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Torts II
University of Dayton School of Law
Laufer-Ukeles, Pamela

Torts II-Professor Laufer-Ukeles-Spring 2012
I. NIED: Negligent Infliction of Emotional Distress
*Policy Reasons*
While IIED and NIED both can easily be faked, NIED is harder to recover from than IIED b/c intentional torts have a higher level of culpability. What’s foreseeable in negligence could be an endless scope. Proximate cause can cause too many ripples in NIED.
NIED & Bystander Rules
Must have physical Damage
Don’t think any states adopt this
Impact Rule
Mitchell v. Rochester (woman caught b/w horses)
Minority Rule
Must have impact although meaning malleable. R.J. v. Humana (HIV diagnosis impact was treatment) Chambley v. Apple Restaurant (Condom in salad impact)
Physical damage not needed
What is IMPACT? Hurtful or Not.  Courts are split.
Zone of Danger Rule
Majority Rule
1) In danger of physical impact 2) Is aware and reasonably fears for own safety 3) Suffers serious emotional distress
Some jurisdictions apply the pre-existing duty and permit P to recover NIED when not in zone of danger e.g. Johnson v. Jamaica baby kidnapped hospital already had a duty.
Daley Rule
(Power Line)
Extension of zone of danger & Impact
Where a definite objective physical injury is produced as a result of emotional distress proximately caused by defendant’s negligent conduct, the plaintiff may recover damages in the absence of physical impact.
P has the burden of proof that physical harm complained of is a natural consequence of the alleged emotional disturbance
Bystander Rule (A derivative i.e. the underlying action must first establish negligence)
1) Located near scene of accident 2) Special relationship 3) Direct emotional impact
Sort of focused on foreseeability very liberal rule.
Bystander Rule overruled Dillon (A derivative i.e. the underlying action must first establish negligence)
1) Closely related 2) Present & aware 3) Great distress beyond a non-interested bystander
{Each state has either Impact or Zone of danger rule for Negligence the question is do they expand to the bystander derivative liability to recover for Negligence?}
Special Circumstances/Exceptions to zone of danger to claim negligence:
·         Negligent mishandling of corpses Guth v. Freeland corpse not refrigerated
·         Negligent mishandling of genetic material Perry-Rogers v. Obasaju egg implanted in wrong woman
·         Special relationships (bigger exception) Johnson v. State hospital falsely notified woman her mother died already had pre-existing duty
NIED Limitations to Rule in Order of most strict to lenient to recover form NIED:
Need physical damages (hardly any states follow this)
Physical Impact (minority rule does not require injury)
Zone of Danger (majority rule)
Daley- Definite Physical manifestation (this is quite an extension)
Thing Bystander Recovery:  An expansion of zone of danger.
1.       Is there a special relationship parent/child hospital/patient etc. if so may not need to establish zone of danger or impact rule
2.      Does the case involve genetic matter or a corpse if so its an exception no need to establish the zone of danger or impact
3.      If bystander involved claiming NIED apply 1) Thing Rule
II. Harm to Unborn Children
{At common law if Plaintiff or Defendant died the claim would end.} Now there are survival statutes (representative can sue in place of the deceased and will allow discovery for damages between injury & death for the deceased) and wrongful death statutes (loss of consortium, a family member can bring not for pain or suffering of deceased but for close family members loss).
Wrongful Death: aka “loss of consortium usually limited to spouses”
Werling Rule: A parent can recover under the wrongful death statue if the child is viable at the time of injury.  It’s not really loss of consortium it’s the loss of the potential to have a child.   Should viability count, when is there a bond?
*Split in authority*
Majority courts allow if fetus viable, some don’t require viability and others require live birth for recovery*
Wrongful birth/Wrongful life:
Procanik Rule: An infant plaintiff may recover special damages for the extraordinary medical expenses he will incur, but may not recover general damages for emotional distress or for an impaired childhood. The negligence was failure to diagnose appropriately and the loss of chance to abort.  {Some courts don’t allow recovery}
Note: Wrongful birth: parent sues for unhealthy child Wrongful life: Child sues for unhealthy life when of age Wrongful conception: parent sues for healthy but unwanted baby.
*Policy reasons *
Courts do not want to adopt that an impaired life is more valuable than no life at all.  Courts concerned with calculation of damages.  The doctor may not cause the health issue he is only the cause of the baby being born.
Limited Proximate Cause:
Limited Duty: sometimes there is limited duty e.g. duty to help stranger
Sometimes necessary to limit damages for foreseeable consequences i.e. limited to no duty rule:
1.       Economic loss
2.      Emotional distress
3.      Unborn children
4.      Trespassers limited duty
5.      Products liability at common law
1.       Defenses based on P’s action, 1) contributory negligence, 2) comparative negligence 3) assumption of risk & 4) avoidable consequences (after the injury)
Defenses based on Plaintiff’s actions:
1.       Contributory negligence  (you did wrong so you can’t recover)
2.      Comparative negligence (we both did wrong defense, we will share damages) Can only use this defense with negligence or low culpability intentional torts (split) & not allowed with criminal action
3.      Assumption

cause more LIKELY than not, and substantially certain.
·         When negligence established consider was the other party also negligent, didn’t avoid risk or assumed risk
·         If other party negligent then analyze both comparative (majority) Pure & Modified form then contributive negligence.
·         In analyzing comparative risk if the defendant’s action was intentional you can’t use comparative negligence as a defense
·         In analyzing comparative risk consider if there was criminal conduct, or high culpability intentional tort and if so can’t use comparative negligence as a defense unless action was not related to criminal conduct
·         Analyze if there was an assumption of risk either explicit or implicit
·         Analyze if plaintiff could have avoided the risk after the injury & failed to do something
When discussing comparative negligence always pays attention to if the plaintiff’s conduct was intentional high culpability or criminal.  When talking about other party’s negligence make sure to discuss comparative negligence in the pure and modified form of it and analyze the entire negligence issue include proximate cause and restatements.
1.       Explicit: exculpation agreements
2.      Implicit: aware & assume risk
When a principal is sued solely on the negligent acts of its agents the dismissal of the agents entitles the principal to be dismissed BUT if independent negligent acts are alleged directly against the principal, they may still be liable.  Evans v. Lima Lima Flight.  
Explicit Assumption: Exculpation Agreements:
Exculpation agreements are not favored by the court and are strictly construed against the party they benefit.  They must be specific & definite enough.  An exculpation clause will be enforced if it meets the following elements:
Is specific & definite
It clearly spells out the intention of the parties &
There is nothing in the social relationship between the parties militating against enforcement &
It is not against public policy
{Courts will deny enforcement of exculpation clauses if defendant’s action was Intentional or when they believe that society will be ill served.  Tunkel v. Regents of University of California. P asked to sign an exculpation clause for medical treatment not allowed for public policy reasons.