Elements of Negligence

1. Duty of care
2. Breach
3. Causation
4. Injury

Duty of care: foreseeability 

Defendant owes a duty of care to all persons who are foreseeably endangered by his conduct.

• Don’t as whether a particular defendant could have expected the result.  Instead, ask whether a “reasonable person” could do so
• Don’t ask if a particular harm is foreseeable. Ask if the category or type of harm is foreseeable

Dillon v. Legg

Background: Prior to this case, only a person who is in the “zone of danger” can be awarded the damages of distress.  This rule applies to the victim’s sister.  However, ther mother was not in the zone of danger despite she had eyewitnessed the accident.

Rule: A defendant’s liability for emotional distress caused to a plaintiff largely depends upon whether the harm was reasonably foreseeable, and foreseeability can be evaluated by considering factors such as:

(1) located near the scene: whether a plaintiff was located near the scene of an accident as opposed to some distance from it,

(2) sensory and contemporaneous observance: whether the shock alleged by the plaintiff resulted from his sensory and contemporaneous observance of the accident, and

(3) closely related: 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.

Thing v. La Chusa, 48 Cal.3d 644 (1989)

Rule: A plaintiff may not recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if she was not an eyewitness to the act that caused the injury.

Facts: The mother was nearby, but did not hear or see the accident.

Reasoning: The guidlines in Dillon should be refined to create greater certainty.

A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff:

(1) is closely related to the injury victim;

(2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and

(3) as a result suffers serious emotional distress-a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

“Drawing arbitrary lines is unavoidable if we are to limit liability and establish meaningful rules for application by litigants and lower courts.”

Justice Broussard Dissent: foreseeability and duty should determine liability in the case of negligent infliction of emotional distress, as they do in other aspects of tort law.

Goldstein v. Superior Court, 223 Cal.App.3d 1415 (1990)