Misc

Question 1

NIED - Risk of Physical injury to π and certain other special cases - Direct Victim

Answer 1

negligence elements w specific standards

Question 2

Duty and Standard in
NIED - Risk of Physical injury to π and certain other special cases - Direct Victim

Answer 2

a. Δ must owe a legal duty to π. Yes, unless a no-duty rule applies
b. Standard of care: usually reasonable care

Question 3

Breach in NIED - Risk of Physical injury to π and certain other special cases - Direct Victim

Answer 3

a. ∆ placed π at risk of immediate physical bodily harm AND
π was aware of that risk & feared for their own safety, OR

b. special cases where doesn’t need to have risk of harm to π, instead needs: (i) Special relationship,
(ii) Mishandling of the deceased OR
(iii) Erroneous notice of death of close relative

Question 4

LCH in NIED - Risk of Physical injury to π and certain other special cases - Direct Victim

Answer 4

π actually and reasonably suffered serious emotional distress and (in some jurx):
a. Physical manifestation (objective proof)

Question 5

NIED to Closely Related Bystander

Sudden and Serious Bodily Injury to 3rd Person

Answer 5

1. Δ Committed a tort of negligence Δ owed a duty to 3d person:
   a. Δ owed a duty to 3rd person, breach, LCH, CIF and SOR, of 3rd person AND
   b. The LCH the 3rd person suffered must be a sudden and serious bodily injury, not just regular LCH
2. π is closely related to the injured 3rd person, perceives the injury-causing event contemporaneously, and (in some jurx) is present at the scene
3. π LCH: π actually and justifiably suffered emotional distress (by RP standard) and
   a. Physical manifestation (served as objective proof) OR
   b. Emotional distress alone suffices as a LCH
4. π CIF: Def’s negligence was a cause in fact of P’s emotional distress
5. π SOR: P’s emotional distress falls w/in scope fo the risk

Question 6

What are the two ways to apportion fault

Answer 6

1. Joint and Several Liability (pro π) – can attempt to collect from any/all for the total
2. Proportionate share liability (separately liable according to their share) (pro Δ)

. Several (term of art) = separate.

Note on Joint and Several: If Δs are Joint and severally liable, with Δ1 at 25% and Δ2 at 75%, you can go after Δ1 for all of the damages. While Δ1 can make a claim against Δ2 to recover if Δ1 feels like they overpaid, they likely won’t get any from Δ2

Question 7

Parasitic Emotional Distress

Answer 7

In negligence there needs to be a physical injury to a person in order for emotional distress to be recoverable under pain and suffering

Can also be recoverable under battery and assault

Question 8

Death

Answer 8

1. Survival statute
2. Wrongful death

Question 9

Survival Statute

Answer 9

a. Survival statute: “Because the state of xxx recognizes survival statute, that means the estate will step into the shoes of the deceased to continue the case.”
i. Survival statute – allows the estate of the deceased to step into the shoes to continue the claim for the party. Applies for defendant and plaintiff.

Question 10

Wrongful death

Answer 10

π’s death must be cause by ∆’s wrongful intentional/negligent conduct. (also captures recklessness)
Majority approach: WD claims are derivative of other claims.
* Aff. defenses could make this fall apart on the underlying cases, which would result in the WD claim to fall apart too.
* Can have negligence and wrongful death claims concurrently

Would have to tell us the statute of limitations.
On exam, he may tell us:
(a) Who are the beneficiaries? (statutory)
(b) What LCH’s work? (like loss of consortium, economic stress..)