Pre-Midterm Flashcards
2 Types of Negligent Infliction of Emotional Distress
Direct and Bystander
What is the traditional “impact” rule? Minority
The traditional rule for direct NIED is the “impact” rule, requiring a plaintiff to have experienced physical impact in order to recover for NIED.
MINORITY
What is the modern rule for direct NIED?
“Risk of Impact” -The modern rule for NIED requires the plaintiff exhibit a physical manifestation of severe emotional distress and be within the zone of danger in order to recover under NIED
MAJORITY
What are the two rules under bystander NIED?
“Zone of danger” rule and “Dillon v. Legg Rule
What are the elements of the “zone of danger rule”?
MAJORITY RULE
- Plaintiff must contemporaneously perceive
- A severe injury
- Of an immediate family member
- And be within close enough proximity
- So as to fear for his or her own life
What are the elements of the Dillon v. Legg rule?
MINORITY RULE
- Distress must be reasonably foreseeable
- Plaintiff must be near the scene of the accident
- P must have sensory and contemporaneous observation of the accident
- And be in a special relationship with the victim
What is the traditional view of landowner liability?
Premises liability was traditionally determined by a trichotomy which determines liability based on the status of trespasser, licensee, or invitee.
What is a landowner’s duty to a trespasser?
Generally, a landowner owes no duty to a trespasser. However, there are three exceptions. A landowner may owe a duty to warn when she knows that there is frequent trespassing, when she discovers a trespasser, and for child trespassers.
What is a licensee and what duties does a landowner owe to a licensee?
- A licensee has consent to be on the landowner’s property as a social guest and not for a business purpose.
- A landowner has a duty to warn licensees of known dangers.
- No duty to warn of obvious dangers or inspect or repair.
What is an invitee and what is a landowner’s duty to an invitee?
- And invitee has consent to be on the landowner’s property for a business purpose.
- A landowner has a duty to reasonably inspect, warn of known and obvious dangers, and make the premises safe for invitees.
What are the elements of attractive nuisance?
In order to establish liability under the attractive nuisance, it must be 1) foreseeable that a child may trespass, 2) there must be an unreasonable risk of harm caused by an artificial condition, 3) it must be foreseeable that a child of that age might fail to overlook or fail to appreciate the risk, and 4) the burden of avoiding the risk is reasonable.
What are the elements of strict liability?
1) the nature of the D’s activity imposed an absolute duty to make safe
2) the dangerous aspect of the activity is the actual and proximate cause of the harm
3) the P suffered damage
What are the elements of strict liability for ultra hazardous activity?
- A high degree of risk of serious harm to others
- Risk cannot be eliminated by the exercise of reasonable care
- Activity is not common or appropriate for the place in which it is carried on
- Danger outweighs the activity’s value to the community
What are the limitations on strict liability?
- Only applies to foreseeable plaintiffs
2. Damage must arise from the activity’s normally dangerous propensities
What is the rule for strict liability for injury caused by wild animals?
A D will be held strictly liable for injuries caused by wild animals so long as the plaintiff did nothing consciously to provoke the animal and so long as the injury is consistent with the animal’s dangerous propensities.
What is the rule for strict liability for injury caused by domestic animals?
A D will not generally be held strictly liable for injuries caused by domestic animals unless the D knew or should have known of the animal’s dangerous propensities.
Otherwise, negligence may apply.
What are the 2 exceptions for strict liability for animals?
Zoos and parks
What are the types of vicarious liability?
- Respondent superior
- Joint enterprise
- Automobile owner and driver
What is vicarious liability?
Vicarious liability imposes liability on a third person who is held responsible for a tortfeasor’s actions based upon a special relationship. The types of special relationships include family relationships, employment relationships, and joint ventures.
What is respondeat superior and what are the elements?
Respondeat superior imposes liability on an employer for the torts committed by an employee, regardless of fault. The employer will be held liable when:
1) the tortfeasor was acting within the scope of the employment
2) the action was furthering the benefit of the employer
What are the limitations of respondeat superior?
Frolic and detour:
Traditionally- employer is only liable if accident occurred while returning to business from frolic
Modern- employer is liable if detour is reasonably foreseeable
Employer gen. not liable for intent. torts unless it furthers the business
Commuting to work is generally outside the scope of employment
What is the rule for independent contractors under respondeat superior doctrine?
Employers are generally not liable for torts committed by independent contractors unless: NUN
1) non-delegable duty
2) ultra hazardous
3) negligent hiring
What is joint enterprise and what are the elements?
All members of a joint enterprise are vicariously liable for the torts of one another where: MAC
1) there is mutuality of control
2) members are acting in agreement
3) there is a common pecuniary purpose
Automobile owner and driver liability
Majority: auto owner is NOT vicariously liable for conduct of another person who drives the car
Minority: car owner liable for tortious conduct, torts committed by household family members, negligent parents
What is proximate cause?
Proximate cause is the element of negligence which determines whether the the type and extent of the injuries were reasonably related to the breach of the duty of care.
What is an intervening cause?
A force that comes into play after the tortious conduct causing injury and does not necessarily break the chain of causation that would bar a P from establishing prox cause
What is a superseding cause?
The type of intervening force which breaks the chain of proximate causation between D’s negligence and P’s harm and thus absolves the D of legal responsibility
Rescue Doctrine
Justice Cardozo famously said, “danger invites rescue.” Rescue is a foreseeable response to a D’s act and will generally not be considering superseding unless the rescue was grossly negligent. D may be liable to person being rescued and rescuer.
What is the foreseeability test with regard to intervening cause?
Generally courts use a foreseeability test to determine whether a particular cause is intervening.
1) if D should have foreseen the possibility of the occurrence
2) whether the kind of harm was foreseeable
Foreseeable intervening causes
The negligence of third persons may be an intervening force that is sufficiently foreseeable and will not relieve D of liability
Foreseeable negligence
The negligence of third persons may similarly be an intervening force that is sufficiently foreseeable and will not relieve D of liability
Criminal conduct or intentional torts
Criminal conduct or intentional torts may be foreseeable and not superseding
—But most courts are likely to find this as superseding
Aggravation of injury from med. mal.
D is liable for the following medical malpractice that may occur from being treated for the injury that D caused
—unless the malpractice was gross negligence
Unforeseeable intervention, foreseeable result
If an intervention is neither foreseeable or normal, but leads to the same type of harm as that which was threatened by D’s negligence, the intervention is usually NOT superseding
Unforeseeable intervention, unforeseeable results
If an intervention was not foreseeable or normal, and it produced results which are not of the same general nature as those that made D’s conduct negligent, the intervention will probably be superseding
