TORTS II OUTLINE
1. Negligent Infliction of Emotional Distress [NIED]
a. IIED [majority]
i. Direct Action
1. Scienter- Intent or Recklessness
2. Actual Cause- But for or Substantial Factor
3. Legal Causation- Extreme and Outrageous Conduct
4. Damages- Severe mental distress
ii. Indirect Action- Bystander Recovery
1. Additional Legal Causation Limitations
a. Close relatives, present at the scene of the incident, the defendant knows the person is present
b. NIED [majority]
i. Generally, courts are reluctant to apply NIED.
ii. Direct Action
1. Scienter- Negligence [Duty and Breach of Duty- can be Negligence Per Se (negligence established by statute)]
2. Actual Cause- But for and Substantial Factor
3. Legal Causation- Risk of Physical Impact [within the “Zone of Danger”] → courts then presume you were foreseeable
4. Damages- Severe mental distress that is manifested by physical symptoms.
iii. Indirect Action- Bystander Recovery
1. Additional Legal Causation Limitations
a. (1) Close relatives, (2) also in the “Zone of Danger,” (3) witness the harm
2. Derivative Action
a. Negligence Established first in case between ∆ and PL
b. Then the Bystander can prove NIED
c. NC Approach to Negligent Infliction of Emotional Distress [NIED] (minority)
i. Direct Action
1. Scienter- Negligence: Duty and Breach of Duty
2. Actual Cause- But for or Substantial Factor
3. Legal Causation- Foreseeability [of injury] Test Applied (do not have to be in “Zone of Danger”)
4. Damages- Severe mental distress that is manifested by physical symptoms.
ii. Bystander Action
1. Additional Legal Causation Limitations
a. (1) Close relative, (2) must witness the harm, and (3) suffer serious emotional distress.
b. [No Zone of Danger necessary]
d. Emotional Recovery outside of IIED or NIED: Parasitic to another tort if there is impact.
2. Loss of Consortium
a. Proper Plaintiff
i. Third Party [not victim]
ii. Typically spouse but some jurisdictions have allowed children.
b. Type of Injury
i. Serious injury but not death.
c. How the Loss of Consortium injury differs from IIED/NIED
i. Loss of Consortium is harm that occurs over a period of time.
ii. IIED/NIED- harm that occurs one moment in time.
3. Emotional Harm outside of Zone of Danger [exceptions to NIED]
a. Treatment of Dead Bodies (majority)
i. Majority – allow recovery for the negligent mishandling of dead bodies.
ii. Minority- no recovery because not in the zone of danger.
b. Risk of Physical Peril Test
i. Objective test of whether they were at risk of peril
ii. Heiner [586]- Nonexistent physical peril [tested negative for AIDS] never in zone of danger so even though it was reasonable apprehension it was not objective= no recovery
c. Fear of Future Harm (toxic tort)
i. Two Pronged Test for establishing Toxic Tort
1. The plaintiff must have been exposed to the toxic substance due to the defendant’s negligence.
2. Fear must stem from knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the PL will develop the cancer in the future due to the exposure.
ii. Exception (as established by Potter)
1. If defendant’s acts were malicious, wanton, intentional… etc. standard is lowered. Recover even if it’s not likely that cancer will develop.
d. Hartwig v. Oregon Trail Eye Clinic [596]
i. Never at risk of physical peril [tested negative] but she had a small needle prick [impact allows ignoring zone of danger rule] – so he won.- Objective criteria- impact must cause fear/emotional damage
4. Pre-Birth Torts
a. Prenatal Injury
i. Plaintiff: Child
ii. Rule: To recover for prenatal injury, a child must be
1. Child is born alive (may sue wrongdoer); or
2. If the child is stillborn and was still viable at the time of injury.
b. Wrongful Birth
i. Who is the plaintiff: Mother
ii. What damages are available:
1. Compensatory (cost during pregnancy and delivery)
2. Extraordinary damages (if child is born with deformities- extra cost of paying for handicap)
a. But none for regular child rearing only those above and beyond regular child
iii. Duty and Breach of Duty:
1. Negligence is Defendant’s failure to diagnose or inform mother of the genetic defects of her fetus.
iv. Rationale for recovery:
1. By failing to disclose information you have taken away the mothers right to decide whether to abort the baby.
c. Wrongful Life
i. This tort is generally not accepted. You can basically ignore this cause of action.
ii. Action by child against wrongdoer.
d. Wrongful Conception
i. Medical provider botches up vasectomy or tubal ligation. [medical malpractice]
ii. Recovery for the family’s choice to limit their family size for whatever reason.
1. Damages = prenatal care and delivery costs (at a minimum.)
iii. Allows for damages for birth of unwanted healthy or unhealthy children.
5. Actions After Death
a. What is the triggering event for a survival action and a wrongful death action? A dead guy.
b. What is the difference between a survival action and a wrongful death action?
i. A survival action allows the decedent’s representative to bring an action on behalf of the deceased. A wrongful death action is to compensate survivors for the pecuniary losses they incurred due to the death.
c. Survival Action
i. A “survival action” is brought for the benefit of the decedent’s estate.
1. Survival of the decedent’s claim- if they had survived they would have been able to bring suit
ii. Decedent is a legal term for the dead person.
iii. Do all actions of the decedent survive death? Yes. Most do. [See statute below for exceptions]
iv. North Carolina Survival Statute [28A-18-1. Survival of
d Servant Rule is where a servant who is loaned by one master to another is regarded as acting for the borrowing master, and the loaning master is not held responsible for the servant’s negligent act.
a. Common Law- Liability is allocated to the controlling master at the time of injury.
b. Modern Law- [Not needed b/c mostly covered under workers comp] Comparative Fault can apply.
d. Independent Contractor
i. Definition of Independent Contractor:
An independent contractor is an person who works for another but who is not controlled by the other or subject to the others’ right to control with respect to his physical conduct in the performance of the work.
ii. General Rule: Employer is generally not liable for the torts of his Independent Contractor.
iii. Key element in determining status is who is CONTROLLING the “independent contractor.”
iv. Apparent Agency:
If a principal creates the appearance that someone is his agent, he should not then be permitted to deny the agency if an innocent third party reasonably relies on the apparent agency and is harmed as a result.
v. Exceptions to general rule of no liability to principal [Non- delegable duties]:
1. Inherently Dangerous (hiring a chemistry teacher as an independent contractor)
2. Peculiar Risk (hiring independent contractor for a risk that is known by the employer, but not apparent)
vi. Collateral negligence: [Exception to Non-Delegable Duty Rule]
1. The contractor’s negligence consists solely in the improper manner in which he does the work
2. It creates a risk of such harm which is not inherent in or normal to the work
3. The employer had no reason to contemplate the contractor’s negligence when the contract was made
e. Status Creates Vicarious Liability
i. Partnerships: Partners are vicariously liable for the actions of the other.
ii. Aiding, abetting, or encouraging : Person will be held liable for the actions of the person they are working with.
7. Strict Liability
a. Strict Liability in General
i. Third Main Area of Tort Law [Intentional Torts, Negligence, & Strict Liability]
Scienter- Focus on Activity (not on Intent (Intentional Tort) or Fault (Negligence)
ii. Defenses are available. So it’s not absolute liability.
iii. Advantage: Time Saver. Don’t have to deal with proving Intent/Fault.
b. Trespassing Animals
i. Livestock
1. Common Law- Strict Liability for all damage caused.
