NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS and breach of duty

Question 1

NEAR MISS CASES - Negligent Infl. of Emotional Distress

Answer 1

• The plaintiff must be within the “zone of danger”
• The plaintiff must suffer physical symptoms from the distress

Question 2

Bystander Cases- Negligent Infl. of Emotional Distress

Answer 2

A bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another can recover damages for their own distress as long as:
* The plaintiff and the person injured by the defendant are closely related
* The plaintiff was present at the scene of the injury and personally observed or perceived the event

Most states drop the requirement of physical symptoms in
this situation.

Question 3

Theories for breach of duty

Answer 3

• evidence of the custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstance
  (other theories are negligence per se and res ipsa loquitur

Question 4

Negligence per se

Answer 4

Where the duty of care is set by a statute under the rules that govern using statutes in negligence litigation, proof of violation of the statute is conclusive evidence of breach of
duty.

Question 5

res ipsa loquitur

Answer 5

• The accident causing the injury is a type that would not normally occur unless someone was negligent
• The negligence is probably attributable to the defendant
  (meaning this type of accident ordinarily happens because of the negligence of someone in the defendant’s position)

Question 6

But for test

Answer 6

An act or omission is a factual cause of an injury when the injury would not have occurred “but for” the act or omission.

Question 7

SUBSTANTIAL FACTOR
TEST

Answer 7

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant’s conduct is the cause in fact if it was a substantial
factor in causing the injury.

Question 8

UNASCERTAINABLE CAUSES APPROACH

Answer 8

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause