NIED Flashcards
The impact rule
even slight physical injury can support recovery for consequential emotional damages. (like blood drawn)
*majority position
1)Zone of danger RULE
recovery is allowed if pltnf was in the zone of danger, even if not physically hurt.
*majority
2)Bystander Rule
Recovery permitted accorded into Dillon v. Legg
*minority
3)Dillon v. Legg RULE
allows recovery only when:
1) plntf is closely related to an injured victim
2) plntf is present at time of injury-producing event & is AWARE that injury is occurring AND
3) plntf as result suffers severe emotional distress (not abnormal under circumstances)beyond that of a disinterested witness.
* *ensuring causation justifies the rule
Is Dillon rule conjunctive or a multi-factor test?
usually conjunctive, but some courts can be convinced otherwise
Is Dillon alone enough?
NO…..still need predicate physical injury
Rationales for limiting emotional distress recovery:
1) can’t right every wrong would be burden on court, have to pick critical ones (physical)
2) Hard to prove, to subjective/difficult in valuation & susceptible to fraud (easily feigned)
3) Limitless liability if everyone at fault for negligence of emotional issues
* and causation issue, so many things cause people emotional distress ,who should be responsible & how would we prove it.
parasitic claims & NIED
no….but do tag on to other no physical injury claims. Usually w.damaged like loss of consortium.
can grief be a intervening cause?
it was in MA case, NIED where mother witnessed child death arriving on scene & father learned of it later. Parents Estate sued cuz grief killed them. Here grief then physical impact instead of vice versa forNIED.
Negligent mishandling of a corpse of a close family member?
NIED, in MA.
fear of illness damages?
yes, in MA
if exposure, medical probability and sufficient proof
problem w/bystander rule
pound-slippery slope-allow recovery for hurt feelings. (usually safeguard this w/higher culpability stndrd but NIED takes it away)
whats wrong with saying we can’t allow NIED cuz tort needs a physical injury to person or property (Bell thoughts vs. Pearson thought)
Pearson:We don’t “really” cut off liability there cuz we allow consequential damages (make plntf whole)
-they say shouldn’t award conseq. damages. (get rid of loss of consortium), (don’t make plntf whole)
ex) kill kid=injry & award
say ugly & suicide= gets nada
Bell: we can’t apply consistently
Boyles v. Kerr
sex tape case. Was a problem w/extended causation cuz- perception of others was a causal factor in chain. Def. wasn’t legal/prox cause of her humiliation/emotiol distress.
foreseeability
has to be more than just consequence. has to be natural-probable sequence of events.
telegraph & neg. mishandling of corpse
historically NIED
forseeability problemss: overinclusive/under inclusive
underinclusive- people like Kerr (sex video) who can’t recover
overinclusive- allow too wide of a range where physical threshold is so small that offends idea of proportionality. (floodgates) (needle prick, emotional dam, etc)
<—counter argue….even all physical injury not covered by tort system. (need a significant one) (Molien)
Molien v. Kaiser Foundation
reasoning IMPORTANT
False positive/syphilus ends marriage.
Husbands case- physical injury=needle prick of his wife(3rd party)….& also bases it on that DR “Knew” (foreseeable) that erroneous diagnosis could cause discord & end marriage. Suffered extreme emotional distress as result of neg. misdiagnosis.
court says yes dr. duty, but quest. on physic injury to husband? yes, foreseeablity & gravity of false diagnosis (objectively verifiable) -yes a COA allowed.
Molien compared w/Dillon
Molien was seen as a “direct victim” rather than a bystander suffering consequential damages in Dillon.
Cali NIED
- direct victim (molien)
- stands in the path of neg
- def. owes plntf a duty (usu. due to pre-exist spec. relationship)
Proof of Emotional Distress
- exceeds what is reasonable under circumstance (no egg-shell psyche rule)
- objective manifestation of merely emotional injury (testimony family or dr.)
