Torts for Final 2

Question 1

When do you get emotional distress? Dillon v. Legg (Exception to the Rule)

Answer 1

1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.
2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident as contrasted with the learning of the accident from others after its occurrence.
3) Whether Plaintiff and victim were closely related as contrasted by a distant relationship.

Question 2

Emotional Distress from Thing v. LaChusa.

Answer 2

converts the “factors” of Dillon v. Legg into “elements”

1) the plaintiff is closely related (by blood or marriage) to the injury victim
2) the plaintiff is present at the scene of the injury-producting event at the time it occurs and is then aware that it is causing injury to the victim and,
3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.

Question 3

Vance’s traditional Rule for collecting damages for mental distress.

Answer 3

Recovery is dependent upon an immediate physical injury accompanying an independently actionable tort.

Question 4

When two people are careless… traditional treatment.

Answer 4

The carelessness that was last in time is treated as THE legal cause.

Question 5

Multiple-cause approach to proximate cause (modern view) with a jurisdiction applies traditional contributory negligence.

Answer 5

Last clear chance. . . .
The person who had the last clear chance to act will be more at fault. The person gets the full recovery, even if they were found to be a certain percentage liable.

Question 6

When two parties were both negligent (even if one party is more negligent than another party), which party collects?

Answer 6

Neither. Nothing is paid to either party.

Question 7

Comparitive Negligence

Answer 7

Allow the jury to arrive at a conclusion of liability

Question 8

Modified Comparative Negligence

Answer 8

1) P must show either that he’s less at fault than D, or that he’s no more at fault than D.
2) States doing this may retain last clear chance.
3) This allows for a percentage of recovery based on a finding of percentage of liability.

Question 9

Rules Addressing the Plaintiff who Encounters a Risk

Answer 9

1) Expressed
2) Implied in Fact (amusement rides)
3) Implied in Law (some states protect defendants by saying they have no duty to the trespasser)

Question 10

Implied-ln-Law Assumption of Risk

Answer 10

Plaintiff encounters a D ptected by such a doctrine at his own risk.

Question 11

A reasonable encounter of a risk is:

Answer 11

Not Negligent

Question 12

Assumption of Risk elements

Answer 12

1) Rully understands a risk of harm to himself or his things.
2) Caused by the D’s conduct or condition of land/chattels
3) Nevertheless voluntarily chooses to enter or remain.
4) Under circumstances that manifest his willingness to accept it.