Definition of Legal Terms Essay

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Duty of Care

As requested, the author of this report shall be defining a number of terms from a legal and "duty of care" perspective. The questions that will be answered will center on subjects such as the rescue doctrine, whether a fetus injured in utero can collect damages, the family-purpose doctrine, the negligent infliction of emotional distress, the attractive nuisance doctrine, the dram shop law and the duty to rescue someone in distress coupled with the potential liability in doing the same. While these laws tend to very a bit from state to state, they are usually fairly consistent when comparing any one given state to another.

Terms Defined

Rescue Doctrine

The rescue doctrine, as defined by Cornell University, is the idea that a person who creates danger and peril for someone else can be held liable if a third person attempts to rescue and help the imperiled party and becomes injured or killed in the process. For example, presume person A is walking down the sidewalk and happens to bump into person B. And knocks that person off of the sidewalk and into the street. At precisely that moment, assume that a car is coming in the general direction of person B. As they lie stricken in the street. If person C. then swoops in and grabs person B. And pulls them to safety yet is clipped by the car as it passes, then person A (the person who knocked the woman in the street) would be liable for the injuries to person C. Further, if person B (the initial victim) is injured, then person A would be liable for that person's injuries as well. It should be noted that intent does not matter as negligence is simply when someone does not exercise proper care. If the collision between person A and person B. was because person A was not watching where they were going, person A is still no less potentially liable and would quite likely lose in court for any injuries to either person (Cornell, 2015).

Recovery of Damages to Fetus

The next question pertains to the idea of whether a fetus can recover for injuries for damage suffered in utero. Specifically, the question is whether the defendant in such a case can be held liable for damages to the fetus. Presumably, this question would hold whether or not the fetus is ever actually born. The general answer to the question is that if there can be a causal link made between an injury to a mother and a concurrent injury to the fetus, then the person (or entity) responsible can be held liable. For example, if a pregnant woman is injured at work and the fetus is fine, then the workers compensation insurance for the employer would likely cover everything. However, the worker's compensation insurance does not generally hold true for the fetus as the fetus is not an "employee," thus that would be a separate action. Either the born child can eventually sue the employer or someone can do so on the fetus/chlid's behalf. For a personal claim between the mother/fetus and another person, there would indeed be potential liability but what kind would depend on the depth and breadth of the injuries (Vault, 2015).

Family-Purpose Doctrine

The family purpose doctrine pertains to liability insurance as it relates to the driving of automobiles. The doctrine basically states that if a family member of a car's owner gets into an accident and the driver of the car is liable for damages, then the person who owns the car is on the hook from a liability standpoint. Again, this would only pertain to family members. For example, let it be assumed that Bob owns a 2006 Lexus sedan and his 21-year-old son Michael is allowed to drive the car. Let it also be assumed that Bob has the proper liability insurance on the car and that Michael is an authorized driver. If Michael gets into an accident with another car and it is Michael's fault, it is assumed that Bob's insurance will be the one getting the bill for the accident. This would hold true even if Michael was driving the car without permission. It would also hold true if Michael was not licensed or insured to drive the car. Again, if a family member of the car's owner is driving the car, an accident occurs and the person driving the car (the family member) is at fault, then the car's owner is the one that will be held liable.

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This pertains to any damages including to the cars themselves, other property (fences, etc.) and harm to people (Nolo, 2015).

Negligent Infliction of Emotional Distress

Negligent infliction of emotional distress, commonly shortened to "NIED," is a "personal injury claim that arises when one person (the defendant) acts so carelessly that he or she must compensate the injured person (the plaintiff) for his or her mental or emotional injury" (Boeschen, 2015). Generally speaking, there are three general requirements that, if any are met, can lead to a successful emotional distress claim under this doctrine. They are as follows:

1) The conduct of the defendant must have caused some sort of physical contact or impact, even if minor (Boeschen, 2015).

2) The plaintiff was in some sort of "zone of danger" because of the negligent defendants actions or inactions (Boeschen, 2015).

3) The peril or negligence must have been foreseeable in a way that the defendant could have reasonable acted to prevent the emotional harm to the plaintiff (Boeschen, 2015).

Attractive Nuisance Doctrine

The attractive nuisance doctrine is part of the broader subject of tort law. As stated by U.S. Legal, the doctrine of attractive nuisance is "premised on the belief that one who maintains a dangerous condition which is likely to attract children on their property is under a duty to post a warning or take affirmative action to protect children from the dangers of that attraction" (U.S. Legal, 2015). Going a step further, if a child is endangered from an attractive nuisance and someone is injured trying to save the child, the prior-mentioned rescue doctrine would apply and the home/landowner would be responsible for any injuries to the child or the rescuer. Examples of attractive nuisances would include stacks of building materials, swimming pools and so forth. It would generally not include "natural" items such as ponds or trees. For there to be liability, the condition or nuisance has to be the direct creation of the landowner or tenant.

Dram Shop Law

Dram show law is a doctrine that exists in most (but not all) states and pertains to the practice of selling alcohol to someone that is obviously intoxicated or "close to it." Generally, if dram shop law is in effect, a server of alcohol is liable for any damages created or people killed/injured as a result of alcohol being served to that person. For example, let it be assumed that Bob is a bartender and serves alcohol to Stan. Stan keeps ordering drinks and Bob keeps selling him the alcohol. If Stan then leaves the establishment and gets into his car and then kills someone in a DUI accident, then Bob could be held liable. Dram shop law is not absolute, however. For example, the state of California has outlawed strict liability under the dram law statute because the drunk obviously bears some liability for what he/she drinks and what he/she does while being drunk or otherwise influenced by alcohol. However, any bartender or seller of alcohol should be careful and should refuse to sell alcohol to someone that intoxicated. That is their right under the law and they will generally be protected if they invoke it (Law.com, 2015).

Duty to Rescue

When it comes to whether or not it is required to rescue someone in distress, the answer is generally "no." There are exceptions, of course. For example, if a childcare provider sees a child under her care in distress, then she would have a duty. A nurse in a hospital would need to care for a person that comes to an emergency room, generally speaking. However, if a random stranger sees someone in distress, they are not technically in any way inclined or required to do anything and this holds true even if death is possible. In the case of a stranger, the only usual exception would be if the peril or danger is caused by the stranger him or herself. Otherwise, no duty exists. However, the very moment that an attempt to help is started, there is an iron-clad duty to care and, further, any injuries sustained during the rescue attempt can be held against the rescuer (Edelman, 2013).

Conclusion

As can be seen from the definitions and terms above, the civil and tort laws can be a bit tricky. They can be hard to navigate and figure out sometimes and what is "reasonable" under the law may seem odd. Such is the case with the law......

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