Emotional Harm

8/8/2019 Emotional Harm

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Chapter IV The Duty Requirement:Non-physical Harm.

A. Emotional Harm


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Chapter IV

Duty

Emotional Distress

physical injury, emotional distress follows

threat of physical injury, emotional

distress results

direct victim of conduct that creates an

unreasonable risk of emotional distress

distress at injury to another

Breach

Causation

Damages

Recurringfact

patterns


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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!


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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)


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Emotional Distress: physical injury, emotional distress

follows.

Metro North at p. 272Rest. 2d of Torts 924 Harm to the Person

One whose interests of personality have beentortiously 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 theinvasion.


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Chapter IV Emotional Harm

Should pain and suffering damages be recoverable even when

they are attendant on a physical injury?


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Chapter IV Emotional Harm

Should pain and suffering damages be recoverable even when

they are attendant on a physical injury?

Pro recovery:

Real injury / loss.

Necessary to return to

pre-tort position.

Deterrence.

No more speculative

than economic loss

Con Recovery:

Not really compensatory

S*** happens

Windfall

Punitive

Speculative

Difficult to measure

Fraud


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Chapter IV: Emotional Harm

Act by

Driver

Falzone v. Busch

Act by

Driver

Physical

Injury to P.

Pain & Suffering,

Distress, Fright

Duty: act

creating

risk ofphysical

injury

Duty: act

creating riskof physical

injury

Fright to P.

Physical

Injury to P.

Is the injury a

natural &

proximate

result of the

act?

Usual tort case:


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Chapter IVEmotional 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.


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Falzone v. Busch


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.


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Falzone v. Busch


2) Never allowed this kind of recovery before.

Common law evolves.


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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


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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 immediatepersonal injury

3) Fright results in substantial bodily injury or sickness

4) May recover if the bodily injury or sickness wouldbe regarded as proper elements of damage had they

occurred as a consequence of direct physical injury.


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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 isarbitrary. 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: TheRowlandfactors point toward limiting an airlines liability

for emotional distress to those who momentarily fear that they may be

killed.


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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?


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Held: Exposure to a cancer causing substance, even involving

physical contact, will not support recovery for emotionaldistress.


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

Metro-North?


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

Metro-North?

Contact does not help separate valid from invalidclaims, because contact with carcinogens is common.

Problem of uncertain and unpredictable liability

Categorical rules are necessary


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Fact pattern #3: direct victim of conduct that creates anunreasonable 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, defendantis 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 legalprotection as is physical well being.

2) Limiting recovery to cases of impact, objective

manifestation, etc. would be arbitrary.


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Fact pattern #3: direct victim of conduct that creates anunreasonable risk of emotional distress

Are Gammon & MetroNorth reconcilable?

Doesnt exposing someone to asbestos foreseeably result in

serious emotional distress?


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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 defendants

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


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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.


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IsPortee consistent with Gammon: Was it foreseeable to

the defendant that the plaintiff would suffer serious

emotional distress?


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Plaintiffs close

relatives

People who witness the

accident

Plaintiffs close relatives who

witness the accident


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The plaintiff will have

close relatives who

suffer a serious

emotional injury?

People will be nearby,

witness the accident and

suffer a serious

emotional injury?

Defendant negligently creates a foreseeable risk that aperson will be killed. Is it also foreseeable to him that:

A close relative will be nearby

and witness the injury


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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.


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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.


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Johnson v. Jamaica Hospital

Hospital

Infant

Duty toavoid

physical

injury

Parents

Duty?


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Portee:

Elevator

Mfr.

Injured boy

Duty toavoid

physical

injury

Mother who is watching?

Other tenant who is

watching?

Father who hears later?

Duty?


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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.


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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


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Plaintiffs who are direct victims of anothers 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.


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Plaintiffs who indirectly suffer emotional distress because of

a direct injury to another?

Portee (and California) allow recovery, but only wherethe bystander criteria are met

New York does not allow recovery (Johnson,Bovsun)

unless you are also in the zone of physical danger.


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Problem #1:Marlene F. v. Affiliated Psychiatric MedicalClinic, 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 asindividuals, 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 wasalso 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.


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Assignment

Monday : 341-349, 358 n.5 n.7 (SkipZuchowitz, p. 349)

359-367

Tuesday: 368-391

Thursday: 399-412

412-434

Emotional Harm

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