theres no toxic harm where its more likely than not One could argue that the

Theres no toxic harm where its more likely than not

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there’s no toxic harm where it’s “more likely than not” --One could argue that the courts have it backwards: Stronger case for emotional distress recovery is the prolonged fears stemming from toxic exposure vs. a “near miss case” such as an auto crash where one goes on with their life the next day --CA and a few others exclude pain and suffering and emotional distress recovery in a wrongful death suit HIV Cases : (Note 6) 2 ways of examining 1. Negligent exposure to infected needle 2. Negligent diagnosis; pretty close to “zone of danger” type scenario: fear of imminent physical harm; also, a Third Category of Wrongful Telegram cases. 18
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Gammon v. Osteopathic Hospital of Maine, Inc. Facts: Man thinks he’s getting back his deceased father’s belongings, but instead gets a bag with an arm and a leg, literally. Principle: If there’s foreseeability that something will case serious harm, then there might be recovery. But it’s not a broad-based foreseeability standard : “it must be some cause that a reasonably onstituted person would have suffered….” --In Bryan R. v. Watchtower Bible , Maine Supreme Court tries to reign in Gammon , and claims (falsely) that there was a “relationship” between hospital and Π (which was not in the original holding)—they are afraid that what they came up with was too broad when applied to liability against a church for sexual abuse of a priest. Portee v. Jaffee Facts: Woman watched her seven-year-old son die an excrutiatingly painful, slow death over four-and-a-half hours in negligently maintained elevator in New Jersey. Principle: Recovery for unharmed bystanders outside of the zone of danger when: 1. Must actually perceive it (not a “proximity test”) 2. Must have close relation with injured party 3. Must either be death or serious injury --In NY, mother probably couldn’t have recovered because she was not in the zone of danger -- Dillon v. Legg (big CA precdent; p. 287)—Three part test for determining whether compensable damagers were “foreseeable” 1) Proximity 2) Direct sensory shock (not learning later) 3) Closely related Πand victim--Are these factors better htan no recovery at all of any kind?
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