I. II.

III. IV.

V.

Parties Butler v. Ascend Factual Context The Elevator that had maintenance performed by Ascend crashed causing the death of the Plaintiff Butler's sister. Legal Issue Whether Butler meets the four elements of an NIED claim. Question Presented Whether Butler met the four elements of an NIED claim when she smelt, heard, felt the effects of the elevator crash and when she ran to the eleventh floor looking for her sister instead of the first floor immediately. Brief Answer

III.

Brief Answer Close Relationship: Conclusion C. A court will likely conclude that Butler was Present. R. Recovery for NIED should be limited to relatives residing in the same household, marriage, parents, siblings, children, and grandparents of the victim. A. Butler was Tammys sister which is under the category of siblings. C. Therefore Butler meets the element of close realationship.

Presence: Conclusion The court will likely find that Butler was present at the injury- producing event. Rule (Citations) The second element of an NIED claim requires that the plaintiff be present at the scene of the injury- producing event at the time it ours. To establish presence, the plaintiff must contemporaneously be in close proximity and have sensory perception of the injury- producing event. Analysis A court will likely find that Ascend is liable for the emotional distress that Butler endured due to her sisters death. Like the defendant Wilks, Butler was also in close proximity because she was outside the elevator. She also experienced sensory perception because she heard the crash, felt the building shake, and smelt a burning sensation.

Conclusion A court will likely find that Ascend is liable for the emotional distress that Butler endured due to her sisters death, since she was present at the injury- producing event.
Awareness: Conclusion C. A court will likely conclude that Butler was aware of the effects of the elevator crash.

R. In order to be aware of the injury-producing event one must know the location of the victim seconds before, and be relatively certain that the victim is sustaining injuries from the incident. A. Butler knows exactly where her sister was at the time of the accident because she walked her to the elevator and watched her get on. She knew her sisters schedule, because Tammy would tell her the plans during their routine morning breakfasts before going their separate ways for the day. This is significant because Tammy rarely deviated from her schedule. Butler also meets the element of awareness because she was aware of the injuries that her sister was sustaining even though she hoped her sister had gotten off the elevator on the 10th floor instead of continuing with her plans as usual. C. The court will likely conclude that Butler was Present at the scene of the injury producing event. IV. Statement of Facts On August 3rd, 2012, Butler and Tammy walked to the elevator. The elevator door opened. Tammy boarded, and the door closed behind her. Butler left, but returned to the elevator when she realized that she did not deliver a message to Tammy. As Butler waited for the elevator to return she saw the elevator needle stop on the 11th floor. The elevator then continued, moving to the 10th floor when Butler heard a loud thud along with a cracking noise, and a high-pitched whine. She smelt burning oil through the elevator door. Next Butler heard a scream and a clattering noise. Butler noticed the elevator needle drop from the 10th floor to the 1st floor in a second. The building shook when the elevator crashed. Butler ran to the 11th floor and then to the 1st floor. Butler opened the door of the basement utility area and found Tammy's dead body. V. Discussion Awareness C. A court will likely conclude that Butler was aware of the effects of the elevator crash. The third element of an NIED claim requires that the plaintiff be aware of effects of the scene of the injury-producing event. RP. In order to be aware of the injury-producing event one must know the location of the victim seconds before, and be relatively certain that the victim is sustaining injuries from the incident. Positive Authority for Butler Krouse: A person may establish awareness as long as the plaintiff knows the victims position seconds before, and knows that the victim is sustaining injuries due to the injury- producing event.(Krouse v. Graham ) Facts: Husband was sitting in the drivers seat when his wife was taking out groceries with a friend on the passenger side which was close to the road. A speeding motorist was coming around the curve very fast and hit the wife killing her and the husband experienced it. Holding: The court held that the Husband could recover under an NIED claim. The court reasoned that because Krouse was aware of the impending injury that his wife was about to sustain seconds before the injury occurred that he was able to recover for NIED. Conclusion:

A court will likely find that Ascend is liable for the emotional distress that Butler endured due to her sisters death. Analysis: Like the defendant in Krouse, Butler knew exactly where her sister was when the injury- producing event occurred. She also knew that her sister was likely experiencing injuries due to the elevator crash. In order to be aware of the injury-producing event one must know the location of the victim seconds before, and be relatively certain that the victim is sustaining injuries from the incident. Affirmative Argument Ascend: Scherr v.Hilton Hotels If a plaintiff did not know the position of the victim seconds before, and did not know with substantial certainty that the victim was incurring injuries from the injuryproducing event cannot recover for NIED. Facts: A wife saw a hotel catch fire of where her husband was supposed to be staying on the television in flames and she is claiming that she suffered emotional distress. Holding: The court held that she was unable to recover for NIED even if she was present at the injury-producing event. Reasoning: The court reasoned that even if they give her the element of presence that she cannot prove that she met the element of awareness because she did not know the exact location of her husband seconds before the event and she also did not know whether he was sustaining any type of injury only that he was supposed to be in the building. The plaintiff Ascend will likely argue that Butler did not know where her sister was seconds before the injury- producing event. They will argue that because she ran from the 14th floor to the 11th floor that she was unaware that her sister was even in the elevator because she did not immediately run from the 14th floor to the first floor. They will also argue that she was unaware of the injuries that her sister was sustaining because she could not see her sister being hurt by the injuries because of the elevator doors being closed and she having to open them up.

Counter Argument: Ascend will likely argue that Butler was not aware of the injuries that her sister was sustaining because she did not even know where to go or for certain that her sister was even in the elevator which is why she ran to the 10th floor instead of the 1st floor where the accident actually ended.

Rebuttal: The reason why Butler ran to the 10th floor is because she was hoping that her sister had deviated from her plans. She was wishing that the accident would not have happened to her sister. She also knew that her sister was sustaining injuries. She may have not known

VI.

the exact injuries being sustained but she did know that her sister was likely to have been injured or dead even without seeing the accident takes place. Butler was there while the accident was in progress. Conclusion: o The court will likely find that Butler satisfied the Third element of an NIED claim by proving that she was aware of the effects of the injury- producing event. Conclusion : The court will likely rule that Butler satisfied all four elements of an NIED claim because she was closely related, and because she was both present and aware of the injury producing event.