Title: Chapter IV Duty Nonphysical Harm
1Chapter IV Duty Nonphysical Harm
The prima facie case in negligence Duty Emotiona
l Distress Economic Loss Breach
Causation Damages
2Chapter IV Duty Nonphysical Harm
A. Emotional Harm If a persons negligence
(that is to say, failure to use reasonable care)
results in emotional harm but not an initial
physical injury is there liability?
3Emotional Distress
physical injury, emotional harm
consequences follow threat of physical
injury, emotional harm results conduct
directed at you creates an unreasonable risk
of emotional harm emotional harm caused by a
physical injury to another person
Fact Pattern 1 2 3 4
Recurring fact patterns
4Emotional Distress Fact Pattern 1 physical
injury, emotional harm consequences follow
The rule Where negligence has resulted in
physical injury -- The plaintiff is entitled to
an award of money to 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)
5Emotional Distress 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.
6Emotional Distress Fact Pattern 2 threat of
physical injury, emotional distress results
(plaintiffs who are in the zone of physical
danger)
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 airlines liability for emotional distress to
those who momentarily fear that they may be
killed. Metro-North Commuter RR. v.
Buckley Exposure to a cancer causing substance,
even involving physical contact, will not support
recovery for emotional distress.
7Emotional distressFact 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.
8Emotional Distress Fact Pattern 4 Distress
at injury to another
- Portee v. Jaffee
- What are the objections to imposing liability to
everyone who foreseeably suffers emotional
distress? - 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 -
9Fact 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.
10Fact 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?
11Fact Pattern 4 Distress at injury to another
Portee
Elevator Mfr.
Duty to avoid physical injury
Duty?
Injured boy
Mother who is watching? Other tenant who is
watching? Father who hears later?
12Fact Pattern 4 distress at injury to another
People who witness the accident
Plaintiffs close relatives
Plaintiffs close relatives who witness the
accident
13Fact 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
People will be nearby, witness the accident and
suffer a serious emotional injury?
The plaintiff will have close relatives who
suffer a serious emotional injury?
A close relative will be nearby and witness the
injury
14Fact 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.
15Chapter 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.
16Chapter IV Emotional Harm
Johnson v. Jamaica Hospital
Hospital
Duty to avoid physical injury
Duty?
Parents
Infant
17Chapter IV Emotional Harm
- Who can recover damages for emotional distress?
- Plaintiffs who suffer a physical injury as the
result of someones negligence? - Plaintiffs who are in the zone of physical
danger and fear for their own safety? - Plaintiffs who are direct victims of anothers
negligence and who suffer emotional distress? - Plaintiffs who indirectly suffer emotional
distress because of a direct injury to another?
18Chapter IV Emotional Harm
Who can recover damages for emotional
distress? Plaintiffs who suffer a physical injury
as the result of someones negligence? Recovery
for the emotional harm that stems from the injury
allowed in all jurisdictions.
19Chapter 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
20Chapter IV Emotional 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.
21Chapter 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.
22Chapter 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.
23Chapter IV
Duty Economic Harm Two patterns Negligence
by professional, third party
harm Negligence resulting in physical
injury or property damage, economic harm
results
24Chapter IV Economic Loss
Nycal v. KPMG
Accountant
Duty to carefully perform audit
Duty?
Person who purchases stock in reliance on report
Gulf Corp
25Chapter IV Economic Loss
Four approaches 1) Privity 2) Near-privity (the
NY approach) 3) Restatement approach 4)
Foreseeability approach
26Chapter IV Economic Loss People Express
Physical injury
Property damage
Economic losses of evacuated businesses
Travelers who deal with Peoples
People delayed on highway
27Chapter IV Economic Loss People Express
Pro recovery 1) innocent victim unable to bear
loss 2) arbitrariness of physical injury rule 3)
deterrence 4) cost shifting
Against recovery 1) fraudulent claims 2) mass
litigation 3) limitless liability 4) liability
out of proportion to fault
28Chapter IV Economic Loss People Express
- Definition of particular foreseeability
- Defendant owes a duty of care to take reasonable
measures to avoid the risk of causing economic
damages to plaintiffs - comprising an identifiable class
- with respect to whom defendant knows or has
reason to know are likely to suffer economic
harm.
29Chapter IV Economic Loss People Express
The California approach JAire Corp v. Gregory,
24 Cal. 3d 799 (1979) Is there a special
relationship? 1) transaction intended to affect
the plaintiff 2) harm to plaintiff foreseeable 3)
certainty of injury 4) close causal connection 5)
moral blame 6) policy of preventing future harm
30Assignment
Thursday 341-349, 358 n.5 n.7 (Skip
Zuchowitz, p. 349) 359-367 Friday
368-374, 374-391