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Some Legal Anatomy: Thinking Like a Tort Lawyer

Without further ado, let’s explore some of these limitations on negligence recovery based on the facts of this relatively simple accident case:

Isadora Dunton was a famous opera star. On March 1, 2009, she and her husband Booth were pulling out of their driveway on to Main Street in the town of Elkton, West Dakota. Burton came speeding around a curve and hit their car broadside. Isadora, who was three months pregnant at the time, was severely injured. John, son of Isadora and Booth, was playing basketball in the driveway, about 25 feet from the point of the accident, heard the collision, and ran to the scene immediately. Isadora suffered the loss of sight in one eye and multiple internal injuries, and was hospitalized in serious condition. The baby suffered fetal distress and cardiac arrhythmia from the trauma of the accident, and was stillborn a week later. Four months later, on July 1, Isadora died as a result of her injuries.

Booth suffered minor facial lacerations. John was extremely upset by the accident. He subsequently became withdrawn, suffered a severe decline in his high school grades, and more or less “dropped out.” Lydia, a married daughter of Isadora, was also seriously affected by the accident. She became tense, impatient with her husband, cried a lot, and had difficulty sleeping. She also became difficult to work with and was skipped over for promotion. She also missed her mother.

Garrick was Isadora’s costar in many important productions and a close personal friend. He was extremely upset by her injury, suffered a nervous breakdown, and never quite fully recovered. Unable to find a comparable costar, his career was limited thereafter to minor supporting roles.

Burton, the other driver, was also seriously injured. He died a year later of unrelated causes.

The following examples consider the elements, special requirements, and limitations on relief for the different types of claims that may be asserted based on the Dunton accident. In analyzing the claims, focus on the claims that the plaintiffs could raise, even if some claims may be vulnerable to legal or factual challenge by the defendant or appear strategically dubious. Assume that West Dakota has a survival statute, a wrongful death statute that authorizes pecuniary and emotional damages for survivors, and that it recognizes claims for spousal consortium but has not decided whether children can recover for loss of parental consortium.

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