So what is that, then? Ministerial acts are ones where the actor has no choice about what to do. What is the point of this distinction? Why do we want immunity for discretionary acts?
Now, recall that the thing we're concerned about are things like allocation of resources.
The court says that the ME's only responsibility is to the public at large, not to this particular plaintiff. So even though the obligation he breached was ministerial, there was no special relationship here, so no liability.
All the same, there's no floodgates problem here (this is one of the reasons for immunizing discretionary acts).
When a government agency makes a glaringly irrational decision that leads to injury, we can impose liability.
Same thing with delay: if they make a plan that calls for a safety measure, they need to implement that in some reasonable time, or explain why the delay is not arbitrary?
Essentially, if you detect elements of policy and planning decisions, you can suspect that there will be immunity.
Defendants say the decision not to do the repairs was discretionary, and that therefore there should be no liability whatsoever. And if we want immunity, this is a potent strategy.
The court says the decision not to repair is indeed discretionary, but the decision not to put up additional signs was not, really. Both are discretionary, in the sense that neither is dictated by statute. But the kind of choice here makes a difference. There were elements of discretion here, surely, but the court labels signage as non-discretionary: it doesn't further a social, economic, or political goal. It's not fraught with policy considerations; decisions that are fraught with policy get immunity. Why? We don't want administrators worrying about liability all the time when they're exercising their legitimate chartered authority.
Of course, the decision is somewhat economic, but that's sort of a de minimis matter. We could, after all, say that everything is economic, and that would deprive the FTCA of all meaning. We don't want simply to mechanically apply some framework: we want to ask ourselves what the nature of the decision is.
So this is like Friedman, except that it's federal, and the the qualified immunity in Friedman is transmuted into complete immunity if the decision in question is one involving economic social or political concerns.
And hat about the person on the plane: some people might worry more than others. Different people who are exposed to the exact same negligence might suffer different harms. But in a plummeting aircraft, at least we don't really have to worry so much that they are faking the trauma: it's inherently terrifying.
So the court's holding is qualified: if he's not symptomatic, there's no recovery for the emotional distress.
Is his fear real? Well, he continues to smoke, so there's reason to think he's not the most health-conscious guy. So there is concern that he might be giving sort of a sham claim.
The majority opinion cites Gottshall, and claims that recovery only happens when distress falls into some category:
It's hard to draw a sensible line between degrees of physical impact. Here, it means not just any physical contact, but an immediacy between the physical impact and the distress.
Toxic harm/exposure cases are common, though. They have a lag time, too, with respect to the fear they inspire. Still, we rarely see recovery where people are symptom free. Perhaps to avoid expansion of asbestos litigation.
This is pretty different from Falzone: there we delimeted the parameters of recovery based on personal fright. Here it's more about just emotional trauma baed on horror. There's immediacy galore, but not fear.
The court notes the distress of being wrongly informed that a relative has just died. Still, if we compare this with Falzone, we're left wondering if Gammon recognizes a broader claim-- i.e., for all foreseeable distress?
This is pretty much a standard negligence approach: foreseeable severe emotional distress that would affect an ordinarily sensitive person.
So what manifestations of distress do we require? This hasn't really been answered yet, and the Gammon court doesn't have to go there. Courts vary wildly, though. See p. 285, note 8 (Sullivan): "repeated hysterical attacks," are good, but "headache and nausea" only count if they persist over a substantial period of time. So you see a recitation of a litany of symptoms, sometimes quite colorful.
Gammon opens the door pretty broadly. Zone of danger may be too demanding, but maybe this is too generous.
The harm here is indirect, so there's no recovery. The baby is probably unaware about any of this. Insofar as we care about tort law serving a deterrent function, maybe this is a bad result, though: the hospital was still negligent, but escapes being held accountable just because the baby came back ok. Because there has to be harm in order for there to be recovery.
Limitations on liability include other defendants (i.e., partial responsibility). Note that in vicarious liability the employees are also liable. Plus the hospital, of course.
Liability for Lucy can arise two ways: negligence (in hiring the staff and training them, or maybe in stacking the pots herself-- was she there?) and vicarious liability.
Start with the big stuff, of course. But here's where I slipped up: thoroughness in identifying defendants and theories of liability.
Organization: what duty was there (reasonable care)? Was there breach? What evidence do we have of the breach? What was the harm, and was it foreseeable?
We are not the judge, resolving the case: if cases don't fit perfectly, we should mention it.
Rare is the case that won't include respondeat superior. Rare is the case that will include res ipsa loquitur.
We'll pretty much always start up with "who is trying to recover from whom." We will either be dealing with a plaintiff who is afraid of a lawsuit, or a plaintiff who wants to sue. Those are the two question forms. :)
So start by listing who all is on one side, and who is on the other. Then look for the components of possible liability in each case. Later, we'll also look at causation and damages, but not yet.