100%(4)4 out of 4 people found this document helpful
This preview shows page 18 - 21 out of 41 pages.
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 prolongedfears 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 suitHIV Cases: (Note 6) 2 ways of examining1.Negligent exposure to infected needle2.Negligent diagnosis; pretty close to “zone of danger” type scenario: fear of imminent physical harm;also, a Third Category of Wrongful Telegramcases. 18
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. JaffeeFacts: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 dangerwhen:1.Must actually perceive it(nota “proximity test”)2.Must have close relation with injured party3.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) Proximity2) Direct sensory shock (not learning later)3) Closely related Πand victim--Are these factors better htan no recovery at all of any kind?