Standards of care
Standard of care for a physically disabled person
A reasonably prudent person with that same physical disability
allows an injured rescuer to sue the party that caused the danger requiring the rescue in the first place.
3 general approaches to bystander recovery
1. Zone of danger
2. Restatement/Dillon v. Legg contemporaneous observation
3. Impact Rule
What is the primary assumption of risk?
Protects defendants from liability in some circumstances where risks either cannot be eliminated or would be too costly to eliminate and where those risks are typically obvious to the people who encounter them.
What are general damages?
(non-economic): These are for consequences like pain and suffering that are difficult to quantify in terms of money
When the child takes part in an "adult activity" or one that is abnormally dangerous
What is the Firefighter Rule?
Firefighters and police officers who are injured may not recover based on the negligent conduct that required their presence
What is the zone of danger approach to bystander recovery?
When negligence caused fright, and the plaintiff experienced an immediate risk of physical harm, then negligence is the proximate cause of the consequences, and liability is established as long as the plaintiff was in the “zone of danger”
Types of assumption of risk
1. Express assumption of risk
2. Primary implied assumption of risk
3. Secondary implied assumption of risk
What are Special Damages?
(economic): These are for readily calculable types of expenses that are specific to a particular plaintiff, such as medical and funeral expenses or lost earnings
Standard of care to a rescuer owed by the tortfeasor?
A tortfeasor owes the rescuer a duty similar to the duty he owes the person he imperils
Generally, how is a rescuer's own negligence during the rescue treated?
A rescuer’s negligence does not automatically bar recovery under the rescue doctrine, as long as their actions are not reckless or egregiously unreasonable.
What is the impact rule?
requires that a plaintiff must have sustained a physical impact or injury as a result of a defendant's negligence to recover damages for emotional distress.
What is the secondary implied assumption of risk?
requires a subjective test of whether the plaintiff actually knew and appreciated the risk created by the defendant's wrongful conduct and voluntarily accepted the risk
Difference in past harm and future harm? (timeframes)
Past harm: Harm that occurred up to the time of the verdict
Future harm: predicted harms (by a preponderance of the evidence) to occur after the verdict
What is the standard of care owed to a licensee?
The duty that an owner owes to a licensee is to not injure him by willful, wanton, or grossly negligent conduct, and that the owner use ordinary care to either warn a licensee of or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not
How is the assumption of risk treated for rescuers?
The rescue doctrine negates the presumption that the rescuer assumed the risk of injury, so long as he didn't act rashly or recklessly
Dillon v. Legg three guidelines
Whether the plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it
Whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with the learning of the accident from others after the occurrence
Whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship
What is the primary assumption of risk?
When the court concludes or a statute states that the defendant has no duty to the plaintiff or has not breached a duty to the plaintiff
Two-pronged approach for proving future pain and suffering
If it is an objective injury, upon making proof of the injury, the jury can infer pain and suffering in the future
If the injury is subjective, the plaintiff must offer evidence by expert witnesses showing that the plaintiff, with reasonable certainty, may be expected to experience future pain and suffering as a result of the injury proved
They are all joined together where a landowner owes a reasonable person standard of care to all entrants, legal and illegal
what must one demonstrate to achieve rescuer status?
The defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued
The peril or appearance of peril was imminent
A reasonably prudent person would have concluded such peril or appearance of peril existed
The rescuer acted with reasonable care in effectuating the rescue
To recover from bystander emotional distress one must prove that he or she was:
Located near the scene
Was emotionally injured by the contemporaneous sensory observance of the accident
Would a reasonable person of ordinary firmness had suffered emotional distress?
And was closely related to the victim
Any non-family “relationship” fails requirement three as a matter of law
What is the express assumption of risk?
applies when the parties expressly agree in advance, either in writing or orally, that the plaintiff will relieve the defendant of his or her legal duty toward the plaintiff
Difference between survival and wrongful death damages?
Survival damages: Plaintiffs estate can sue on their behalf, as if the plaintiff had survived, to assert the plaintiff's rights
Wrongful death damages: Allow people to recover for losses as a result of another's tortious conduct that caused death