Other types of negligence Flashcards
NIED
Negligent conduct
It was foreseeable that the conduct would cause the p severe emotional distress
The conduct caused P severe emotional distress
- med mal (informed consent)
- false imprisonment
- Assaults or threatening conduct
- Personally observing neg caused harms to loved ones (accident scenes)
Look for physical manifestations of severe emotional distress
NC Wrongful Death Statute
The family of the P killed by the neg of the D may bring claims for:
P’s predeath hospitalization and tx
Pain and suffering
Funeral expenses
Lost income, services, companionship, and
Punitive and nominal damages
Defamation and false imprisonment do not survive the P, not eligible for claims by P’s family
Negligent hiring and retention
In NC an employer can be liable for neg hiring and retention when:
The P was harmed by employee’s neg
the employee was an incompetent employee
the D employer knew or should have known of employee’s incompetence, and
Injury resulted from the incompetence
Family purpose doctrine
Owner of family vehicle can be liable in addition to member of the family that was neg. when driving if:
The operator was living in the family home;
The car was owned, provided, and maintained for the family’s general use;
And the car was being so used at the time of the accident.
Owner liability
If the owner is in the car, the owner is liable for neg of driver.
Dram shop liability
An alcohol permittee can be liable for a minor buyer’s neg while intoxicated if:
D sold alcohol to minor;
Minor’s consumption caused him to be impaired;
and the P’s injury was proximately caused by the alcohol impairment.
Damages limited to 500K per accident, and the minor and the permittee are jointly and severally liable.
Social host liability
Can be liable for neg of intoxicated driver if:
The driver is a minor; or the driver is intoxicated and the host knows the person will be driving.
Sovereign immunity general rule
A sovereign is immune except when it says its not.
Proprietary function doctrine
If a gov. is acting as a gov. it is more likely to be immune, but if gov. acting in a proprietary function (as a private co.) no immunity.
In NC all tort claims against agencies and departments of the state must go to NC Industrial Commission first
If school board has insurance, can’t claim immunity
A public officer is immune from liability unless his actions were “corrupt or malicious” or if he acted beyond the scope of his duties.
An allegation of gross negligence or recklessness can overcome governmental function immunity
Intra-family Immunity
An unemancipated minor child may not maintain an action based on ordinary neg. against his parents. But the relationship of parent child shall not bar the right of action by a minor child against a parent for personal injury or property damage arising out of the operation of a motor vehicle owned or operated by the parent.
Doesn’t shield a parent who commits willful and malicious torts.
When doesn’t contributory negligence bar recovery in NC
Complete bar to recovery in NC: but
Not a defense to intentional tort
Not a defense to gross neg (recklessness)
Doesn’t apply when D had last clear chance to avoid the injury but did not
Last clear chance
The P, by her own neg, placed herself in a position of peril, from which she could not escape;
D saw or should have seen P’s peril;
D could have avoided the accident;
The D failed to avoid the injury;
and
P was injured as a result
P will not be barred from recovery, even though contributory negligent.
Assumption of the risk
Only when there is a contractual relationship in NC
