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Torts - Outline Part 4

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  • Negligent Emotional Distress Damages
  • Applies in direct victim cases:
    • Impact Rule
      • D causes impact on P but no bodily injury
      • Contact w person but no harm
      • Doesn’t require a physical manifestation
      • ALL jurisdictions allow this
        • Can recover under other circumstances
    • Zone of Danger
      • Near miss situation
      • Majority of jurisdictions would allow P to recover if mental distress manifests itself physically
    • Emergence Rule
      • Minority rule
      • No impact, zone of danger, and mental distress not manifested physically
      • Can recover if in circumstance of true mental distress
  • Bystander Rule
    • 3rd party witnesses something causing them mental distress
    • General rule = no recovery
      • However, can recover if:
        1. if related to party
        2. on scene when incident occurred
        3. suffering mental distress greater than normal

Standard of Care

  • The Reasonably Prudent Person
    • Has normal intelligence
      • Objective standard
      • Not adjusted for any cognitive disabilities of D
        • Mental health issues apply under this too
    • Has normal experience, perception, memory, or knowledge
      • Knowledge = starts at basic common knowledge and then based on community where D is
    • Has all the additional skill or knowledge as the actual D (all the mental attributes)
      • Takes on any positive additional attributes of D
      • Unique knowledge or skill of D taken into account
    • Has the physical attributes of the D himself
      • Subjective standard
        • Can be increased or diminished based on D’s physical condition
    • Exemptions:
      • Emergencies can apply
      • What doesn’t apply:
        • Mental illness
        • Intoxication
    • Children
      • Taken into account; can be liable for negligence
      • Age:
        • Generally starting around 4-5 y/o
        • Minority rule = rule of sevens
          • Children under 7 y/o deemed incapable
        • Age 18 = adult standard imposed
      • Compared to children of similar age, intelligence, and experience
        • Experience taken into account here; more than adults
      • When engaged in an adult activity = held to the standard of care as a reasonable adult doing that activity
        • Ex: driving
  • The Professional
    • Has additional specialized training
    • Standard of care:
      • Must possess + use the knowledge/skill common to members of the profession in good standing
      • Still an objective standard
      • Used as evidence:
        • Understood through expert testimony
          • Putting professionals on stand to explain the common practice specifically
          • Doesn’t have to be professional = must only be an expert within their field
            • Specialized knowledge + background
          • Malpractice = Expert testimony must be from someone trained in the field

Rules of Law (Negligence per se)

  • Negligence as applied to a statute or rule of law
    • Make sure to know where rule fits in the standard of care
  • Outside of jury determination
  • Application of a violation of statute
    • Statute must apply to facts
    • Consider:
      • Is P a member of a protected class?
      • Is the hazard one the legislature intended to protect against?
      • Is it appropriate to impose tort liability for violations of statute?
        • If case fails on any of these 3 requirements = NPC over
        • If it passes on requirements = court can choose to use it
    • Regular negligence (deviation from standard of care) charge can go forward even if this one fails
  • Court isn’t required to use a criminal statute in a civil case
    • However, the court has the ability to do so under certain circumstances
    • Statute in question becomes something like a rule of law to be applied
    • Reasonable care under the circumstances still applies
    • Stachneiwicz
      • Will use regulation as standard of care + means of statute if issue carries criminal penalty
    • Osborne v. McMasters = pharmacist giving improperly labeled poison
  • Licensing Statutes:
    • Not used to establish a standard of care in NPC issues
    • Must operate under reasonable care under the circumstances
      • Can be held to standard of care of the professional whose activity D engaged in
  • Safety statute:
    • Court has tremendous amount of discretion in using a statute as a safety statute
    • No obligation if issue is of first impression
    • Can refuse of use it; choice of application

Res Ispa Loquitor

  • Thing speaks for itself
    • Negligence so clear that it will be inferred from the circumstances; an obvious situation
    • Occurrence of the accident implies negligence
  • What P must show:
    • Not required to show direct evidence of D’s conduct/ how D behaved in connection w event
    • 2 part test:
      • Object causing harm was in exclusive control of D
        • Not due to P’s own conduct
      • Result would not occur commonly under standard of care; occurence is the product of negligence
  • Will need expert testimony
    • Subject beyond expertise of the jury
    • Has specialized knowledge or insight
  • Proving damages:
    • Usually monetary
      • Ex: medical expenses, lost wages, pain + suffering, etc.
  • Still must satisfy the other elements of negligence:
    • Some foreseeability in breach of duty
    • Cause in fact = essentially covered by RIL; just must prove that D’s negligence caused damages
      • Requires inference of causation for proving the damages
  • Medical malpractice = custom becomes the standard
    • Don’t need expert testimony to prove negligence
    • Locale = also an issue
      • Would need to call expert from locale of issue to testify regarding common practice/standard
    • The fact that an ideal outcome has not occurred isn’t always an indication of negligence
    • Specialists = held to a higher standard
      • From a standard of care to the standard of care of a specialist
      • Must bring in another specialist of the same kind to testify on the standard
    • If professional guaranteed outcome = not malpractice, but instead breach of contract

Defenses to Negligence:

  • Contributory negligence (NC)
    • Negligence committed by the P
    • Complete bar to recovery
    • Must be presented to jury
      • Question of the P’s role
    • If failure on the breach of duty argument, CN can be argued
      • Often very much linked based on the facts of the case

Joint and Several Liability

  • When two independent acts of negligence come together to cause a single harm, the injury is indivisible
    • Where neither one acting alone would not have caused the injury, each tortfeasor is responsible for the entire amount of damages
  • 3 ways to establish:
    • Indivisible harm
    • Acting in concert
    • Vicarious liability
Strict Liability (Faultless Liability)

Neither intentional nor negligent but D still held responsible

Miscellaneous Notes

12(b)(6) = failure to state a claim
Prima facie = at face value

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