Negligence - Special Rules of Liability

Question 1

When can a plaintiff recover for Negligent Infliction of Emotional Distress?

Answer 1

If P can show:

1. D engages in negligent conduct
2. P was w/in the zone of danger of the threatened physical Impact
3. The threat of physical impact caused emotional distress
4. P’s emot. dist. manifests physically

• minority of states allow recovery w/out phys. manifestation of harm

Question 2

What is the base requirement for an emotion distress claim?

Answer 2

The emotional distress is the first injury suffered by the P

Question 3

When can a bystander outside the Zone of Danger recover for emotional distress?

Answer 3

If the P:

1. Is closely related (close relative) to the person injured by D
2. Was present at the scene of the injury AND
3. Personally observed the injury

Question 4

When can a P recover for emotional distress when outside the zone of danger (no threat of physical impact)?

Answer 4

1. D negligently reports the death of a loved one OR
2. D negligently mishandled a corpse

Question 5

Wrongful Death Actions

Answer 5

Decendant’s spouse, next of kin, personal rep. can bring suit to recover losses suffered as result of a decedents death under WD actions created by state statute

Question 6

What are recoverable damages under wrongful death actions?

Answer 6

Recovery is limited to what the deceased would have recovered had he lived

1. Loss of support (income)
2. Loss of companionship, society, and affection experienced by surviving family member
3. NOT P&S

Decedent’s creditors have no right to institute a claim against the amount awarded

Question 7

Survival Actions

Answer 7

Allow the pers. rep. of a decedent’s estate to pursue any claims the decedent herself would have had at the time of her death

Question 8

What type of damages may a plaintiff recover under a survival action?

Answer 8

Damages resulting from:

• personal injury
• property damage
• Claims usually involve damages resulting from the tort that injured the decedent and resulted in her death

Question 9

Recovery for loss arising from injury to a Spouse

Answer 9

One spouse can recover for loss of consortium and services as result of injuries to the other spouse

Question 10

Recovery for loss arising from injury to a Child

Answer 10

Parent can recover damages for loss of services if a child is injured due to D’s tort

• Many juris. allow recovery for loss of child’s companionship in WD action if child is killed
• Few allow parent to recover if child is injured but lives

Question 11

Recovery for Loss arising from injury to Parent

Answer 11

Many juris. allow a child to recover for loss of parent’s companionship in WD action

• Most don’t allow child to recover if parent is injured but lives

Question 12

What limitations reduce recovery for loss arising from injury to family members ?

Answer 12

If the damages recovered in the injured family members own action are reduced by his comp. fault, then the Damanges recov. by the fam. mem. in the derivative action will be reduced

• derivative action -one arising solely b/c of tortious harm to another

Question 13

Wrongful Life Action

Answer 13

Most states don’t allow actions by a child for “wrongful life” based on failure to prop. perf. contraceptive procedure or failure to diagnose congenital defect

• Even if born with disability

Question 14

Wrongful Birth Actions

Answer 14

Many states allow a parent to recover for:

• wrongful birth - Failure to diagnose a defect OR
  
  • may recover for additional med. expenses of caring for the child
  • some states allow recovery for emot. dist.
• Wrongful pregnancy - Failure to perf. a contraceptive procedure
  
  • Mom can recover for med expenses of labor and pain & suffering

Question 15

What is a loss of consortium claim?

Answer 15

When a spouse is killed, the surviving spouse may bring a claim for loss of consortium for the loss of the

1. Relationship AND
2. Sex