Negligence - Pure Emotional Harm/Defenses Flashcards
Pure Emotional Harm (Negligent Infiction of Emotional Distress)
In general, no liability in negligence for purely emotional injuries. Plaintiff must show a physical injury from which the emotional harm resulted.
4 Exceptions: Zone of Danger, Bystanders, Mutilated Corpse, Miscommunication of Death or Serious Injury
Zone of Danger
Extends liability for emotional harm to a plaintiff who could have been and nearly was injured. Two requirements:
1. Plaintiff was under a real threat of physical injury given the plaintiff’s location (a “near miss” situation); AND
2. Plaintiff suffered physical symptoms of the distress. Ex. nausea, sleep loss, panic attacks
Observing close relative suffering (“Bystander”)
Liability for emotional harm may arise if th eplaintiff observes a close relative suffering physical harm as it is being negligently caused by another. Ex. mother watching child get hit by car
Some cases have allowed recovery for close relatives who heard but did not see the event (e.g., mother hearing a trapped child scram on the telephone).
Mutilated corpse
Exception to Negligence Liability for Pure Emotional Harm.
Liabitilty for emotional harm may arise if the defendant negligently damaged the dead body of the plaintiff’s close relative.
For liability to arise, deceased must be a close relative of the plaintiff
Miscommunication of death or serious injury of a relative
Causing someone to erroneously believe a close relative has died.
Pure Economic Loss Doctrine
Exception to sweeping duty of care priniciples. Cuts off liability for claimants asserting only pure economic loss.
Remember: Deepwater Horizon oil tanker tragedy in Louisiana. Hotels, tourist activities; only loss of revenue from event, so no recovery
Pure Comparative Negligence
Defense to negligence. Plaintiff’s recovery is reduced proportionally based on the percentage of fault allocated to the plaintiff. *True even if the plaintiff is more at fault than the defendant.
Modified Comparative Negligence
Defense to negligence. 2 types:
1. >50% fault –> Plaintiff can recover
2. Less than or equal to 50% –> Plaintiff can recover
Analyze in proportion to total fault, not as to each defendant
Contributory Negligence
Defense to liability for negligence. Any negligence by plaintiff could act as complete bar to recovery
Last Clear Chance Doctrine
Where defendant had last clear chance to avoid harm by exercising ordinary care, plaintiff can recover
Express Assumption of Risk
Plaintiff, prior to injury, orally or in writing entered into a contract or waiver of liability promising not to sue defendant for injuries. Where applied, acts as complete defense to negligence liability.
Implied Assumption of Risk
May be applicable when the defendant is negligent in creating a risk, but the plaintiff knowingly approaches that risk.
Ex. Apartment complex fail to fix a defective staircase, and the plaintiff (who knows the staircase is dangerous) uses it anyway because it is convenient. If it were only staircase, then not a defense.
