PI + Civil Damages

Question 1

What is a tort?

Answer 1

The event(s) that give rise to a lawsuit. a civil wrong for which the law provides a remedy. Involves a breach of duty that the law imposes on persons who stand in particular relation to one another.

Question 2

What are 2 common referral q’s for cases involving cognitive injuries or emotional harm?

Answer 2

1) whether the plaintiff was harmed by the acts of the defendant
2) If harmed, what type and degree of harm did they suffer?

Question 3

What is the purpose of torts?

Answer 3

Society decided the vics need to be compensated, and that harmful behavior needs to be discouraged.

Question 4

What are 3 types of relief typically sought in civil lawsuits?

Answer 4

Monetary damages for harm suffered, injunction (prevents def from doing sthg), and specific performance (Gets the def to do sthg they were supposed to)

Question 5

Why is Mitchell v. Rochester Railway Co (1986) historically important in personal injury?

Answer 5

The court rejected the notion that one can sustain an emotional injury without physical injury. If distress alone was recognized, then people would feign emotional injury.

Question 6

What legal principle has been used in creating laws about PI?

Answer 6

Stare decisis.

Question 7

When did courts begin to allow for emotional damages?

Answer 7

When the plaintiff was the victim of intentional torts (E.g., assault, battery, false imprisonment).

• Note: plaintiffs had to prove the physical manifestation of emotional injury (e.g., headaches, nausea, shocks to the nervous system)
• second half of 20th c is when we start to see emotional damages obtained in the absence of physical injury.

Question 8

What is “cause of action” in PI?

Answer 8

Encompasses the elements for one of the various torts that are necessary for the legal theory of the lawsuit. A plaintiff must present a case that prima facie/on its face demonstrates wrongdoing.

Like a probable cause affidavit for PI

Question 9

If the plaintiff is successful at trial, they are entitled to a judgment of WHAT?

Answer 9

Liability = the state of being legally accountable or responsible to another. This allows one to get damages.

Question 10

What are the two elements of burden of proof?

Answer 10

1) Burden of production (plaintiff/the party that has to prove what is being alleged)
2) Burden of persuasion (the amount of evidence needed to meet their burden of production, whether it be preponderance, C&C, BARD)

Question 11

What is the “eggshell-skull” concept in PI, and what case law talks about this?

Answer 11

Egg-shell plaintiffs are people who claim disproportionate damages due to an emotional injury. Canterbury v. Spence (also came up in informed consent section) says “take the victim as he finds him” even if it seems disproportionate.

Psychologist needs to determine if injuries were disproportionate yet real, and to what degree was the plaintiff already damaged before the tort.

Question 12

What are the 6 types of torts?

Answer 12

PINS DV

Privacy torts
Intentional
Negligence
Strict liability
Defamation
Vicarious liability

Question 13

What are intentional torts?

Answer 13

Requires general or specific intent by the tortfeasor. If the plaintiff can prove the required level of intent, they receive damages. Must prove: (1) defendant engaged in a volitional act, (2) the tortfeasor specifically intended to cause the injury or they acted with substantial certainty of the consequences, (3) the conduct was a substantial factor in bringing about the injury.

Question 14

What are defamation torts?

Answer 14

Claims of harm to potentially both economic and dignitary interests that can impact the plaintiff’s emotional functioning. Libel = written defamation. Slander = spoken defamation.

Question 15

What are the elements of defamation cases?

Answer 15

1) False, factual, defamatory utterance
2) about the plaintiff
3) transmitted in some form to a 3rd person
4) resulting in damage to the plaintiff’s reputation

Question 16

What are the 4 types of privacy torts?

Answer 16

1) Appropriation - def made unauthorized use of the plaintiff’’s picture for commercial advantage
2) intrusion - a highly offensive intrusion into plaintiff’s life
3) false light - misattribute views plaintiff doesn’t hold or actions that would be objectionable to a reasonable person
4) public disclosure of private facts - public retaliation of a person’s private life when there is no legit purpose.

Question 17

What is strict liability?

Answer 17

Liability w/o fault. Defendant is responsible for damages as they engaged in an act so inherently dangerous that they did so at their own risk (e.g., own wild animals, possess explosives/poison). Plaintiff need not prove the def acted unreasonably, but just show injury from the conduct.

Question 18

What is negligence?

Answer 18

No allegation of intent, but instead a failure to act in a way that a reasonable person would have acted. Main way in which PI, malpractice, and other emotional damage claims are brought to the court.

Question 19

What are the four elements of torts in general?

Answer 19

1) Duty - def had duty to conform to specific standard of conduct in protecting others from unreasonable risk of injury
2) Breach - Breached the duty to act reasonably by action or failure to act (e.g., broke the law or did not secure safety belt on rollercoaster)
3) Cause - breach of duty was both the actual (but for test) and proximate cause (foreseeable cause) of injury
4) Damage - plaintiff suffered injury to property damage

Violation of duty can be intentional, negligent, or neither (strict liability)

Question 20

What are the components of duty?

Answer 20

1) Created by relationship or status, either to a specific person or society
2) Requires foreseeability, that a reasonable person could have predicted the outcome
3) Standard of care - must be est to show there was a departure from what a reasonable person would have/should have done.

Question 21

What is vicarious liability?

Answer 21

Imposed on a party for a tortious act committed by another (e.g., employers or superiors are liable for the negligent actions of their employers if acts within scope of employment/supervisory rel(.

Intentional torts not attributable to employers, as it’s not within scope of job.

AKA respondeat superior.

Question 22

What is negligent infliction of emotional distress?

Answer 22

• Negligence only, no intent or recklessness.
• Elements (duty, breach, cause, damage) same.
• Duty is breached when the def creates a foreseeable risk of physical injury to the plaintiff through physical impact of threat.
• Plaintiff must be in zone of danger created by negligent conduct

Question 23

What is intentional infliction of emotional distress?

Answer 23

Only tort w/o physical manifestation/injury.
(1)An act by the def amounting to extreme and outrageous conduct (violates sense of decency, shocks the conscience), (2) intent or recklessness, (3) causation, (4) damage of severe emotional distress.

Question 24

Mitchell v. Rochester Railway Co (1896)

Answer 24

A plaintiff was frightened by a horse-drawn car that suddenly turned toward her, and she miscarried. Medical testimony said severe distress could cause this. Court denied liability and judgment bc the only harm was emotional; it was concerned that distress could be malingered if physical injury was absent.

Question 25

Christie Bro Circus v. Turnage (1928)

Answer 25

The spinster was shit on. The poop touching her equated to unwanted touching or physical injury (even tho no injury results), and she was allowed to collect damages.

Question 26

Palsgraf v. LIRR (1928)

Answer 26

LIRR employees were helping someone board a train, but dropped their package of fireworks, causing it to explode. Palsgraf was unable to collect damages bc she was outside the zone of foreseeable danger - the LIRR employees had no idea the package had fireworks.

Question 27

Waube v. Warrington (1935)

Answer 27

Mrs. Waube saw her daughter hit and killed by a car and allegedly died from “nervous shock.” Her husband filed suit, but could not be awarded damaged for his deceased wife as she was outside the zone of danger (emo injuries not foreseeable by the driver).

Question 28

Dillon v. Legg (1968)

Answer 28

Plaintiff brought suit for having watched her child die at the hands of negligent operation of a motor vehicle, but was also not in zone of proximate danger and was a few feet away. Court in CA deemed being the mother of a dead child was a foreseeable victim in the case.

Question 29

Dillon v. Leg outlined 3 factors to limit recovery of bystanders.

Answer 29

1) Plaintiff was near the scene of accident.
2) Plaintiff actually witnessed the accident
3) Plaintiff and victim were closely related

Question 30

Thing v. La Chusa (1989)

Answer 30

Mother nearby when her son was struck by motor vehicle, but did not hear or see the accident, although learned about it when her daughter (Who witnessed it) told her. Mom then rushed to the scene and saw her son’s body. First court ruled in favor of mom by expanding Dillon v. Leg to a degree, but the appellate court overturned for a strict interpretation of bystander recovery (formalizing the guidelines from Dillon).

Question 31

Molien v. Kaiser Foundation Hospitals (1980)

Answer 31

Wife was misdiagnosed with syphilis, causing tremendous marital strife resulting in divorce. Husband sued alleging negligent misdiagnosis resulted in the termination of the marriage, and sought damage for emotional distress. Mr. Molien claimed to be a “direct victim” of the misdiagnosis. Court ruled he was a foreseeable victim as the husband.

Question 32

Nominal damages

Answer 32

Plaintiff has proved liability but not suffered significant harm (so receive a very small amount of money, may be as low as $1.00)

Question 33

Compensatory damages

Answer 33

Most common type. An amount to pay the plaintiff for actual losses suffered as a result of the injury (and nothing more). Might include medical or MH expenses, lost earnings, pain and suffering (fright, shock, depression, humiliation…). Made up of both special and general damages.

Question 34

Special damages

Answer 34

Compensatory damages that are predicated on measurable dollar amounts of actual loss (out-of-pocket expenses such as medical bills or lost wages) that vary from person to person based on their unique case; they must be specifically alleged and proved.

Question 35

General damages

Answer 35

General damages represent the types of damages that can’t easily be assigned a monetary value, such as pain and suffering, loss of consortium and emotional trauma. Compensation that the law presumes will occur following the injury (include pain and suffering, mental distress, or loss of consortium).

Question 36

Future damages

Answer 36

Monies awarded to an injured plaintiff for the residual and projected effects of the injury (future loss of earnings, future medical costs… difficult to estimate in emotional distress cases).

Question 37

Loss of consortium

Answer 37

The loss of benefits of the relationship that one person is entitled to receive from another (companionship, cooperation, aid, sexual relations if between spouses), often arises when a spouse is killed by the tortfeasor and the surviving widow can sue (or when a child is killed).

Question 38

Punitive damages

Answer 38

Intended to punish the defendant for their blameworthy conduct or to set an example to deter future similar acts from others (exemplary damages) - often awarded when the defendant committed the act with intent, malice, deceit, or recklessness; can be awarded in addition to compensatory damages.

Question 39

In what elements of tort cases do psychologists play a role?

Answer 39

Causation and damages

Question 40

What category of symptoms should one assess in torts/emo damages?

Answer 40

Cognitive (1st thing to assess for as often affected by anx and affective do)
Affective (2nd thing to look for as it affects fx)
Physiological (sleep dysregulation, tremor, tension, sweating)
Interpersonal

Question 41

What is the Restatement of Torts in 1948 important?

Answer 41

Intro of intentional infliction of emotional distress. If it can be proven the bad conduct was intentional or reckless, and it was “outrageous,” one can collect damages.