Real estate brokers owe their clients fiduciary duties—they owe third parties, including adverse parties in a real estate transaction, only duties imposed by statute. The statutory duties owed to third parties include a general obligation of honesty, fairness, and full disclosure. A broker’s specific duties with respect to any listing or information posted with a Multiple Listing Service are specified in Civil Code section 1088. Continue reading
In Thing v. La Chusa the California Supreme Court has held that a plaintiff “may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.”
May a sister recover as a bystander for the emotional distress she suffered when she witnessed the tragic death of her brother while they were scuba diving when she erroneously believed at the time of the incident that her brother had a heart attack – but later learned her brother’s death was caused by a defective regulator?
No. Thing requires a contemporaneous perception of what caused the injury. Since plaintiff sister did not meaningfully comprehend that a defective product caused the injury, she cannot satisfy the second Thing requirement. Fortman v. Förvaltningsbolaget Insulan AB.
The California Supreme Court, in a unanimous ruling, repudiates the common law “release rule.” Under the rule, a plaintiff’s settlement and release of liability of one joint tortfeasor also releases from liability all other joint tortfeasors. The common law rule’s rationale is that there can be only one compensation for a single injury and because each joint tortfeasor is liable for all of the damage, any joint tortfeasor’s payment of compensation in any amount satisfies the plaintiff’s entire claim. Continue reading
I recently posted here that the Second Circuit held that for a loss of consortium claim related to an asbestos related injury, the claimant need only be married to the injured party when the disease is diagnosed. The First Circuit has followed suit in Leonard v. John Crane, Inc. The court made this additional observation in Leonard, because Leonard’s husband, John, and voluntarily dismissed his personal injury claim against Crane:
John’s dismissal of his cause of action against Crane has no impact on Sandra’s ability to pursue her loss of consortium claim. They are separate causes of action. John’s dismissal was in any event without prejudice, and can have no arguable res judicata or collateral estoppel effect on Sandra’s loss of consortium claim.
In California, a spouse is permitted damages for loss of consortium for the personal injury or death of a spouse. The recovery for loss of consortium is limited to married couples. Individuals in relationships, boyfriends and girlfriends, or even couples who are engaged but not married, are not entitled to such damages. Continue reading