Negligence: Duty of Care and Economic Loss
1. Black Letter Law / Rule
The Physical Impact Rule for Economic Loss In the absence of physical impact to the plaintiff’s person or property, there is generally no duty of care owed for pure economic loss.- Requirement: To recover for economic damages in negligence, the plaintiff must show a physical impact occurred.
2. Hypotheticals & Examples
- The Traffic Jam Hypo: A defendant rear-ends a driver, causing a massive traffic jam on the freeway.
- Scenario: A florist two miles back is stuck in traffic. The flowers wilt ($10k loss), and the florist is docked pay for being late.
- Outcome: The florist cannot recover from the defendant. The florist suffered pure economic loss without physical impact to their person or vehicle. The defendant owes no duty to the florist [cite: 131-152].
- Contrast: The driver actually hit by the defendant can recover economic damages because they sustained physical impact.
Negligent Infliction of Emotional Distress (NIED): Direct Victim
1. Black Letter Law / Rule
The Physical Manifestation Test To recover for NIED (pure emotional distress) in a negligence action, the plaintiff must prove that the defendant owed them a duty of care. Under modern law (post-Daley), the “Physical Impact Rule” is replaced by the Physical Manifestation Test.- The Rule: A definite and objective physical manifestation of severe emotional distress is necessary to establish a duty.
- Examples of Manifestations: Hives, rash, stroke, fainting, or other objective physical symptoms.
2. Key Cases
Daley v. LaCroix (referred to as “Daily”)- Facts: Defendant drove negligently; the car flew through the air, sheared a utility pole, and caused an electrical surge that damaged the plaintiff’s property. The plaintiff alleged emotional distress but suffered no direct physical impact from the car or pole [cite: 43-47].
- Holding: The court rejected the old “Physical Impact Rule” (which required contact) and adopted the Physical Manifestation Test. A plaintiff can recover for pure emotional distress if they can show a definite and objective physical injury resulting from the fright.
3. Nuance & Policy
- Historical Context (Physical Impact Rule): Previously, courts required physical contact (e.g., a rotting finger in tobacco touching the lip) to recover for distress. This was a liability-limiting tool to prevent fraudulent claims and “floodgates of litigation” [cite: 82-96].
- Placement in Analysis: NIED is not a separate tort; it is a Negligence cause of action. The Physical Manifestation Test is analyzed under the Duty element.
Negligent Infliction of Emotional Distress (NIED): Bystander Recovery
1. Black Letter Law / Rule
Thing v. La Chusa Guidelines To establish that a defendant owes a duty of care to a bystander for NIED, the plaintiff must satisfy three specific requirements:- Close Familial Relationship: The plaintiff must be closely related to the injury victim.
- Contemporaneous Observance: The plaintiff must be present at the scene of the event and aware that it is causing injury to the victim.
- Serious Emotional Distress: The plaintiff must suffer distress beyond that of a disinterested witness and which is not abnormal.
2. Key Cases
Thing v. La Chusa (referred to as “Thing”)- Holding: Established the bright-line rules (above) for bystander recovery to limit liability.
3. Nuance & Policy
- Distinction from Intentional Infliction of Emotional Distress (IIED):
- Bystander IIED requires proving the defendant had Intent (Specific or General) to cause severe distress to the bystander. This requires showing the defendant knew the bystander was present and knew of the close relationship.
- Bystander NIED is used when intent cannot be proven (e.g., a negligent car accident or a random attack where the defendant didn’t know the victim’s spouse was watching).
- “Disinterested Witness” Standard: Almost anyone witnessing a horrific injury suffers distress. To recover, the distress must be distinguishable from what a stranger would feel; hence the requirement for a close relationship and “serious” distress [cite: 866-876].
Proximate Cause: Intervening and Superseding Acts
1. Black Letter Law / Rule
Indirect Cause Analysis In indirect cause cases (where an intervening act occurs between the defendant’s negligence and the plaintiff’s injury), liability turns on whether the intervening act is superseding [cite: 1188-1190].- Superseding Act: An act that is extraordinary, unforeseeable, and independent. It cuts off the defendant’s liability.
- Non-Superseding Act: An act that flows naturally from the underlying negligence. The defendant remains liable.
2. Specific Intervening Acts & Foreseeability
- Negligent Intervening Acts: Generally foreseeable and not superseding.
- Example: A hotel failing to clean up broken glass is a negligent omission, but it flows naturally from the act of breaking the glass. It does not cut off liability.
- Example: Medical malpractice usually does not cut off liability for the original tortfeasor.
- Rescuers: Rescuers are foreseeable plaintiffs (“Danger invites rescue”). A rescuer’s negligence (e.g., moving a victim and aggravating an injury) is generally not superseding.
- Plaintiff’s Own Negligence: A plaintiff failing to take precautions (e.g., not wearing shoes near broken glass) is a foreseeable intervening act and is not superseding [cite: 1258-1262].
- Criminal/Intentional Acts: These act types are generally least foreseeable and more likely to be deemed superseding, unlike mere negligence.
3. Hypotheticals & Examples
- The Beer Bottle Hypo (Exam Review):
- Facts: Jack (D) drops a beer bottle. Hotel (Intervening) fails to clean it up. Sue (Intervening) steps on it while not wearing shoes. Cindy (Rescuer/Plaintiff) attempts to help Sue and gets injured/aggravates injury.
- Analysis:
- Duty: Jack owes Cindy a duty because she is a rescuer, and rescuers are foreseeable plaintiffs.
- Proximate Cause:
- Hotel’s failure to clean = Negligent, but not superseding.
- Sue not wearing shoes = Negligent (breach of implied standard/sign), but foreseeable/not superseding.
- Cindy moving the victim = Foreseeable rescuer conduct/not superseding.
- Conclusion: Jack remains liable; the intervening acts do not break the chain of causation.
Duty to Rescue
1. Black Letter Law / Rule
General No-Duty Rule Generally, there is no duty to rescue a person in peril. Exceptions- Control of Instrumentality: If a defendant controls the means of rescue or the instrumentality causing harm (e.g., a store manager stopping an escalator trapping a child), a duty to rescue arises.
- Creation of Peril: If the defendant created the peril (even innocently), they have a duty to assist.
2. Nuance & Policy
- First Responders: An off-duty first responder generally has no affirmative duty to rescue a stranger unless a specific relationship or statute applies.
- Right to Sue: First responders can sue a defendant who negligently causes the peril that injures them (e.g., a firefighter suing an arsonist), though specific immunity statutes often protect responders from being sued.