1. Does the victim, through her daughter, have any cause of action in common law tort? Can the injury requirement be met for the general negligence tort? for recklessness?
2. Is there a breach of duty here that can support a business tort? Are there damages recoverable in business torts?
3. Could this be actionable "negligent infliction of emotional distress" (NIED)? in some states? Can you demonstrate balance in the elements of negligence to persuade a court that NIED here will not open the floodgates?
4. How does the victim's dementia affect the torts case? Is she an eggshell plaintiff? Could she have been contributorily negligent? Can she have been both at the same time?
5. Could the outcome of the regulatory investigation affect proof or liability in a tort case?
6. Does any tort theory rest in the daughter as plaintiff on her own behalf? Is there any way to plaintiff-bystander liability?
7. Low temperatures in Los Angeles in the last week were only in the 50s (F), but northern cities have been in the grip of below-zero record lows. Suppose the victim had been outside in Chicago and suffered frostbite. How does that change the disposition of her tort claims? her daughter's?
8. Further entertaining the idea that the victim suffered physical injury, can the defendant make dispositive arguments on duty? on causation? What's the difference? Could there be a "scope of liability" problem in the terms of the Third Restatement?
9. There are two healthcare facilities involved. Could both be defendants? Would both be liable? Would liability be joint or several? apportioned? to what effect?
🌠 Coming this June from Carolina Academic Press!
The Media Method:
Teaching Law with Popular Culture
Edited by LSU Law Prof. Christine A. Corcos, @LpcProf, Media Law Prof Blog
With contribution on torts by yours truly