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– P bystander must be within “zone of danger” created by D’s negligent conduct NY Distinction – negligent infliction (very narrow)1.Blood relative; and2.In “zone of danger” (almost gets creamed himself)-NOTE: if physical injury caused by another tort, P can tack on damages for emotional distress as a “parasitic” element of P’s physical injury damages-NOTE: If doctor mismanages a pregnancy that results in stillbirth, the mother can sue for her emotional distress.d.Distinguish between(i)Intentional infliction of emotional distress– requires that D was deliberate & outrageous(ii)Negligent infliction of emotional distress– requires that D was carelessB.Breach of duty1.Assert theory + proves it with evidence (e.g., & “here, P would allege that the breach was… the failure to nail down the loose board on the deck/driving while intoxicated”)2.Res ipsa loquitor(“the thing speaks for itself”) ⇒a doctrine used by P’s who cannot tell us precisely what D did that waswrong, allow P to continue the case by showing 2 part testa.Accident occurred is of a type which does not normally occurin the absence of negligence– all about probability, reasoning backward from an outcome. b.Accident ordinarily happens by a person in D’s position (D had exclusive control) –P has to show that D is the party most likely responsible for the mysterious screw-up that led to the accident -NOTE:Torts8
(i)P has made a prima facie case and thus allows P to defeat D’s motion for a directed verdict against P, & get his case to the jury(ii)BUT, the court will almost always deny P’s motion for directed verdict UNLESS P has established negligence per se through (a) violation of statute & (b) there are no issues of proximate cause C.Causation– on essays, need to talk about BOTH (first factual, & then legal causation)1.Factual causation– linkage cause/effect & breach/damagea.But-for test – builds on the breach by showing that but forthe breach, P wouldn’t be injured (D will try to negate factual causation arguing “but for doesn’t apply, because even ifD had been careful, P still would’ve sustained its injuries”)b.Alternative tests – multiple Ds(i)Merged causation(substantial factor test) – Mingled Cause Cases - substantial factor test asks whether each D contributed to the disaster in a substantial way; if so, we hold them jointly liable(ii)Unascertainable causation (alternative causation test)(a)Simultaneous event (only one of which is liable) – true cause is unascertainable (b)Shift burden of proof to D to exonerate themselves by preponderance of evidence – if each D can’t, they are jointly liable-NOTE: (i) merged causation – both parties caused harm; (ii) unascertainable causation – only 1 party caused harm2.Legal causation(“proximate cause” – it is just a label) – this is the ‘FAIRNESS’ element (whether liability is proportional)a.Foreseeability test– only for foreseeable consequences of their carelessness -Analysis: consider whether the consequences are what your worried about)b.Direct Cause Case