injury
Limited Duty - Type of Harm - NIED - Bystander
Define the Foreseeability approach
- Is the risk of emotional harm to the bystander reasonably foreseeable?
- Did P suffer severe emotional distress
* Rescue rule does not apply to foreseeable emotional harm
Limited Duty - Type of Harm - NIED - Bystander
Define “closely related” variations
- Immediate family
- A spouse, registered domestic partner, or relative who resides in the same household, siblings, parents, children, and grandparents
- Unmarried cohabitants and best friends are usually not covered
- Hawaii is a more flexible jx
Limited Duty - Type of Harm - Pre-Natal
Damages available for wrongful conception
- Costs and the pain and suffering associated with the failed procedure as well as corrective procedures
- Costs and the pain and suffering associated with the unwanted pregnancy and birth
- Mother’s lost wages
- Father’s lost wages and loss of consortium
Limited Duty - Type of Harm - Pre-Natal - Wrongful Conception
Motivational Analysis
- Damages more likely to be awarded if the parents sought to avoid pregnancy for financial reasons
- Less likely to be awarded if motivation was fear for mother’s health or fear of possible genetic defects
Limited Duty - Type of Harm - Pre-Natal - Wrongful Conception
Benefit Rule Analysis
May reduce the damage award by the emotional gains of having a healthy child
Limited Duty - Type of Harm - Pre-Natal
When might there be a duty for Wrongful Birth?
When there is a question as to whether parents have been deprived of the chance to terminate the pregnancy
Limited Duty - Type of Harm - Pre-Natal - Wrongful Birth
Damages
ONLY the costs associated with the birth defect
Limited Duty - Type of Harm - Pre-Natal
How does the court handle wrongful life?
Discomfort with weighing life and non-existence in the courts
Limited Duty - Type of Harm
Define Loss of Consortium
- The victim is NOT dead but IS severley injured
- The suit is for loss of comfort, companionship, and affection
- Must prove loss of these things from a strong, fulfilling relationship
Limited Duty - Type of Harm
Define Survival Actions
Claim by the victim (damages go to the victim’s estate - medical expenses, lost wages, pain and suffering)
Limited Duty - Type of Harm - Survival Actions
How are Survival Actions carried out?
- Continuation of the action by the decedent against the defendant (on behalf of the decedent’s estate
- Recover damages that the decedent would have recovered if she had lived - medical expenses, lost wages, and possibly pain and suffering
- NO survival action for instantaneous death
Limited Duty - Type of Harm
Define a Wrongful Death claim
Claim by the family (damages go to the family or whoever is suing - contribution to the family, emotional harm, loss of comfort, and companionship
Limited Duty - Type of Harm - Wrongful Death
Who may bring a claim?
Purely statutory
* May be brought only by those permitted to do so under the statute - spouse, parents, and children are typically permitted
Limited Duty - Type of Harm - Wrongful Death
What may be recovered?
- The replacement of services provided by the decedent
- Loss of companionship and affection (similar to consortium)
Limited Duty - Type of Harm
Economic Harm
There is NO duty when the harm is purely economic
Limited Duty - Type of Harm
What are the 3 types of functions of Utility Defendants?
- Discretionary Functions
- Ministerial Functions
- Proprietary Functions
Limited Duty - Type of Harm - Utility Defendants
Define Discretionary Functions
How party allocates funds, where to direct resources = no duty under the general public duty doctrine (so as not to interfere with the separation of powers)
Limited Duty - Type of Harm - Utility Defendants
Ministerial Functions
Maintenance of a government building = usually not expressions of public policy = generally not covered by the public duty doctrine and there could be a duty (but there could be a lot of debate on whether the conduct is ministerial or discretionary)
