subject: legal documents

Suppose a more senior attorney, Dewey D. Delaney, has called you into his office and told you the following:

The Firm has recently been retained by Jack Montagne to file suit against Asten Lift Company, Ltd. ("Asten"), a manufacturer of double and triple chair ski lifts based in Colorado. The file number is 98876-001. The basis of the suit he seeks to bring is an accident that occurred on Devil's Mountain, located in Pennsylvania. The accident involved his stepsister, Monica Gordon, who was thrown out of a triple chair lift and killed when a cable broke. Due to the circumstances of the accident, I think we might be able to state a cause of action for negligent infliction of emotional distress.

The facts of the case as I understand them are as follows. Jack, who is apparently an avid skier, took a ski vacation last winter with his stepsister, Monica. The two went to Devil's Mountain, as I said, where they rented a chalet for two weeks. Every morning they would have a quick breakfast, step outside, snap on their skis and ski the one hundred yards to the base of the mountain and the Diamond Triple Chair Lift, which would take them to the midpoint of the mountain. From there they would ride the Devil Triple Chair Lift (the "Devil Chair") to the peak. Once at the peak, they would separate, Jack to ski the wide open "bowls" on the back of the mountain and Monica to ski the trails on the face of the mountain. However, they had a standing agreement to meet for lunch at one o'clock at Tipler's, the restaurant at the top of the Devil Chair. They had consistently followed this schedule for seven days, and would not have deviated from it on the eighth day but for the accident.

On the day of the accident, Jack was standing near the top of the Devil Chair waiting for Monica and enjoying the sunshine. It was 12:50 p.m. Waiting for her there had become his habit. Ever since their first day on the mountain she had timed her skiing so that her last run before lunch was down Go Devil, the trail which wound back and forth under the Devil Chair, and ended at the midpoint. A run down Go Devil would take approximately half an hour. Then she would take the Devil Chair back to the top and Tipler's, a ride that took

approximately twenty-five minutes. Jack had met her at the top of the chairlift every day, and she had consistently arrived within five minutes of the appointed time. Jack had been scanning the skiers as they came into view for about five minutes when he heard a loud noise that sounded like a large branch breaking off of a tree. The lift slowed to a stop and the chairs rolled back approximately 25 feet. Then, as Jack and those around him watched in horror, a wave raced up the cable, abruptly pulling the chairs ten or twelve feet up into the air and dropping them again just as suddenly. The chairs had no safety bar and Jack, who could see approximately ten percent of the chairs from his vantage point, saw people hurled out of their chairs and to the ground, which he knew was at times a 35 foot drop. Some skiers were miraculously able to hold on and remain in the chairs.

Jack could think only of Monica, who he knew had been riding the lift but who might now be lying injured or dead on the mountain. Jack started down the mountain, frantically seeking Monica in her polka-dotted ski jacket. Other skiers and the ski patrol were rushing to help those who had been thrown to the ground. Screams and moans filled the air and while some skiers writhed in pain, others seemed not to move at all. Dark blotches of blood stained the snow.

When he had gone approximately one hundred yards down the mountain, Jack still had not seen his stepsister and the trail wound away from the lift. He was almost frantic with fear and worry. Abandoning the trail to continue his search, Jack skied down directly under the chair. As he made his way through the crunchy snow and around the rocks, Jack reassured the skiers lying on the ground and those clinging to the chairs that help was en route, but he did not stop. Then he saw her. She lay on the ground, perfectly still, near a large rock. Jack took off his skis and made his way to her side. She made no sound. As he held her, he saw the gash and the blood caked to the back of her head. Her pulse was weak and irregular. Jack covered her with his jacket. Within ten minutes help arrived, and Monica was taken down to the base of the mountain in a stretcher. Jack never left her side. Within minutes of reaching the makeshift emergency center she died of head injuries sustained in the fall. She had never regained consciousness. Less than four minutes had passed from the moment Jack witnessed the skiers being thrown from their chairs and the moment he reached Monica.

Since the accident, Jack has had recurring nightmares, has suffered severe depression, and has experienced significant weight loss. He has been under continuing medical supervision for these conditions, none of which afflicted him prior to the accident.

Jack and Monica had been close since his mother and her father were married when he was 16 and she was 15. Both were only children who had longed for a sibling. At the time of the accident, both were in graduate school in Philadelphia. They talked often and met regularly for meals. Ever since Monica's father had died three years ago, and Jack's mother six months later, the two had taken a skiing vacation around Christmas and New Years so that they could spend the holidays together.

Suppose you are to prepare a memo on whether Jack Montagne could successfully state a cause of action for negligent infliction of emotional distress.

For this assignment you will only draft parts of the memo. We will be using this same hypothetical for all assignments in this module.

You are ONLY to type a heading and an issue statement.