Personal Injury, Workers Comp, ADA, Child Custody And Neglect Flashcards
Christie Bros v Turnage
1928
You can recover damages from mental suffering, humiliation, or embarrassment (considered personal injury)
ANY unlawful touching of a person’s body
Dillon v Legg
1968
Suffering emotional injury only (with no physical injury) can permit suing for negligence
Legg hit a child of Dillon, Dillon sued for emotional damages
Initial case was thrown out because Dillon herself was not in the “zone of danger,” however the CA SC reversed noting you don’t need to be within a “zone”
Closed enough to the scene, shock was a direct result of observing the accident, closely related to the direct victim
Tort
The event or events that give rise to a lawsuit
A “civil wrong” - requires a breach of duty
Three types of relief sought in civil lawsuits
Monetary damages for harm suffered
Injunction (prevents the defendant from doing something)
Specific performance (getting the defendant to do something they were supposed to do)
Cause of action
The elements for one of the various torts that are necessary for the legal theory of the lawsuit
Must prima facie (on its face) demonstrate wrongdoing
- One must prove liability to receive damages
Canterbury v Spence
1972
Plaintiff is responsible for all harm caused conduct, no matter how disproportionate it may seem
“Take the victim as he finds him”
Types of torts
Intentional torts - volitional act, tortfeasors goal was to cause harm, conduct caused the injury
Defamation - false utterance, must be about the plaintiff, transmitted to a third person, results in damage to plaintiffs reputation
Privacy torts
Strict liability - liability without fault
Negligence - no intention but a failure to act
Vicarious liability
Requirements for intentional torts
Defendant engaged in a volitional act
Intent - tortfeasors goal was to cause harm
Cause - conduct caused the injury
Elements of a defamation tort
(Libel is written defamation, slander is spoken defamation)
False, defamatory utterance
About the plaintiff
Transmitted in some form to a third person
Resulting in damage to the plaintiff’s reputation
Types of privacy torts
Appropriation - unauthorized use of image for commercial advantage
Intrusion - intrusion into plaintiffs private life
False light - misattribution of the plaintiffs values
Public disclosure of private facts
Strict liability
Liability without any kind of fault
Defendant engaged in an act so inherently dangerous that they do so at their own risk and accept any damages that result
Negligence
Duty
Breach
Damage
Nominal damages
Plaintiff proved liability but has suffered no harm
Receives a small amount of money
Compensatory damages
Most common type of damages sought
An amount to pay the plaintiff for actual losses suffered as a result of the injury (and nothing more) - could look like covering medical or mental health expenses, lost earnings, etc.
Loss of consortium
The loss of benefits of the relationship that one person is entitled to receive another (companionship, cooperation, sexual relations)
Punitive damages
Intended to punish the defendant for their blameworthy conduct, or to set an example to deter future behavior
The evaluation model for personal injury cases
Determine the presence of sxs in four areas:
Cognitive, affective, physiological, and interpersonal
And how they impact functioning in four ways:
ADLs, relationships, workplace, and hedonics (quality of life)
Five distinct time intervals for evaluating personal injury
Time before the tort occurred
Time during which the tort occurred
Time since the tort up until the evaluation
The evaluation
Projecting into the future
Legal test for workers compensation
Whether there is a connection between work activities and the injury
Burden of proof for workers comp cases
Preponderance
Three major types of workers comp
Total disability - paid out over lifetime or large number of weeks
Permanent partial disability - percentage of total impairment
Temporary total/partial disability - paid weekly for the duration of the disability
What a beneficiary must demonstrate for workers compensation
Injury or disability
Arose out of employment (during normal work hours doing normal duties)
Is accidental/unanticipated
Three kinds of emotional damages cases
Workers compensation
Physical trauma causing mental injury
Mental stimulus causing physical injury (protracted stress leading to heart issue)
Mental stimulus causing mental injury (seen as less legitimate)
Commonality between tort law and workers compensation
Both require proximate cause
Aka. Recent cause, straw that broke the camels back
Most important kind of testing to workers compensation cases
Response bias and impression management
Impact of diagnosis on workers compensation cases
Compensation does not hinge on diagnosis alone, you can have no formal diagnosis (ex. Experience headaches, irritability) and still be entitled to compensation
How to establish proximate cause
Have some knowledge of the alleged event (accident)
Know what research suggests may be common sequelae
The fact finder ultimately decides if there is proximate cause
Prognosis in tort and workers compensation cases
Tort prognosis - related to the damage award the plaintiff will receive
WC prognosis - used to determine the likely duration of the impairment caused by the injury
How disability is defined in tort and workers compensation cases
Tort - disability is defined by case law
(Can win a LOT of money…wild wild west)
Workers compensation - disability is defined by statute in your jurisdiction
(Pay out amounts are fixed)
Four main ways to obtain benefits when your ability to work is compromised
Private disability insurance - privately purchased, commonly seen in self-employed arena
Employer-paid disability insurance - provided as part of employer-provided health benefits
Workers Compensation - illness or injury MUST be related to the work
Social security disability - eligibility is contingent on work history and contributions to the social security system
Leading causes of disability in the US
For those between ages 15-44
Depression
Four domains of consideration for sx exaggeration in disability claims
Motivation and incentives
Atypical, exaggerated, incongruent symptoms
Discrepancies in interviewer presentation/noncompliance
Activity outside the interview (noncompliance with tx)
Doctor-patient duty case law
Ryans v Lowell - no malpractice if no relationship
Ervin v American Guardian Life Insurance Co - no relationship if a doctor conducts a file review for an insurance company
Case law for disability as it pertains to loss of job
Damascus v Provident Life and Accident Insurance Co - if negligence is the reason for your loss of license, companies can refuse to pay out
Massachusetts Mutual v Ouellette - inability to work because of a criminal conviction isn’t compensable
Meritor Savings Bank v Vinson
1986
Hostile work environment sexual harassment is a form of sex discrimination that is actionable under Title 7 of the Civil Rights Act
Olmstead v L.C. ex rel Zimring
1999
Financial constraints cannot entirely determine whether states comply with the 1990 ADA guidelines concerning placement in community treatment for the mentally disabled
Americans with Disabilities Act
Those with disabilities must be treated (like?) other people unless it could be demonstrated that a persons disability creates substantial barriers to their employment or other things
Who ADA is designed to protect
A QUALIFIED individual with a DISABILITY who, with or without REASONABLE ACCOMMODATION, can perform essential functions of the employment position that such individual holds or desires
(Qualified individual, disability, reasonable accommodation)
“Qualified individual”
Per ADA
Must meet necessary job prerequisites (training and experience)
Must be able to perform essential functions of the job
(To keep people from claiming disability based on being unqualified)
- You can meet the “disability” standard and not be a qualified individual
“Disability”
Per ADA
Physical or mental disability that “substantially limits” a “major life activity”
Treatable disabilities are still disabilities
Not included: drug use, sexual orientation disorders, criminal pathology
Included: walking, speaking, learning, sitting/standing, interpersonal skills, cognitive processing…
3 prongs (only need to have one): limits major life activities, record of impairment exists, being regarded as having such impairment (???)
“Reasonable accommodation”
Per ADA
Includes modifications or adjustments to the job application process, work environment, or other changes that allow the employee to enjoy equal benefits and privileges of employment as they are enjoyed by others
Employers are only required to accommodate KNOWN disabilities
Reasonable doesn’t have to mean best possible
Cannot cause the employer undue hardship
How the ADA limits rather hiring process
The types of questions an employer can ask an applicant
The types of tests that can be administered before and after a job offer
Rules for the administration of the tests
Fair Housing Amendments Act
Prohibits discrimination in the sale or rental of housing on the basis of handicap
Goal is to integrate those with disabilities into American life, allowing them to live where they want to
Must be “qualified for tenancy” // cannot pose “a direct threat”
SSI vs SSDI
SSI - available to anyone meeting eligibility criteria, regardless of work history of proof whether they’ve paid taxes
SSDI - functions as an insurance program, providing benefits to those who have worked and paid into social security fund in 20 of the last 40 calendar quarters
Determining eligibility for SSI or SSDI
Whether the person has a disability - an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of no less than 12 months
(Can’t engage in substantial gainful activity, physical or mental impairment, could result in death or impairment for at least 12mo)
Domains for potential impairment for social security
Acquiring or using new information Attending to and completing tasks Interacting and relating with others Moving about and manipulating objects Caring for self Health and physical well-being
What to use for a social security eval
Psychiatric review technique form
Residual functional capacity assessment form
And a clinical interview, testing if appropriate, etc.
Reasons an immigrant can petition for relief (not be deported)
Asylum Hardship (if a caregiver to someone already here legally) Risk for torture Domestic violence Abused, neglected, abandoned children
If you’re doing an ADA evaluation for safety (risk)
Consider the duration of the risk, nature and severity of the potential harm, likelihood that potential harm would occur, and the imminence of the potential harm
What do employers need to do for an ADA risk eval
Specifically identify the behaviors of concern that constitute a threat
(The mere presence of a psychiatric diagnosis is not sufficient)
Major question in return-to-work evaluations
Has the worker regained a level of functioning so that he or she would qualify as a “qualified individual with a disability?”
Four opportunities for evaluations in litigation-based ADA claims
Allegations the employer failed to provide reasonable accommodation
Disparate treatment and disparate impact (when a similarly situated employee without disability would have received better treatment)
Reprisal for protected conduct (employee files EEOC claim and is retaliated against)
Disability harassment or hostile work environment
Individuals with Disabilities Education Act
Children with disabilities are entitled to the same education as their nondisabled peers
Provides “free and appropriate” public education in the “least restrictive environment” for all disabled kids
Places the burden on the school to prove removing a student from a mainstream class is the least restrictive option
Case law for IDEA
Brown v BOE - no “separate but equal” race discrimination, personalized instruction with sufficient support services to allow the child to benefit from the education
P.A.R.C. v Commonwealth of PA - schools can’t deny admission based on disability
Mills v BOE - PARC extends to emotional disability, school can’t use “lack of funds” as an excuse
Who does IDEA cover
Guarantees those up to age 22, who have a disability, free and appropriate public education and related services in a least restrictive environment
IEPs
Evaluations occurs once per year
Evaluation goals every year must be “measurable”
Must include standardized assessments
In addition to describing the disability, accommodations, etc.
Individualized family service plan
Similar to an IEP abut the focus is on the whole family, and the plan is geared towards children under the age of 6 who are at risk for developmental delays
“Difference dilemma”
You need to identify special needs of children under IDEA, but do so in a way that is not stigmatizing nor highlights differences
What does it mean to consider a students “ecology” when doing IDEA evals?
Take into account the various systems within which the particular child may interact
Tender years presumption
From birth to 7yo, the best interest of the child was to be with the mother
Freudian principles, largely ignored dad
19th century
BIOC
Late 1960s
Tender years became BIOC, researchers started paying attention to the role of dad
In re Bort
First spoke of BIOC in 1881 (children aren’t chattel)
(In addition to Chapsky v Wood, 1881)
BIOC was later solidified in Findlay v Findlay (1925)
Uniform Parentage Act
1970s
Eliminated measures that discriminated against illegitimate children
(Also gave notice to dads who wanted full custody, race issues, etc.)
What factors constitute BIOC
No idea, it varies based on jurisdiction and some states don’t even try to define it
Approximation rule
2002
Custodial responsibilities should be approximate to the amount of time and caretaking each parent did with the child prior to separation
Parenting Plans
Can range from informal agreements to written and court sanctioned documents
Address issues of legal custody and physical custody
Legal custody v physical custody
Legal custody - care, control, maintenance of the child…which parent has control over the child (schooling, medical, etc.)
Physical custody - where the child resides and who is responsible for day to day care, where the child will go for certain holidays
Three prongs of child custody evaluations
Parenting attributes
Child’s developmental needs
Fit
Impact of Griggs v Duke Power Co (1971)
Unrelated to child custody
Assessments must be demonstrably reasonable measures of job performance
You can’t give measures to parents that measure attributes unrelated to parenting (e.g., psychopathy)
Otto and Edens three-part model to assessing functional abilities in child custody evaluations
Parents characteristics and abilities to care for children
Assessment of the caretakers knowledge, understanding, beliefs, values, attitudes, etc. pertaining to parenting the child
Goodness of fit - specific functional abilities each parent has or needs to meet the unique developmental needs of each up child
What is gatekeeping
Child custody
One parent attempting to block or limit access to the other parent
Relocation analysis
Investigate the advantages and disadvantages the proposed move would have on the child’s QOL
The genuineness of the move and motives for and against it
Whether there can exist a realistic and substitute visitation arrangement that will adequately foster an ongoing relationship between the child and the noncustodial parent
Uniform Marriage and Divorce Act
Tries to define BIOC…
Wishes of parents
Wishes of child
Interaction of the child with parents, siblings, etc.
Adjustment to the home, school, and community
Mental and physical health of all involved
Uniform Deployed Parents Custody and Visitation Act
Bars consideration of deployment and relocation from being considered in custody disputes
Painter v Bannister
1966
BIOC case
Kid had stronger relationship with his grandparents, dad was a hippie
Santosky v Kramer
1982
Child custody
For legal termination of parental rights, courts must use the clear and convincing standard
Juvenile Justice Standards of child maltreatment
Defines if a child has suffered, or is at substantial risk of suffering non-accidental physical harm
Designed to prevent broken bones, burns, internal injuries…not small bruises, small black and blues, etc.
More or less requires a finding of serious physical harm before a child can be said to have been neglected
Two questions often included in abuse and neglect INVESTIGATIONS (and evaluations)
What happened?
What can we do about it?
Maryland v Craig
Must give special consideration to the child in determining if they need to be required to testify in child abuse and neglect cases
Things to consider in parental termination evaluations
If the child was abandoned
If the child had been previously removed because of maltreatment
If another child in the family has been abused, requiring treatment for the parents
Incorrect assumptions about IPV
Men abusive towards their wives will be abusive towards their children
Relationships with (abusive) fathers is always important
Women in abusive relationships are always preoccupied with their own safety to care adequately for their children
Kinship evaluations
Placing children with family or in families that they know/trust instead of in foster care
Appears preferable for the kiddos, reduces trauma, reinforces esteem and culture, continuity of community support…
However, there are often far fewer resources for kinship “parents” than there are foster parents
Parental traits that could lead to maltreatment and abuse
Unrealistic expectations
Harshness
Rigidity
Attachment theory and child neglect/abuse
Bowlby and Ainsworth
Physically abusive and neglectful parents will display less positive and responsive behavior towards their children
Disorganized attachment styles put children at risk for psychopathology
Parenting style and child neglect/abuse
Baumrind
Parenting on dimensions of demandingness and responsiveness…
Physical abuses and neglect through to arise from those parenting in the extremes of authoritarian and uninvolved parenting styles
Ecological systems theory and child abuse
Bronfenbrenner and Belsky
Children develop in a multilevel system of relationships - there are many pathways to abuse and therefore many pathways to treatment and intervention
Treatments aimed at single factors are likely to be unsuccessful
Child abuse and parenting measures for evaluations
Child abuse potential inventory (CAPI)
Parenting stress index (PSI)
Things to consider when performing “bonding assessments”
Who a child has bonded to most
How removal from the foster family may impact the child
Caregiving strengths and limitations of the original parent(s)
Positive and negative factors associated with returning the child back to the parents
Landerlos v Flood
1976
A physician who fails to diagnose battered child syndrome can be found liable for subsequent injuries to the child
Chapsky v Wood
1881
Tender years case - children do best by being with their mother
Three main perspectives for child abuse and neglect reporting
Child savers - err on the side of ensuring protection of the children (can be destructive to the families)
Juvenile justice standards - limits involvement to situations where the child HAS suffered
Goldstein et al - even higher than JJS…if you cross this bar parental rights are being terminated
