Legal Analysis of Negligence Claims and Wrongful Death Action, Exams of Law of Torts

Download Legal Analysis of Negligence Claims and Wrongful Death Action and more Exams Law of Torts in PDF only on Docsity! 1 TORTS I Fall 2002 Exam Model Answers Question No. 1 I rule for Suzi on her negligence claims against Dan and Fanny’s Flowers (“Fanny’s”). Dan has conceded liability to Suzi and is therefore liable. The issue concerning Fanny’s liability is whether Dan was acting within the scope of his employment when he deviated from his deliveries to visit his mother’s house. The rule is that an employer is vicariously liable for the tortious acts of its employee that were performed within the scope of the employment. The common law rule also is that the employee’s conduct must be actuated at least in part by a purpose to serve the master (the “motive test”). Acts taken while an employee is engaged in a foreseeable or minor detour from the employer’s business, however, are within the scope of the employment. Acts engaged in during a more substantial deviation from the employee’s responsibilities, or during a “frolic” for the employee’s own purposes, are not within the scope of the employment. Dan is an employee of Fanny’s. He “works” for Fanny’s, his whole work day consists of making deliveries for Fanny’s, and Dan uses Fanny’s vehicle. Although a close question, Dan was acting within the scope of his employment when he struck Suzi. Dan’s trip to his mother’s house was during his scheduled deliveries in Fanny’s vehicle. The detour was a “quick trip,” only five miles out of his way, and involved only 20 minutes away from his duties. He intended to retrieve his sunglasses which he needed for his delivery job. Retrieving his sunglasses was at least partially to benefit his employer. These factors suggest that Dan was only on a minor detour and therefore he was acting within the scope of his employment. Therefore Fanny’s is vicariously liable for Dan’s negligence. [The second best ruling: The accident occurred while Dan was acting outside the scope of his employment. Dan did deviate five miles from his scheduled route. His motivation was to check on his sick mother—not remotely a business purpose of Fanny’s. It was not foreseeable to Fanny’s that Dan would go to his mother’s house on a work day to retrieve his sunglasses. Moreover, the sunglasses are for Dan’s own needs or convenience in driving and are not required by Dan’s employment.] I rule for Dan and Fanny’s on Bob’s, Doris’s, and Jimmy’s negligent infliction of emotional distress claims. Because Fanny’s itself was not in any way negligent, it can only be liable if Dan is liable on a vicarious liability theory. The issue is whether Bob, Doris, or Jimmy have established a claim for negligent infliction of emotional distress against Dan. In order to establish negligent infliction of emotional distress, a plaintiff must establish duty, breach, cause in fact, legal cause, and emotional distress. The problem in this case is duty. The majority rule allows recovery 2 under the zone of danger test where the victim is located within the zone of physical danger and actually fears for his or her own safety. A substantial number of courts have extended liability further under the bystander rule (Dillon Rule) to include bystanders who suffer emotional harm as a result of witnessing accidents if (1) the bystander was located near the scene of the accident, (2) the shock resulted from the sensory and contemporaneous observance of the accident, and (3) the bystander and victim were closely related. The majority of courts also require a physical manifestation of the emotional harm. Applying the zone of danger test, neither Doris nor Jimmy could recover because they were not physically threatened by Dan’s negligence nor did they fear for their own safety. Bob, however, was within the zone of danger because he was three feet from Suzi who was struck. Nevertheless, nothing in the facts demonstrates that Bob feared for his own safety. Furthermore, Bob did not suffer any emotional distress and had no physical manifestation of emotional harm. His only concern was that he might not get paid for babysitting. Bob cannot recover. Even under the bystander rule, Bob cannot recover because, although he was located at the scene of the accident and witnessed the accident, he did not suffer emotional distress from his observance of the accident. His only concern was that he might not get paid—this does not qualify as emotional distress. Also, he is not closely related to Suzi (he is not a relative at all), and therefore cannot recover. Doris also cannot recover under the bystander rule. She was 100 feet from the accident. This should qualify as “near” the accident. She was “horrified” by what she saw but “calmly” called an ambulance. She is Suzi’s mother and therefore satisfies the third requirement. Doris will not recover on these fact, however, because she has no physical manifestation of emotional distress. Jimmy cannot recover under the bystander rule. As Suzi’s father he is closely related to Suzi, and he has physical manifestations of his emotional distress (he is distraught, vomits, requires medication). He was not, however, near the scene of the accident and his emotional distress is not from his contemporaneous sensory perception of the accident. None of Bob, Doris, and Jimmy have a claim against Dan or Fanny’s for negligent infliction of emotional distress.