Download - Emotional Harm
-
8/8/2019 Emotional Harm
1/36
Chapter IV The Duty Requirement:Non-physical Harm.
A. Emotional Harm
-
8/8/2019 Emotional Harm
2/36
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
-
8/8/2019 Emotional Harm
3/36
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!
-
8/8/2019 Emotional Harm
4/36
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)
-
8/8/2019 Emotional Harm
5/36
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.
-
8/8/2019 Emotional Harm
6/36
Chapter IV Emotional Harm
Should pain and suffering damages be recoverable even when
they are attendant on a physical injury?
-
8/8/2019 Emotional Harm
7/36
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
-
8/8/2019 Emotional Harm
8/36
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:
-
8/8/2019 Emotional Harm
9/36
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.
-
8/8/2019 Emotional Harm
10/36
Chapter IVEmotional 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.
-
8/8/2019 Emotional Harm
11/36
Chapter IVEmotional Harm
Falzone v. Busch
Three reasons for denying recovery:
2) Never allowed this kind of recovery before.
Common law evolves.
-
8/8/2019 Emotional Harm
12/36
Chapter IVEmotional 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
-
8/8/2019 Emotional Harm
13/36
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.
-
8/8/2019 Emotional Harm
14/36
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.
-
8/8/2019 Emotional Harm
15/36
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?
-
8/8/2019 Emotional Harm
16/36
Chapter IVEmotional Harm
Metro-North Commuter RR. v. Buckley
Held: Exposure to a cancer causing substance, even involving
physical contact, will not support recovery for emotionaldistress.
-
8/8/2019 Emotional Harm
17/36
Chapter IVEmotional Harm
Metro-North Commuter RR. v. Buckley
Does it make sense to allow recovery inFalzone, and not in
Metro-North?
-
8/8/2019 Emotional Harm
18/36
Chapter IVEmotional Harm
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
-
8/8/2019 Emotional Harm
19/36
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.
-
8/8/2019 Emotional Harm
20/36
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?
-
8/8/2019 Emotional Harm
21/36
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
-
8/8/2019 Emotional Harm
22/36
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.
-
8/8/2019 Emotional Harm
23/36
Fact Pattern #4: distress at injury to another
IsPortee consistent with Gammon: Was it foreseeable to
the defendant that the plaintiff would suffer serious
emotional distress?
-
8/8/2019 Emotional Harm
24/36
Fact Pattern #4: distress at injury to another
Plaintiffs close
relatives
People who witness the
accident
Plaintiffs close relatives who
witness the accident
-
8/8/2019 Emotional Harm
25/36
Fact Pattern #4: distress at injury to another
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
-
8/8/2019 Emotional Harm
26/36
Chapter IVEmotional 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.
-
8/8/2019 Emotional Harm
27/36
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.
-
8/8/2019 Emotional Harm
28/36
Chapter IVEmotional Harm
Johnson v. Jamaica Hospital
Hospital
Infant
Duty toavoid
physical
injury
Parents
Duty?
-
8/8/2019 Emotional Harm
29/36
Chapter IVEmotional Harm
Portee:
Elevator
Mfr.
Injured boy
Duty toavoid
physical
injury
Mother who is watching?
Other tenant who is
watching?
Father who hears later?
Duty?
-
8/8/2019 Emotional Harm
30/36
-
8/8/2019 Emotional Harm
31/36
Chapter IVEmotional 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.
-
8/8/2019 Emotional Harm
32/36
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
-
8/8/2019 Emotional Harm
33/36
Chapter IVEmotional Harm
Who can recover damages for emotional distress?
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.
-
8/8/2019 Emotional Harm
34/36
Chapter IVEmotional 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 wherethe bystander criteria are met
New York does not allow recovery (Johnson,Bovsun)
unless you are also in the zone of physical danger.
-
8/8/2019 Emotional Harm
35/36
Chapter IVEmotional Harm
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.
-
8/8/2019 Emotional Harm
36/36
Assignment
Monday : 341-349, 358 n.5 n.7 (SkipZuchowitz, p. 349)
359-367
Tuesday: 368-391
Thursday: 399-412
412-434