-Under R/2 analysis, Nancy was on the phone and so was nqUnjthezpne of danger when she heard her husband dying, so she would not recover for BEH. -Under R/3 analysis, she may be able to recover because being on the phone and hearing the event happening is someetimes found to be contemp^^Sffl^&fiasfiH^rception. Horace was her husband, he was dying, and she was hearing him as he was dying. She would likely recover under R/3. Thine (New test 1989) (D-T "foreseeable emotional risk" standard) A plaintiff may recover damages for emotional distress caused by observing the negligently Page 8 of 10
inflicted injury of a third person if, but only if, said plaintiff: 1. Is closely related to the injury victim; (yes b/c he was her husband) 2. Is present at the time it occurs and is then aware that it is causing injury to the victim; and (prob not b/c not present, however could argue that being on the phone at the time of the event = "presence") 3. As a result suffers serious emotional distress?physical(?) reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstance. (she would likely suffer serious emotional distress from hearing her husband panic and die) -Under this test, Nancy would probably not recover because she was not physically present, but could still argue for a different interpretation of "presence." -must prove GIF (yes but-for cause of ED), SOL (wife of employee not unforeseeable plaintiff, emotional harm not unforeseeable consequence, possible unforeseeable superseding intervening cause of him electing to help with the flood BUT he's an engineer), & damages (likely emotional distress from this event) -Defenses to all tests: her claim is derivative of Horace's negligence claim, so he must succeed in his claim and any reduction in award he gets will influence her award (based on CF, CN, or AOR). Nancy v. P&N for wrongful death and loss of consortium 1. WRongful death - Tlie tieath o I'a human beiiig; 2. Caused by anoii'ier's nc[2ii^ence. or with intLiit to cause harm; 3, ''lit siii'vi'. al offai nily rnenibers "'lio are ;, i. if'feriny iTtonc'iary ji) jury as a result of the death, ar'ct; value of deceased's life to the deceased can be recovered. Based on his negligence claim, Page 9 of 10
Nancy could probably recover for wrongful death of H. 4. -Consortium - recover for her loss of consortium (sex life, companionship, etc. ), kids may be able to recover too for loss of parental love and affection. Defenses - contributory negligence and comparative fault (see article), assumption of risk argument that Horace assumed the risk of drowning when he volunteered to help DHEC in emergency dam assessments. However, he was onl doing dam assessments so his lawyer will argue he did not assume the risk of drowning (b/c he was not going into the flood to try to rescue people, was only doing assessments.
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- Fall '14
- Marie Boyd
- F15_Torts Smith