http://www.nypost.com/news/regionalnews/9185.htm
Maybe Eddie, Taoist, Bama, or loophole could add as they see fit....
Torts has been my least favorite class and it was last yearr, but I'll give this a try.
The question is whether P has a cause of action against the City of NY (D) for injuries she suffered in a ferry boat accident. Since I have heard nothing in the facts that indicate this accident was the result of intentional behavior,P will be bringing a claim of negligence.
To make the prima facie case for negligence, P must show duty, breach, causation and harm.
If I had more time now I would analyze each of those elements, but here is my "on the run" version:
NYC has a duty of utmost care- must inspect the ferry boat, screen captains etc.
The duty of care was breached when the ferry boat slammed into the pier
The accident was the actual and proximate cause of P's injuries (but for the accident she would not have been harmed, it is foreseeable that this kind of accident would cause harm)
The negligence might best be proved by Res Ipsa Loquitor - Ferry boats don't slam into piers unless there is negligence
I just don't know enough about the facts to analyze the negligence element
Harm- P suffered physcial harm (back injury),
Damages- Jury will decide the amount but with guidance from the court so the $200 mil is likely WAY out of reach.
There's also an issue of negligent infliction of emotional distress. There are two major standards that courts use to determine emotional distress.
The first is the impact rule. Only Florida still holds to this very strict method of determining emotional distress, but even there, any person involved in an accident, like this, is assumed to have been impacted. Even if she weren't assumed to have been impacted, it appears that she succeeds under two of the major exceptions allowed for this. She was trying to avoid physical danger and she was slightly injured in the incident.
The second, majority, rule is the zone of impact rule. This is where the fright is caused by a reasonable fear of physical injury. In this case, she probably had a reasonable fear of physical injury, there's no evidence that she was unconscious or really unobservant.
Under this second standard, she might have some difficulty depending on what level of physical manifestations are required. She was only out of work for two days, she hasn't been able to sleep for two weeks. Some jurisdictions require physical symptoms, more than just transient symptoms (described as vomiting in Sullivan v. Boston Gas). It's iffy whether she can prove this greater amount of physical symptoms. Other courts require only severe emotional distress. Under this standard, she might recover, depending on the proof she's able to present. If she saw others injured, that would help her case. Finally, some courts split the difference by requiring some objective proof of distress, like psychiatric consultation and the like. Under this standard, her suit might be premature. She might have been better served by waiting until she had this sort of evidence.
Courts have typically held that in order to recover for negligent infliction of emotional distress (her only real claim) there either had to have been some sort of verifiable physical impact or a special relationship (typically only spousal or close i.e. blood ties type are recognized here) to someone who had the physical impact, provided she was within the 'zone of danger'. I don't think she has a very strong claim on either of these requirements. If she can prove a valid physical injury (and not simply "back pain") then she can sue for the whole ball of wax, but otherwise I think she's on weak footing here.
As far as the actual negligence claim, if it was pilot error, she has a pretty strong respondeat superior argument against the city, and even on the mechanical failure element she can argue a simple negligence claim, given the heightened standard of care to which common carriers are held.
However, I think the wealth of valid serious claims (injury, death, etc) will end up sweeping this one under the rug, so to speak. I think that she would have been wise to wait and collect some documentary evidence of her psychic harm before filing, in my humble opinion, she loses with little fanfare.
Sorry. This would probably be a "C" answer at best on an exam. Much, much, much more analysis is needed on the elements.
Maybe Eddie, Taoist, Bama, or loophole could add as they see fit....
Torts has been my least favorite class and it was last yearr, but I'll give this a try.
The question is whether P has a cause of action against the City of NY (D) for injuries she suffered in a ferry boat accident. Since I have heard nothing in the facts that indicate this accident was the result of intentional behavior,P will be bringing a claim of negligence.
To make the prima facie case for negligence, P must show duty, breach, causation and harm.
If I had more time now I would analyze each of those elements, but here is my "on the run" version:
NYC has a duty of utmost care- must inspect the ferry boat, screen captains etc.
The duty of care was breached when the ferry boat slammed into the pier
The accident was the actual and proximate cause of P's injuries (but for the accident she would not have been harmed, it is foreseeable that this kind of accident would cause harm)
The negligence might best be proved by Res Ipsa Loquitor - Ferry boats don't slam into piers unless there is negligence
I just don't know enough about the facts to analyze the negligence element
Harm- P suffered physcial harm (back injury),
Damages- Jury will decide the amount but with guidance from the court so the $200 mil is likely WAY out of reach.
There's also an issue of negligent infliction of emotional distress. There are two major standards that courts use to determine emotional distress.
The first is the impact rule. Only Florida still holds to this very strict method of determining emotional distress, but even there, any person involved in an accident, like this, is assumed to have been impacted. Even if she weren't assumed to have been impacted, it appears that she succeeds under two of the major exceptions allowed for this. She was trying to avoid physical danger and she was slightly injured in the incident.
The second, majority, rule is the zone of impact rule. This is where the fright is caused by a reasonable fear of physical injury. In this case, she probably had a reasonable fear of physical injury, there's no evidence that she was unconscious or really unobservant.
Under this second standard, she might have some difficulty depending on what level of physical manifestations are required. She was only out of work for two days, she hasn't been able to sleep for two weeks. Some jurisdictions require physical symptoms, more than just transient symptoms (described as vomiting in Sullivan v. Boston Gas). It's iffy whether she can prove this greater amount of physical symptoms. Other courts require only severe emotional distress. Under this standard, she might recover, depending on the proof she's able to present. If she saw others injured, that would help her case. Finally, some courts split the difference by requiring some objective proof of distress, like psychiatric consultation and the like. Under this standard, her suit might be premature. She might have been better served by waiting until she had this sort of evidence.
Courts have typically held that in order to recover for negligent infliction of emotional distress (her only real claim) there either had to have been some sort of verifiable physical impact or a special relationship (typically only spousal or close i.e. blood ties type are recognized here) to someone who had the physical impact, provided she was within the 'zone of danger'. I don't think she has a very strong claim on either of these requirements. If she can prove a valid physical injury (and not simply "back pain") then she can sue for the whole ball of wax, but otherwise I think she's on weak footing here.
As far as the actual negligence claim, if it was pilot error, she has a pretty strong respondeat superior argument against the city, and even on the mechanical failure element she can argue a simple negligence claim, given the heightened standard of care to which common carriers are held.
However, I think the wealth of valid serious claims (injury, death, etc) will end up sweeping this one under the rug, so to speak. I think that she would have been wise to wait and collect some documentary evidence of her psychic harm before filing, in my humble opinion, she loses with little fanfare.
Sorry. This would probably be a "C" answer at best on an exam. Much, much, much more analysis is needed on the elements.
