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26 Cards in this Set

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Are tortfeasors responsible for intangible harms?
It has long been recognized in the courts that a tortfeasor should be responsible for causing distress, emotional harm, anxiety, and similar intangible harms. The exact form of the intangible harm seldom matters, so long as it is real
What are the elements of intentional infliction of emotional distress? (IIED)
To recover damages for intentional infliction of emotional distress, a plaintiff must prove that:
(1) the defendant acted intentionally or recklessly;
(2) the conduct was extreme and outrageous;
(3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe.
A claim for intentional infliction of emotional distress will not lie if....
a claim for intentional infliction of emotional distress will not lie if emotional distress is not the intended or primary consequence of the defendant's conduct.
Does rude behavior constitue extreme and outrageous conduct?
Generally, insensitive or even rude behavior does not constitute extreme and outrageous conduct. Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct.
To establish a cause of action for intentional infliction of emotional distress in the workplace, an employee must prove the existence of.........
To establish a cause of action for intentional infliction of emotional distress in the workplace, an employee must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct. GTE Southwest, Inc. v. Bruce.
Are racial slurs extreme and outrageous conduct?
While a single racial slur spoken by a stranger on the street will not amount to extreme and outrageous conduct, a jury could reasonably conclude that the power dynamics of the workplace contribute to the extremity and the outrageousness of a defendant's conduct. Taylor v. Metzger.
How do you determine whether the defendant's conduct is sufficiently outrageous?
In determining whether the defendant's conduct is sufficiently outrageous, courts have tended to emphasize that the conduct is
(a) repeated or carried out over a period of time or
(b) an abuse of power on the one hand or abuse of a person known to be especially vulnerable.
1. A single request for sexual contact might be offensive but is usually not sufficiently outrageous. On the other hand, repeated and harassing requests for sexual attention can be outrageous.
2. A creditor is not outrageous in demanding payment of an overdue debt, but numerous demands for payment of a debt not due may be actionable.
Must one have physical symptoms to recover under IIED?
Severe emotional distress must be intended and caused. Although severe distress can be proved without showing physical symptoms, courts really insist that the distress must be severe or even debilitating.
The First Amendment to the Federal Constitution forbids state or federal interference with free speech. However, sometimes intentional or even merely negligent misstatements of fact might be grounds for recovery on a libel or slander theory, in spite of the First Amendment. Are opinions protected?
In general, statements not understood to be factual (such as opinions) are protected.
Is Outrageous conduct directed at A give B a cause of action?
There are situations in which conduct directed principally at one person has been regarded as extreme and outrageous as to another, but normally the other person must be present to witness the conduct in order to recover. Homer v. Long.
2. The requirement of presence has been relaxed by some courts in particularly compelling circumstances, as, for example, where a parent sued the defendant for sexually molesting or kidnapping the plaintiff's child.
What are the three differenct fact situations the law recognizes for neglignetly caused emotional distress?
As to liability for negligently-caused emotional distress, the law distinguishes three different fact situations impact, zone of danger, and bystander.
What is the "impact rule"?
If D's negligent conduct results in any impact, however slight, with P's body, all courts will allow that impact to support liability for P's emotional distress resulting from the same negligent conduct.
What is the zone of danger rule?
If D's negligent conduct threatens (but does not result in) bodily harm (impact) to P, most courts will allow P to recover for bodily harm resulting from the fear, shock or other emotional disturbance caused by his presence in the zone of danger.
What is the bystander rule?
If P is not himself in the zone of danger, but suffers emotional distress as a result of witnessing a shocking event in which D's negligent conduct threatens or causes physical harm to a third person, most courts have refused to hold D liable to P.
What is the exception to the bystander rule?
A few courts, following Dillon v. Legg (Cal.1968), have allowed P to recover in such situations, provided (a) the threatened injury is a serious one, (b) P is a member of the immediate family of the person in peril, (c) the shock results in bodily harm to P, (d) the event is of short duration, and (e) P actually witnesses the event or its immediate aftermath.
Is a plaintiff that has a pre-existing emotional disturbance precluded from recovery for mental suffering?
When a plaintiff has a pre-existing emotional disturbance, she is not necessarily precluded from recovery for mental suffering. When a defendant's negligent conduct aggravates a pre-existing condition, the victim must be compensated for the full extent of the aggravation. Miley v. Landry.
Is fear for one's safety an essential element of the zone of danger test?
The zone of danger test does not necessarily require that there be fear for one's personal safety expressed contemporaneously with the collision. However, fear for one's safety is an essential element of the zone of danger test and must be expressed at or near the time of the danger in order for a plaintiff to prevail in an action.
a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: e.g. "the Thing rules"
(1) Is closely related to the injury victim;
(2) Is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and
(3) As a result suffers serious emotional distress a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. Thing v. La Chusa.
Can a plaintiff who does not see the event itself but only sees the injured victim later, in the hospital recover for negligent infliction of emotional distress?
The plaintiff's sensory perception of the accident or injury when it happens or at least shortly thereafter is important. The clear case for recovery is one in which the plaintiff actually sees the injury as it occurs. A plaintiff who does not see the event itself but only sees the injured victim later, in the hospital, is likely to be denied recovery.
California recognizes what two classes of emotional harm cases?
California recognizes two classes of emotional harm cases. In the first, the plaintiff is a bystander, a person who has no preexisting relationship with the defendant. To this class of cases, the La Chusa rules apply. In the second, the plaintiff is a "direct victim." This phrase means that the plaintiff was in some kind of preexisting relationship with the defendant and that her claim is based on a breach of duty assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two. As to these claims, the La Chusa rules do not apply. Liability in this class of cases is not unlimited; it is limited by the relationship established by the parties themselves. Burgess v. Superior Court.
What is a loss of consortium claim?
The loss of consortium claim was originally for loss of services, but it gradually expanded to take in non-economic losses such as loss of society and sexual relations.
Do courts usually allow recovery for loss of consortium in cases involving adult children?
No widely accepted development has occurred that allows recovery in cases involving adult children, nor has any widely accepted development occurred that allows recovery for the loss of a child's society and affection.
Absent a showing of actual exposure to blood or body fluid infected with HIV, may a plaintiff recover damages for anxiety and mental suffering occasioned by his or her fear of testing HIV positive?
A plaintiff who sustains a minimal physical injury, caused by the defendant's negligence, may recover damages for anxiety and mental suffering occasioned by his or her fear of testing HIV positive and contracting AIDS, even absent a showing of actual exposure to blood or body fluid infected with HIV.
Must a toxic exposure plaintiff meet the more likely than not threshold for fear of cancer recovery in a negligence action if the plaintiff pleads and proves that the defendant's conduct in causing the exposure amounts to oppression, fraud, or malice?
A toxic exposure plaintiff need not meet the more likely than not threshold for fear of cancer recovery in a negligence action if the plaintiff pleads and proves that the defendant's conduct in causing the exposure amounts to oppression, fraud, or malice, which authorizes the imposition of punitive damages.
Under what circumstances will an independent cause of action for negligent infliction of emotional distress will arise?
An independent cause of action for negligent infliction of emotional distress will arise under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant's negligent act or omission.
Will a worker outside the zone of danger of physical impact be able to recover for emotional injury caused by fear of physical injury to himself?
A worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not.