Torts Outline

Scope of Duty Cont…
 
 
·         Emotional Distress Recovery
 
·         Intentional Infliction of Emotional Distress – sometimes called the tort of Outrage
 
·    Act – act
·    Intent – to cause emotional distress.
·    Cause – actually cause (subjective). There needs to be actual and proximate cause.
·    Harm – must be severe (but need not have physical manifestations). Must be subjectively severe and objectively severe.
·    OUTRAGE = gasp factor = ADDITIONAL ELEMENT
 
·         Negligent Infliction of Emotional Distress
 
·    1) “Parasitic” or “Derivative” (piggy back) to Physical Injury – standard recovery Scenario: driver runs over pedestrian’s leg and develops a phobia of going outside or something similar to post traumatic stress. This person can recover. It is piggy backed on the physical injury. This is standard. How do you prove it? You look at the bills. Can recover for reasonable things.
 
·    2) “PURE” Emotional Distress – no accompanying physical injury and/or no physical impact. General rule is that there is no recovery for negligent infliction of emotional distress. Policy reason: Court fears too many cases.
 
§ a) law of states differs, but generally courts are disinclined to permit recovery (even for severed heads in elevators)
 
§ b) the “near miss” – this is Falzone, p. 264. Impact was something just had to touch you in order to piggy back emotional distress. Near miss; Mrs. Falzone is a near miss case. She was terrified that she was going to be hit. Under the old rule there was no impact, there was no recover. Falzone changed this:
 
 
·    Act or Omission (what the driver did wrong).
 
·    Negligence –   
 
·    Duty to act reasonably so as to protect others from physical harm and also to protect those within the zone of impact from emotional harm. Beneficiary of the duty is expanded.
 
·    Breach of Duty of Care to protect from physical harm (has to be proven).
 
·    Actual Cause (note that an extra causal component can be found in (7) below. “But for….” Did the fear lead to her physical symptoms. She will need an expert to testify.
 
·    Proximate Cause
 
·    Damage = (1) adequately demonstrated (2) fright from a
(3) reasonable (4) fear of an (5) immediate (6) physical personal injury, that fright (7) resulting in (causing) (8) substantial (9) physical manifestations (bodily injury or sickness)
OR (simpler version) = (1) real fear from (2) reasonable fear of immediate physical personal injury (3) resulting in substantial physical manifestations.
 
(We have all these rules because the court is worried about people faking. They want to cut down on the number of cases. What are physical manifestations? Medical testimony can be used to establish a link. Often it must be a medically treatable condition.)
 
·    (RULES DIRECTLY TAKEN FROM FALZONE)
 
§ Falzone v. Busch – some impact was required.
 
NEW RULE: A Great majority of jurisdictions now hold that where physical injury results from wrongfully caused emotional stress, the injured person may recover for such consequences notwithstanding the absence of any physical impact upon him at the time of the mental shock.
 
Where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright.
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·         BYSTANDER LIABILITY – this is Portee, p. 286, and Dillon
 
·         Act – causing death or personal injury of a third party
 
·         Negligence –    Duty – beneficiary is someone (1) with a marital or intimate familial relationship to the injured third party (2) who is at the scene of the accident and (3) observes the death or severe personal injury; scope is to avoid severe emotional distress.
 
(Beneficiary = spouses and relatives, why not cohabiters? It is arbitrary).
 
·         Breach – of duty of care to avoid physical harm to the third party
 
·         Actual Cause
 
·         Proximate Cause
 
·         Damage – severe emotional distress
 
·    a few exceptions:
 
(1) exposure to carcinogen, HIV, etc
Generally speaking you can’t recover for fear of disease unless you get the actual disease. You can recover for the medical monitoring. Often, you cannot recover for the emotional distress.
 
(2) misdiagnoses
Sometimes you can recover during the window of fear. Courts are concerned about over deterrence.
 
(3) mishandling of corpses, body parts, funerals, etc.
Much more inclination to allow emotional distress recovery. Why allow that recovery? There is less worry about fakery. These businesses make there money off sentimentality. It must be both objectively and subjectively emotion