Chapter IV The Duty Requirement:

Non-physical Harm.

A. Emotional Harm
 Chapter IV
Duty
Emotional Distress
physical injury, emotional distress follows
threat of physical injury, emotional
Recurring distress results
fact
patterns
direct victim of conduct that creates an
unreasonable risk of emotional distress
distress at injury to another
Breach
Causation
Damages
 Chapter IV The Duty Requirement:
Non-physical Harm.

By way of background:
Where negligence causes physical injury, and emotional
distress accompanies the injury:
Duty
Breach
Causation
Damages The issue is treated as
one of damages!
 Chapter IV The Duty Requirement:
Nonphysical Harm
By way of background --
Measuring damages in a tort case where physical injury has
occurred:
The goal: Restore the plaintiff to her pre-tort position
Special damages: medical expenses, lost earnings
General: compensation for non pecuniary losses, pain
and suffering (emotional distress)
Emotional Distress: physical injury, emotional distress
follows.
Metro North at p. 272
Rest. 2d of Torts § 924 Harm to the Person

One whose interests of personality have been

tortiously invaded is entitled to recover damages for
past or prospective

(a) bodily harm and emotional distress;

(b) loss or impairment of earning capacity;

(c) reasonable medical and other expenses; and

(d) harm to property or business caused by the

invasion.
Chapter IV Emotional Harm

Should pain and suffering damages be recoverable even when

they are attendant on a physical injury?
Chapter IV Emotional Harm

Should pain and suffering damages be recoverable even when

they are attendant on a physical injury?

Pro recovery: Con Recovery:

Real injury / loss. Not really compensatory

Necessary to return to S*** happens
pre-tort position. Windfall
Deterrence. Punitive

No more speculative
than economic loss Speculative
Difficult to measure
Fraud
 Chapter IV: Emotional Harm
Usual tort case: Falzone v. Busch

Act by Act by
Duty: act Driver Driver
Duty: act
creating
creating risk
risk of
of physical
physical
injury Is the injury a
injury
natural &
Physical Fright to P. proximate
Injury to P. result of the
act?

Pain & Suffering, Physical

Distress, Fright Injury to P.
 Chapter IV
Emotional Harm
Falzone v. Busch
Three reasons for denying recovery:
1) Not a natural and proximate result of his negligent act.
2) Never allowed this kind of recovery before.
3) Flood of litigation would occur where injuries could be
feigned and damages would rest upon conjecture.
 Chapter IV
Emotional Harm
Falzone v. Busch
Three reasons for denying recovery:
1) Not a natural and proximate result of his negligent act.
In other contexts, fright has been recognized as the
proximate cause of physical injury.
Whether fright can really, seriously impact your health
is properly determined by medical evidence.
 Chapter IV
Emotional Harm
Falzone v. Busch
Three reasons for denying recovery:
2) Never allowed this kind of recovery before.

Common law evolves.

 Chapter IV
Emotional Harm
Falzone v. Busch

3) Flood of litigation would occur where injuries could be

feigned and damages would rest upon conjecture.
There are other safeguards against fraud
No evidence of a “flood” in other jurisdictions, and
anyway, proper response is to add more courts
Fact pattern #2:
threat of physical injury, emotional distress results
(plaintiffs who are in the zone of physical danger)

Falzone v. Busch
1) Negligence
2) Causes fright from a reasonable fear of immediate
personal injury
3) Fright results in substantial bodily injury or sickness
4) May recover if the bodily injury or sickness would
be regarded as proper elements of damage had they
occurred as a consequence of direct physical injury.
Fact pattern #2:

Falzone (p. 261): Where negligence causes fright from a reasonable fear of
immediate personal injury, and fright results in substantial bodily injury or
sickness, damages for emotional distress are recoverable.
The logic: Limiting recovery to cases in which there is impact or contact is
arbitrary. Whether fright has caused serious injury is a question of proof.
Lawson, n. 7, p. 266 (Cal.App. 1999): Bystanders who observe an
airplane crash cannot recover damages for emotional distress, even if they
momentarily feared for their own safety.
The logic: The Rowland factors point toward limiting an airline’s liability
for emotional distress to those who momentarily fear that they may be
killed.
Chapter IV: Emotional Harm

Metro-North Commuter RR. v. Buckley

Plaintiff exposed to asbestos, no showing of physical injury
(yet).
Increased risk of cancer, by 1% to 5%
Can he recover damages for emotional distress stemming from
his fear of cancer?
 Chapter IV
Emotional Harm
Metro-North Commuter RR. v. Buckley

Held: Exposure to a cancer causing substance, even involving

physical contact, will not support recovery for emotional
distress.
 Chapter IV
Emotional Harm
Metro-North Commuter RR. v. Buckley

Does it make sense to allow recovery in Falzone, and not in

Metro-North?
 Chapter IV
Emotional Harm

Does it make sense to allow recovery in Falzone, and not in

Metro-North?
Contact does not help separate valid from invalid
claims, because contact with carcinogens is common.
Problem of uncertain and unpredictable liability
Categorical rules are necessary
Fact pattern #3: direct victim of conduct that creates an
unreasonable risk of emotional distress

Gammon v. Osteopathic Hospital of Maine

Where defendant should have reasonable foreseen that serious
emotional distress would result from his negligence, defendant
is subject to liability. Serious emotional distress is distress that
“a reasonable person, normally constituted, would be unable to
adequately cope with.”
The logic: 1) Psychic well being is as much entitled to legal
protection as is physical well being.
2) Limiting recovery to cases of impact, objective
manifestation, etc. would be arbitrary.
Fact pattern #3: direct victim of conduct that creates an
unreasonable risk of emotional distress

Are Gammon & MetroNorth reconcilable?

Doesn’t exposing someone to asbestos foreseeably result in

serious emotional distress?
Fact Pattern #4: distress at injury to another

Portee v. Jaffee
What are the objections to imposing liability?
• Liability might not be commensurate with the defendant’s
culpability
• Limited nature of the interest being protected
•deep, intimate familial ties
•death of loved one
•traumatic sense of loss that witness at the scene suffers
Fact Pattern #4: distress at injury to another
Portee v. Jaffee
A plaintiff may recover for negligently inflicted
emotional distress if he or she proves:
1. Negligence that caused death or serious physical injury
to a victim.
2. A marital or intimate family relationship with the
victim.
3. Observation of the death or injury at the scene of the
accident.
4. Resulting severe emotional distress.
Fact Pattern #4: distress at injury to another

Is Portee consistent with Gammon: Was it foreseeable to

the defendant that the plaintiff would suffer serious
emotional distress?
 Fact Pattern #4: distress at injury to another

Plaintiff’s close People who witness the

relatives accident

Plaintiff’s close relatives who

witness the accident
 Fact Pattern #4: distress at injury to another
Defendant negligently creates a foreseeable risk that a
person will be killed. Is it also foreseeable to him that:

The plaintiff will have People will be nearby,

close relatives who witness the accident and
suffer a serious suffer a serious
emotional injury? emotional injury?

A close relative will be nearby

and witness the injury
 Chapter IV
Emotional Harm
Palsgraff v. Long Island Railway (p. 419)
Cardozo: “If no hazard was apparent to the eye of ordinary
vigilance, an act innocent and harmless, at least to outward
seeming, with reference to [the plaintiff] did not take to itself
the quality of a tort because it happened to be a wrong, though
apparently not one involving the risk of bodily insecurity, with
reference to someone else.”
There is no duty to an unforeseeable plaintiff.
Fact pattern # ???

Johnson v. Jamaica Hospital:

While it is foreseeable that parents of a child kidnapped from a
hospital will suffer emotional distress, they have no cause of
action against the hospital because the hospital owed no duty
to them directly.
 Chapter IV
Emotional Harm
Johnson v. Jamaica Hospital

Hospital

Duty to
avoid Duty?
physical
injury

Infant Parents
 Chapter IV
Emotional Harm
Portee:
Elevator
Mfr.
Duty to
avoid Duty?
physical
injury

Injured boy Mother who is watching?

Other tenant who is
watching?
Father who hears later?
 Chapter IV: Emotional Harm

Who can recover damages for emotional distress?

•Plaintiffs who suffer a physical injury as the result of

someone’s negligence?
•Plaintiffs who are in the “zone of physical danger” and fear
for their own safety?
•Plaintiffs who are “direct victims” of another’s negligence and
who suffer emotional distress?
•Plaintiffs who “indirectly” suffer emotional distress because
of a direct injury to another?
 Chapter IV
Emotional Harm

Who can recover damages for emotional distress?

Plaintiffs who suffer a physical injury as the result of someone’

s negligence?
Recovery for the emotional distress that stems from the injury
allowed in all jurisdictions.
 Chapter IV: Emotional Harm

Who can recover damages for emotional distress?

Plaintiffs who are in the “zone of danger” and fear for their
own safety?
Old rule: only if there was an impact
New rule: Recovery generally allowed.
BUT: Metro-North: only where physical injury is imminent
Lawson (airplane crash case) disagrees
 Chapter IV
Emotional Harm
Who can recover damages for emotional distress?

Plaintiffs who are “direct victims” of another’s negligence and

who suffer emotional distress?
The “dead body” and “message of death” cases allow recovery.
Gammon allows recovery. California (Molien v. Kaiser Hosp,
negligent diagnosis of syphillis, told to tell husband).
But, Johnson v. Jamaica Hospital: foreseeability standing
along does not create a duty.
 Chapter IV
Emotional Harm
Who can recover damages for emotional distress?

Plaintiffs who “indirectly” suffer emotional distress because of

a direct injury to another?
Portee (and California) allow recovery, but only where
the “bystander” criteria are met
New York does not allow recovery (Johnson, Bovsun)
unless you are also in the zone of physical danger.
 Chapter IV
Emotional Harm
Problem #1: Marlene F. v. Affiliated Psychiatric Medical
Clinic, Inc., 48 Cal. 3d 583 (1989)
• the therapist"undertook to treat both [mother and son] for their intra-
family difficulties by providing psychotherapy to both . . . ."
• the counseling was not directed simply at each mother and son as
individuals, but to both in the context of the family relationship.
• in these circumstances, the therapist, as a professional psychologist,
clearly knew or should have known in each case that his sexual molestation
of the child would directly injure and cause severe emotional distress to his
other patient, the mother, as well as to the parent-child relationship that was
also under his care. His abuse of the therapeutic relationship and
molestation of the boys breached his duty of care to the mother as well as to
the children.
 Assignment

Monday : 341-349, 358 n.5 – n.7 (Skip Zuchowitz, p. 349)

359-367
Tuesday: 368-391
Thursday: 399-412
412-434