IIED
What are the elements of the prima facie case for intentional infliction of emotional distress?
1. Extreme and outrageous conduct that is beyond all bounds of decency
2. Intended or with reckless disregard to cause emotional distress so severe that it could be expected to adversely affect physical health
3. That does cause severe emotional distress but do not need physical harm
What is the predicate injury for an NIED claim?
Pure emotional distress
What are the elements of the prima facie case for trespass? What makes this wrongful?
1. Defendant intentionally (volitionally) touches land
2. The land is owned or possessed by the plaintiff
3. Interferes with the right of exclusive control and possession of plaintiff in a certain piece of real property
What are the elements of the prima facie case for nuisance?
1. D engages in conduct
2. That causes a continuing and unreasonable interference
3. With the plaintiff's use and enjoyment of property
4. That the plaintiff has a possessory interest in
What is required to prove a claim that someone is strictly liable for an ADA?
1. Physical harm
2. Truly unusual activity that is not an everyday use or behavior
Why is the statute of limitations longer for an IIED claim in comparison with other intentional torts?
Takes longer for the trauma to manifest itself and the person to realize they have the evidence needed to support a claim
What is the general rule regarding duty for other's emotional well-being and what are the 3 categories of exceptions?
1. General rule is there is no duty to take care with respect to another's emotional well-being
2. Certain special relationships, the zone-of-danger, and specific bystanders
Who can complain of a trespass? What counts as an intrusion (and what don't you need to prove intrusion)?
1. Plaintiff must own or otherwise be lawfully in possession of the land
2. Intrusion must be physical and visible to naked eye but can occur anywhere including above and below the surface of the land and failure to leave or remove something from the land after consent is revoked
3. No need to show harm, injury, or damage
In what ways is nuisance different from trespass with regards to the following: interference, the value of the defendant's actions, the length of time, and the intentionality of defendant
1. Nuisance requires unreasonable interference, trespass only trivial interference
2. Nuisance consider's defendant's interest in activity and public interest, trespass does not consider the value of trespassory activity
3. Nuisance requires continuing interference, trespass requires only a one-time event
4. Nuisance does not require intent to interfere, trespass requires invasive act to be intentional
How does reasonable care play into the assessment of an ADA?
Care taken along the way is irrelevant
What type of conduct is extreme and outrageous?
Goes beyond all bounds of decency, regarded as atrocious and utterly intolerable in a civilized community, borders on being criminal or the actual behavior was criminal, behavior is so bad no reasonable person could be expected to endure it.
Define the "zone of danger" as it relates to NIED claims.
Explain the incomplete privilege of necessity to trespass and what do you need to prove.
There will be no fault but any damage caused by the defendant must be paid for but there are no punitive damages
The defendant must show that it was necessary to trespass and that doing so was reasonable
What is meant by the idea of coming to the nuisance? Is this a dispositive defense by the perpetrator?
The plaintiff should not recover because the nuisance was present when they arrived and they came anyway; timing is taken into account and matters but is not dispositive
What are categories of things that are almost always classified as ADA?
1. Keeping wild animals
2. Fire and Explosive based activities/jobs
3. Transport or processing of hazardous materials
What types of evidence can be used to support an IIED claim?
1. Evidence of physiological manifestations
2. Evidence of psychological manifestations
3. Evidence that plaintiff sought medical treatment, was diagnosed with a medical condition, or was prescribed medication
4. Evidence about the duration and intensity of the symptoms and treatments
5. Evidence that the conduct caused plaintiff to suffer significant impairment in daily functioning
Explain how special relationships can give rise to a duty to take care with regard to the emotional well-being of another
A person willingly undertakes the duty via express conduct (such as a contract) or it is particularly foreseeable with regards to the relationship that if care is not taken, emotional distress may be caused
Explain the defense of consent to trespass. When is consent no longer a defense?
Consent was given but the trespass needed to fall within the bounds of consent. Consent is not a defense once it was revoked and the trespass continued or it exceeded the bounds of the consent.
What things might be considered in determining if something is a nuisance?
1. The facts and circumstances regarding the nuisance
2. Public policy and public interest
3. The timing of the nuisance and the complaint
How do intervening acts of 3rd parties and "acts of God" affect strict liability for ADA?
1. Intervening acts are only a defense if they were incredibly unforeseeable because otherwise the defendant was expected to anticipate what could go wrong and take precautions
2. When ADA are affected by "acts of God" which were natural conditions that could not be protected against, they can be exempted from liability
Who can provide evidence in an IIED claim?
What elements are needed to prove liability to a bystander in an NIED claim?
1. Bystander was close relation (very narrowly construed) to the victim of the negligence
2. The bystander was present and aware of the negligence as it happened
3. The bystander suffered emotional distress beyond what other witnesses would have experienced but the reaction was not abnormal
Explain how a person recovers for injuries parasitic on trespass.
The person must prove that the injury they suffered was actually a direct result of the trespass or damage inflicted to the property during the trespass
What is meant by strict liability or liability without fault?
Liability is not based on an intentional or negligent performance of something harmful, simply based on defendant engaging in some activity that interferes with an interest of the plaintiff. Look for the defendant to choose to do something they could have chosen not to do.
What are the restatement factors to consider when determining if something qualifies as an ADA?
1. High degree of risk
2. Likelihood of great harm resulting
3. Inability to completely eliminate risk through reasonable care
4. Not a matter of common usage
5. Inappropriateness to location
6. The value to the community as a whole