NIED Flashcards

1
Q

The impact rule

A

even slight physical injury can support recovery for consequential emotional damages. (like blood drawn)
*majority position

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2
Q

1)Zone of danger RULE

A

recovery is allowed if pltnf was in the zone of danger, even if not physically hurt.
*majority

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3
Q

2)Bystander Rule

A

Recovery permitted accorded into Dillon v. Legg

*minority

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4
Q

3)Dillon v. Legg RULE

A

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

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5
Q

Is Dillon rule conjunctive or a multi-factor test?

A

usually conjunctive, but some courts can be convinced otherwise

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6
Q

Is Dillon alone enough?

A

NO…..still need predicate physical injury

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7
Q

Rationales for limiting emotional distress recovery:

A

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.

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8
Q

parasitic claims & NIED

A

no….but do tag on to other no physical injury claims. Usually w.damaged like loss of consortium.

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9
Q

can grief be a intervening cause?

A

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.

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10
Q

Negligent mishandling of a corpse of a close family member?

A

NIED, in MA.

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11
Q

fear of illness damages?

A

yes, in MA

if exposure, medical probability and sufficient proof

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12
Q

problem w/bystander rule

A

pound-slippery slope-allow recovery for hurt feelings. (usually safeguard this w/higher culpability stndrd but NIED takes it away)

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13
Q

whats wrong with saying we can’t allow NIED cuz tort needs a physical injury to person or property (Bell thoughts vs. Pearson thought)

A

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

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14
Q

Boyles v. Kerr

A

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.

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15
Q

foreseeability

A

has to be more than just consequence. has to be natural-probable sequence of events.

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16
Q

telegraph & neg. mishandling of corpse

A

historically NIED

17
Q

forseeability problemss: overinclusive/under inclusive

A

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)

18
Q

Molien v. Kaiser Foundation

reasoning IMPORTANT

A

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.

19
Q

Molien compared w/Dillon

A

Molien was seen as a “direct victim” rather than a bystander suffering consequential damages in Dillon.

20
Q

Cali NIED

A
  • direct victim (molien)
  • stands in the path of neg
  • def. owes plntf a duty (usu. due to pre-exist spec. relationship)
21
Q

Proof of Emotional Distress

A
  • exceeds what is reasonable under circumstance (no egg-shell psyche rule)
  • objective manifestation of merely emotional injury (testimony family or dr.)