DUTY, FORESEEABILITY, AND THE
NEGLIGENT INFLICTION OF MENTAL
DISTRESS
"When legal doctrine captures the mind, the policies that should
determine the protections to be given a victim seemingly sink out
of sight."'
I.
INTRODUCTION
Under early common law if the act of a person gave rise to an
action at law, he would be liable for resulting damages regardless of
fault.2 A person acted at his peril.3 The limitation on liability, if any,
lay not with a concept of duty but with a medieval sort of proximate
cause. 4 "There is little trace of any notion of... an obligation to
any one individual, as essential to the tort. The defendant's obligation to behave properly apparently was owed to all the world."a
With the merging of the common law actions of trespass and trespass on the case and the consequent development of negligence, new
independent bases of liability sprang forth.0 The concept of duty has
taken form "as a matter of some specific relation between... plaintiff and.., defendant, without which there could be no liability."7
Articulating this specific relation has not been easy, as the tort of
negligent infliction of mental distress illustrates. The recognition of
the negligent infliction of mental distress as a separate basis of liability has produced disagreement over when a plaintiff may recover.
The "impact" rule, once the majority view, remains in only a few
jurisdictions.8 Some courts have attenuated the requirement of a
1. Green, Tort Law Public Law in Disguise, 38 a. L. REv. 1, 9 (1959).
2. See 3 W. HoLDswoRrrH, A HISTORY OF ENGLISH LAW 375-77 (5th ed. 1942); 8 W.
HoLDswoRTH 449 (2d ed. 1937); W. PRosSER, LAw OF ToRTS § 53, at 324 (4th ed.
1971).
3. 2 W. HOLDSWORTH, supra note 2 (4th ed. 1936), at 51-52; 3 W. HoLnsWoRMi,
supra note 2, at 375.
4. 8 W. HOLDSWORTH, supra note 2, at 449; W.
PROSSER, supra note
2, § 53, at
324.
W. PROSSER, supra note 2, § 53, at 324.
6. 1 T. STRET,FOUNDATIONS OF LEGAL LIABITY xxiii (1906).
7. W. PROSSER, supra note 2, § 53, at 325.
8. Under the impact rule the plaintiff may not recover for emotional distress unless he also suffered physical impact as a result of the defendant's act or omission.
See Harrison v. Canada Dry Corp., 245 A.2d 642 (D.C. 1968); Gilliam v. Stewart, 291
So. 2d 593 (Fla. 1974); Howard v. Bloodworth, 137 Ga. App. 478, 224 S.E.2d 122
(1976); Kaiserman v. Bright, 61 L App. 3d 67, 377 N.E.2d 261 (1978); Kroger Co. v.
5.
Beck, Ind. App. _..., 375 N.E.2d 640 (1978); Deutsch v. Shein, 597 S.W.2d 141
(Ky. 1980); Gambill v. White, 303 S.W.2d 41 (Mo. 1957).
Georgia has adopted a variation of the impact rule which allows recovery for
mental anguish caused by simple negligence only if the plaintiff suffers physical in-
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physical impact by demanding only that the plaintiff suffer physical
injury contemporaneously with the negligent act.9 Other courts
merely require that the plaintiff be within the "zone of danger" of
physical injury in order to recover. 10 Most courts now employ general negligence standards with major emphasis on "foreseeability" in
allowing recovery for negligent infliction of emotional distress except
in the bystander cases.""
jury or pecuniary loss. See Hall County Memorial Park, Inc. v. Baker, 146 Ga. App.
296, 243 S.E.2d 689 (1978); Kuhr Bros. v. Spahos, 89 Ga. App. 885, 81 S.E.2d 491
(1954). Recovery is allowed when the negligence amounts to malicious, wilful or wanton conduct. See, e.g., Hall County Memorial Park, Inc. v. Baker, 145 Ga. App. 296,
243 S.E.2d 689 (1978)(body of husband buried in wrong grave).
9. The contemporaneous physical injury rule is virtually indistinguishable from
the impact rule except in its not requiring that impact precede the mental anguish.
All that is required is accompanying physical injury regardless of whether it causes
the mental anguish or is caused by the mental anguish. See Williamson v. Bennett,
251 N.C. 498, 112 S.E.2d 48 (1960); Heid v. Red Malcuit, Inc., 41 Ohio St. 2d 210, 230
N.E.2d 674 (1967); Jines v. City of Norman, 351 P.2d 1048 (Okla. 1960); Melton v.
Allen, 282 Or. 731, 580 P.2d 1019 (1978); Sternhagen v. Kozel, 40 S.D. 396, 167 N.W.
398 (1918). The contemporaneous injury rule is subject to the same criticism as the
impact rule. See text accompanying notes 21-35 infra.
10. The zone of danger rule requires that the plaintiff be within the zone of danger of physical impact even though actual impact may not occur. Towns v. Anderson,
195 Colo. 517, 579 P.2d 1163 (1978); Robb v. Pennsylvania R.R., 58 Del. 454, 210 A.2d
709 (1965); Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861 (Tenn. 1978). See
also RESTATEMENT (SECOND) OF TORTS § 436 (1965). Towns may provide confusion in
that the factual situation resembles a bystander case; however, the Colorado Supreme
Court expressly declined to decide the case on the basis of peril or harm to a third
person. 579 P.2d at 1165. For a discussion of the inequities of the zone of danger rule
see text accompanying notes 61-62 infra.
11. See text accompanying notes 87-88 infra. See Weston v. National Mfr. &
Stores Corp., 253 Ala. 503, 45 So. 2d 459 (1950); Keck v. Jackson, 122 Ariz. 114, 593
P.2d 668 (1979); Leasman v. Beachcraft Aircraft Corp., 48 Cal. App. 3d 376, 121 Cal.
Rptr. 768 (1975); Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970); Clemm v. Atchison, T. & S.F. Ry.,
126 Kan. 181, 268 P. 103 (1928); Todd v. Aetna Cas. & Sur. Co., 219 So. 2d 538 (La.
Ct. App. 1969); Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (Me. 1970);
H & R Block, Inc. v. Testerman, 275 Md. 36, 338 A.2d 48 (1975); Daley v. LaCroix,
384 Mich. 4, 179 N.W.2d 390 (1970); Okrina v. Midwestern Corp., 282 Minn. 400, 165
N.W.2d 259 (1969); Cashin v. Northern Pac. Ry., 96 Mont. 92, 28 P.2d 862 (1934);
First Nat'l Bank v. Langley, 314 So. 2d 324 (Miss. 1975); Chiuchiolo v. New England
Wholesale Tailors, 84 N.H. 329, 150 A. 540 (1930); Caputzal v. The Lindsay Co., 48
N.J. 69, 222 A.2d 513 (1966); Simone v. Rhode Island Co., 28 R.I. 186, 66 A. 202
(1907); Padgett v. Colonial Wholesale Distrib. Co., 232 S.C. 593, 103 S.E.2d 265
(1958); Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973); Hunsley v. Giard, 87
Wash. 2d 424, 553 P.2d 1096 (1976); Monteleone v. Cooperative Transit Co., 128 W.
Va. 340, 36 S.E.2d 475 (1945). See generally RESTATEMENT (SECOND) OF ToRTs §
313(1) (1965).
New York now applies general negligence principles to determine liability in instances where the plaintiff is directly harmed. The impact rule was rejected in Batalla
v. State, 10 N.Y.2d 237, 176 N.E.2d 729, 219 N.Y.S.2d 34 (1961), in which a child
plaintiff was placed in a ski chair lift but not secured. As a result, the plaintiff became frightened and hysterical and was injured. Although the court could have ap-
1981]
MENTAL DISTRESS
The zone of danger test predominates in the so-called "bystander"
cases in which the plaintiff claims emotional harm caused by the
observance of peril or injury to a third party.12 The rapidly developing trend, however, is toward the use of a less restrictive "foreseeability" standard in deciding whether the tort will lieY3 Often foreseeability is the only factor considered in the determination of
liability. By emphasizing foreseeability to the exclusion of other factors which could aid in determining whether a duty exists, courts
have laid the basis for an arbitrary requirement much like the older
impact, contemporaneous physical injury, and zone of danger rules.
Although much has been written on various aspects of the foreseeability test, recent changes in the test in jurisdictions where it previously had been entrenched have prompted a renewed interest in the
subject.14 This Comment will trace the development of the law of
plied the zone of danger rule, it chose instead to base its decision on the "quality and
genuineness of proof, and rely to an extent on the contemporary sophistication of the
medical profession and the ability of the court and jury to weed out the dishonest
claims." Id. at 242, 176 N.E.2d at 731-32, 219 N.Y.S.2d at 38.
The flexibility implicit in Batalla was realized in Johnson v. State, 37 N.Y.2d 378,
334 N.E.2d 590, 372 N.Y.S.2d 638 (1975), where recovery was allowed for the mental
distress caused by notifying the plaintiff of her mother's death when the mother was
in fact alive. Although the plaintiff alleged physical manifestations of the psychic injuries, the court noted that physical injury is not always required; but a showing of
genuine and substantial emotional harm is essential. Id. at 383-84, 334 NYE.2d at 593,
372 N.Y.S.2d at 643. Although the court treated its decision as an exception to the
general rule, Johnson has subsequently been cited as an expansion of the general
rule. Vacarro v. Squibb Corp., 412 N.Y.S.2d 721, 97 Tisc. 2d 907 (Sup. Ct. 1978). See
text accompanying note 115 infra.
12. Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933); Tobin v. Gr-o man, 24
N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554 (1969); Whetham v. Bismarck Ho3p.,
197 N.W.2d 678 (N.D. 1972); Guilmette v. Alexander, 128 Vt. 116, 259 A.2d 12 (1969);
Grimsby v. Sampson, 85 Wash. 2d 52, 530 P.2d 291 (1975); Waube v. Warrington, 216
Wis. 603, 258 N.W. 497 (1935). See also REsTATEmr (SEcoND) oF ToRs § 313(2)
(1965).
13. In a 1970 non-bystander case, Wallace v. Coca-Cola Bottling Plants, Inc., 269
A.2d 117 (Me. 1970), the Maine Supreme Judicial Court discarded the impact rule in
favor of the foreseeability approach. Wallace allowed recovery for mental distress
caused by the plaintiff's finding an unpackaged prophylactic inside a bottle from
which she was drinking. The court also required that the injury be "substantial and
manifested by objective symptomatology." Id. at 121. For a discussion of the requirement of an accompanying physical injury see text accompanying notes 37-51 infra.
For a discussion of foreseeability see text accompanying notes 63-66 and 72-84 infra. See also Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968);
Dziokonski v. Babineau, - MAss. _, 380 N.E.2d 1295 (1978); Toms v. McConnell,
45 Mich. App. 647, 207 N.W.2d 140 (1973); Corso v. Merrill, - N.H. ._, 406 A.2d
300 (1979); Sinn v. Burd, - Pa.., 404 A.2d 642 (1979); Landreth v. Reed, 570
S.W.2d 486 (Tex. Civ. App. 1978). See also Friel v. Vineland Obstetrical & Gynecological Prof. Ass'n, 166 N.J. Super. 579, 400 A.2d 147 (1979). But see Burd v. Vercruyssen, 142 N.J. Super. 344, 361 A.2d 571 (1976); DeSanto v. Babino, 168 N.J.
Super. 582, 403 A.2d 959 (1979).
14. See Corso v. Merrill, - N.1. _, 406 A.2d 300 (1979), ouerruling Jelley v.
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negligently inflicted mental distress, analyze the foreseeability test
in light of its restrictive effect on other considerations of duty, and
propose greater judicial flexibility so that the courts might address
individual circumstances in a just and equitable manner.
II.
OVERVIEW OF NEGLIGENT INFLICTION OF MENTAL DISTRESS
A.
Development as a Separate Tort
Although recovery for mental distress has long been allowed as
parasitic damages to an independent tort, courts have been reluctant to recognize a separate tort of negligently inflicted mental distress.15 Courts were suspicious of plaintiffs whose injuries were difficult to verify, so they required physical impact along with the
alleged mental distress. In the original case establishing the impact
rule, Victorian Railways Commissioners v. Coultas,16 the Privy
Council in 1888 held that where plaintiffs were almost hit by a passing train due to the negligence of a train employee, recovery would
not be allowed without a contemporaneous physical impact. Although in England Victorian Railways was overruled thirteen years
later,1 7 it was quickly adopted in Massachusetts and New York in
Spade v. Lynn & Boston Railroad s and Mitchell v. Rochester Railway.' 9 These cases served as cornerstone decisions for other states
adopting the impact rule.2 0
LaFlamme, 108 N.H. 471, 238 A.2d 728 (1968); Sinn v. Burd,
-
Pa.
-,
404 A.2d
672 (1979), overruling Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). Both
Corso and Sinn overruled the application of the zone of danger test to bystander
cases. Change has been especially marked in Pennsylvania where only the impact rule
has been displaced. See Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), overruling Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958).
15. The term "parasitic" indicates that the particular element of damage "belongs
essentially to a transitory stage of legal evolution. A factor which is today recognized
as parasitic will ... tomorrow be recognized as an independent basis of liability. It is
merely a question of social, economic, and industrial needs as those needs are reflected in the organic law." 1 T. STREET, supra note 6, at 470.
16. [1888] 13 App. Cas. 222 (P.C.).
17. Dulieu v. White & Sons, [1901] 2 K.B. 669 (adopting zone of danger rule).
Dulieu was subsequently overruled in Hambrook v. Stokes Bros., [1925] 1 K.B. 141
(adopting the foreseeability test).
18. 168 Mass. 285, 47 N.E. 88 (1897). In Spade the conductor of a street car attempted to eject a noisy rider by frightening him. The Massachusetts court refused to
grant recovery to the passenger for fright and mental suffering without a showing of
physical impact as well.
19. 151 N.Y. 107, 45 N.E. 354 (1896). In Mitchell, a horse-drawn carriage stopped
so close to a pregnant woman that she stood between the heads of the horses. She
fainted and later miscarried. The New York court denied recovery for the mental
anguish and the miscarriage on the ground that there was no impact and that, since
there "can be no recovery.
.
for mere fright. .
.,
none can be had for injuries which
are the direct consequences of it." Id. at 110, 45 N.E. at 354.
20. St. Louis, I.M. & S.R. v. Bragg, 69 Ark. 402, 64 S.W. 226 (1901); Easton v.
United Trade School Contracting Co., 173 Cal. 199, 159 P. 597 (1916); Haas v. Metz,
1981]
MENTAL DISTRESS
Lack of precedent, " the difficulty of proof,22 fears of fraudulent
claims 23 and of a flood of litigation 2 4-coupled with the dangers of
proximate cause and potentially unlimited liability%-lay behind
the physical impact requirement. But many of the justifications for
the rule have lost their force, and it has been vigorously criticized
for generations. 2
As the practice of medicine has improved,
debilitating emotional harm may be confidently proven.27 The potential for fraudulent claims has been diminished by raising the
standard of proof to require clear and convincing evidence of mental
distress.2 8 A further criticism of the impact rule is that it no longer
78 fl1 App. 46 (1898); Kalen v. Terre Haute & LR, 18 Ind. App. 202, 47 N.E. 694
(1897); Mahoney v. Dankwart, 108 Iowa 321, 79 N.W. 134 (1899); Morse v. Chesapeake & 0. Ry., 117 Ky. 11, 77 S.W. 361 (1903); Herrick v. Evening Expres Pub. Co.,
120 Me. 138, 113 A. 16 (1921); Nelson v. Crawford, 122 Mich. 466, 81 N.W. 335
(1899); McCardle v. George B. Peck Dry Goods Co., 191 Mo. App. 263, 177 S.W. 1095
(1915); Ward v. West Jersey & S.R., 65 N.J.L. 383, 47 A. 561 (1900); Miller v. Baltimore & O.S.W.R., 78 Ohio 309, 85 N.E. 499 (1908); Huston v. Borough of Freemansburg, 212 Pa. 548, 61 A. 1022 (1905); Bowles v. May, 159 Va. 419, 166 SE. 550 (1932);
Ford v. Shliessman, 107 Wis. 479, 83 N.W. 761 (1900).
21. Easton v. United Trade School Contracting Co., 173 Cal. 199, 159 P. 597
(1916); Haas v. Metz, 78 IM.App. 46 (1898); Spade v. Lynn & B. Ry., 168 Mass. 285,
47 N.E. 88 (1897); Mitchell v. Rochester Ry., 151 N.Y. 107, 45 N.E. 354 (1896).
22. See Homans v. Boston Elevated Ry., 180 Mass. 456, 62 N.E. 737 (1902); Nelson v. Crawford, 122 Mich. 466, 81 N.W. 335 (1899); Ward v. West Jersey & S.R., 65
N.J.L. 383, 47 A. 561 (1900).
23. Charlie Stewart Oldsmobile Co. v. Smith, __ Ind. App. -, 357 N.E.2d 247
(1978); Morse v. Chesapeake & 0. Ry., 117 Ky. 11, 77 S.W. 361 (1903); Nelson v.
Crawford, 122 Mich. 466, 81 N.W. 335 (1899); Ward v. West Jersey & S.R., 65 N.JL.
383, 47 A. 561 (1900); Mitchell v. Rochester Ry., 151 N.Y. 107, 45 N.E. 354 (1896).
24. Kalen v. Terre Haute & IR., 18 Ind. App. 202, 47 N.E. 694 (1897); Spade v.
Lynn & B. Ry., 168 Mass. 285, 47 N.E. 88 (1897); Nelson v. Crawford, 122 Mich. 466,
81 N.W. 335 (1899); Ward v. West Jersey & S.R., 65 N.J.L 383, 47 A. 561 (1900).
25. Charlie Stewart Oldsmobile Co. v. Smith, Ind. App. , 357 N.E.2d 247
(1978); Ward v. West Jersey & S.R., 65 N.J.L. 383,47 A. 561 (1900); Mitchell v. Rochester Ry., 151 N.Y. 107, 45 N.E. 354 (1896); Miller v. Baltimore & O.S.WIR, 78 Ohio
309, 85 N.E. 499 (1908).
26. See generally Goodrich, Emotional Disturbance as Legal Damage, 20 MicH.
L. REv. 497 (1922); Magruder, Mental and Emotional Disturbance in the Law of
Torts, 49 H~Av. L. Rav. 1033 (1936); McNiece, Psychic Injury and Tort Liability in
New York, 24 ST. JoHN's L. REv. 1 (1949); Throckmorton, Damages for Fright,34
H
v.L. REv. 260 (1920). See also Wallace v. Coca-Cola Bottling Plants, Inc., 269
A.2d 117 (Me. 1970); Chiuchiolo v. New England Wholesale Tailors, 84 N.H. 329, 150
A. 540 (1930); Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970); Simone v.
Rhode Island, 28 R.IL 186, 66 A. 202 (1907).
27. "[I]n an age when psychiatry has shown the profound and disastrous effects of
mental anguish, even in the absence of apparent physical injury," a refusal to allow
recovery for mental anguish would be untenable. Comment, Refining the Traditional
Theories of Recovery for Consumer Mental Anguish, 1979 B.Y.U.L REv. 81, 8-87
(citing Brown v. Fifth Ave. Coach Lines, Inc., 16 Misc. 2d 692, 694, 185 N.Y.S.2d 923,
926 (1959)). See also Towns v. Anderson, 579 P.2d 1163 (Colo. 1978); Falzone v.
Busch, 45 N.J. 559, 564, 214 A.2d 12, 14 (1965).
28. See F. HARPER & F. JAmS, LAw Op Toms § 18.4, at 1037-38 (1956).
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distinguishes legitimate from illegitimate claims because it has
evolved to allow recovery for even the slightest impact.2 9 Neither the
danger of fraud"0 nor the lack of precedent for a particular cause of
action3 1 should preclude recovery where a substantial injury is
shown. This sentiment is echoed in Dean Prosser's response to the
argument that a flood of litigation would develop if the impact rule
were abandoned:
It is the business of the law to remedy wrongs that deserve it,
even at the expense of a "flood of litigation"; and it is a pitiful
confession of incompetence on the part of any court of justice to
deny relief 3 upon the ground that it will give the court too much
work to do. 2
In any event, no flood has occurred in jurisdictions that have abrogated the rule. 3
The most persuasive arguments for the impact rule concern the
danger of unlimited liability and the difficulty of establishing proximate cause.3 From the inception of the rule, courts have denied re-
covery on the grounds that a defendant's duty could not extend ad
infinitum and that his liability has to stop somewhere.3 5 The impact
rule, however, is an arbitrary answer to the question of where to
draw the line. If the defendant's negligence has caused an injury, the
question whether he owed some duty to the plaintiff must be addressed, and it should encompass more than mere consideration of
whether the plaintiff suffered physical impact or contemporaneous
physical injury. Logic and reason should respond to genuine claims
with more than this insubstantial rule.36
29. Christy Bros. Circus v. Turnage, 38 Ga. App. 581, 144 S.E. 680 (1928) (impact
found where horse excreted onto victim's lap); Kentucky Tractor & Terminal Co. v.
Roman Guardian, 232 Ky. 285, 23 S.W.2d 272 (1929) (trifling blow); Rebouche v.
Shreveport Rys., 52 So. 2d 510 (La. Ct. App. 1951) (slight jolt sufficient); Homans v.
Boston Elevated Ry., 180 Mass. 456, 62 N.E. 737 (1902) (slight blow); McCardle v.
George B. Peck Dry Goods Co., 191 Mo. App. 263, 177 S.W. 1095 (1915) (impact
found with "jolting, jarring, or shaking" of body as incident to rapid descent of elevator); Porter v. Delaware, L. & W.R., 73 N.J.L. 405, 63 A. 860 (1906) (settling of dust
of plaintiff sufficient impact). See also F. HARPER & F. JAMES, supra note 28, § 18.4,
at 1034; W. PROSSER, supra note 2, at 331.
30. See Chuichiolo v. New England Wholesale Tailors, 84 N.H. 329, 150 A. 540
(1930).
31. See Hill v. Kimball, 76 Tex. 210, 215, 13 S.W. 59, 60 (1890).
32. Prosser, IntentionalInfliction of Mental Suffering: A New Tort, 37 MIcH. L.
REv. 874, 877 (1939).
33. Falzone v. Busch, 45 N.J. 559, 567, 214 A.2d 12, 16 (1965); First Nat'l Bank v.
Langley, 314 So. 2d 324, 339 (Miss. 1975).
34. Because the inquiries into proximate cause and duty are nearly equivalent, the
important question is whether duty should be found. See text accompanying notes
92-94 infra.
35. See, e.g., Mitchell v. Rochester Ry., 151 N.Y. 107, 45 N.E. 354 (1896).
36. See F. HARPER & F. JAMES, supra note 28, § 18.4, at 1034.
1981]
MENTAL DISTRESS
The trend in non-bystander cases has been to discard the impact
rule in favor of a more liberal standard. Even if impact is not required, almost all jurisdictions demand a physical manifestation of
the emotional injury to allow recovery.3 7 The reason for this requirement is that "[t]he temporary emotion of fright, so far from serious
that it does no physical harm, is so evanescent a thing, so easily
counterfeited, and usually so trivial, that the courts have been quite
unwilling to protect the plaintiff against mere negligence."' Initially, most courts ruled that physical injury due solely to fright was
insufficient for relief. They reasoned that if one could not recover for
fright itself, then one should not be able to recover for the physical
effects of the fright.3 9 The general rule today allows recovery if the
injury occurs at the same time as the fright, regardless of whether
37. See, e.g., Keck v. Jackson, 593 P.2d 668 (Ariz. 1979); Chicago R.L & P.L Co. v.
Caple, 207 Ark. 52, 179 S.W.2d 151 (1944); Towns v. Anderson, 579 P.2d 1163 (Colo.
1978); Chesapeake & P. TeL Co. v. Clay, 194 F.2d 888 (D.C.Cir. 1952); Gilliam v.
Stewart, 291 So. 2d 593 (Fla. 1974); Kuhr Bros., Inc. v. Spahos, 89 Ga. App. 885, 81
S.E.2d 491 (1954); Summers v. Western Idaho Potato Processing Corp., 94 Idaho 1,
479 P.2d 292 (1970); Kaiserman v. Bright, 61 Il.App. 3d 67, 377 N.E.2d 261 (1978);
Kroger Co. v. Beck, 375 N.E_2d 640 (Ind.App. 1978); Deutsch v. Shein, 597 S.W.2d
141 (Ky. 1980); Meyers v. Busso, 381 So. 2d 843 (La. Ct. App. 1980) (requires
"psychic trauma in nature of or similar to a physical injury"); Wallace v. Coca-Cola
Bottling Plants, Inc., 269 A.2d 117 (Me. 1970); H & R Block Co. v. Testerman, 275
Md. 36, 338 A.2d 48 (1975); Daley v. LaCroix, 384 Mich. 4, 179 N.W.2d 390 (1970);
Gambill v. White, 303 S.W.2d 41 (Mo. 1957); Sears, Roebuck & Co. v. Young, 384 So.
2d 69 (Miss. 1980); Kelley v. Lowney Williams, Inc., 113 Mont. 385, 126 P.2d 486
(1942); Rasmussen v. Benson, 133 Neb. 449, 275 N.W. 674, afl'd on rehearing, 135
Neb. 232, 280 N.W. 890 (1937); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979);
Falzone v. Busch, 45 N.J. 559, 214 A.2d 12 (1965); Aragon v. Speelman, 83 N.M. 285,
491 P.2d 173 (1971); Batalla v. State, 10 N.Y.2d 237, 176 N.E.2d 729, 219 N.Y.S.2d 34
(1965); Williamson v. Bennett, 251 N.C. 498, 112 S.E.2d 48 (1960); Ikander v. Ford
Motor Co., 59 Ohio App.2d 35, 394 N.E.2d 1017 (1978); Cushing Coca-Cola Bottling
Co. v. Francis, 206 Okla. 553, 245 P.2d 84 (1952); Melton v. Allen, 282 Or. 731, 580
P.2d 1019 (1978); Simone v. Rhode Island Co., 28 IL 186, 66 A. 202 (1907); Padgett
v. Colonial Wholesale Dist. Co., 232 S.C. 598, 103 S.E.2d 265 (1958); Sternhagen v.
Kozel, 40 S.D. 396, 167 N.W. 398 (1918); Medlin v. Allied Inv. Co., 217 Tenn. 469, 398
S.W.2d 270 (1966); Covington v. Estate of Foster, 584 S.W.2d 726 (Tex. Civ. App.
1979); Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973); Savard v. Cody Chevrolet,
Inc., 126 Vt. 405, 234 A.2d 656 (1967); Hundsley v. Giard, 87 Wash. 2d 424, 553 P.2d
1096 (1976); Monteleone v. Cooperative Transit Co., 128 W.Va. 340, 36 S.E.2d 435
(1945); Ver Hagen v. Gibbons, 47 Wis. 2d 220, 177 N.W.2d 83 (1970). See also RE.
STATEMENT (SEcoND) OF ToS § 436A (1965). But see Rodrigues v. State, 52 Haw.
156, 172 P.2d 509 (1974). Cf. Wilson v. Redken Lab., Inc., 56 S.W.2d 633 (Ky. 1978)
(where plaintiff recovered for mental anguish resulting from the negligent mistreatment of her hair, despite her having incurred no physical pain. Although the mistreatment might fall within the impact rule, the fact that there was no physical manifestation of the mental anguish conflicts with the majority rule).
38. W. PROSsER, supra note 2, at 329. See Capelouto v. Kaiser Foundation Hasp.,
7 Cal. 3d 880, 500 P.2d 880, 103 Cal. Rptr. 856 (1972). See also note 37 supra.But see
Rodrigues v. State, 52 Haw. 156, 172 P.2d 509 (1970); Leong v. Takasaki, 55 Haw.
398, 520 P.2d 758 (1974).
39. See, e.g., Mitchell v. Rochester Ry., 151 N.Y. 107, 45 N.E. 354 (1896).
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the physical injury caused the fright or vice versa. 40 However, there
is no consensus about recovery in cases where the physical harm is
not contemporaneous with but follows directly from the plaintiff's
1
fright or shock.4
The rule requiring a physical manifestation of injury has two exceptions. The first is for cases concerning the negligent handling of
corpses and graves; the second is for those involving the negligent
forwarding of telegraph messages. 42 As Dean Prosser writes:
40. See generally RESTATEMENT (SECOND) OF TORTS § 436 (1965).
41. W. PROSSER, supra note 2, at 330. See note 9 supra and accompanying text.
42. See Allen v. Jones, 104 Cal. App. 3d 207, 163 Cal. Rptr. 445 (1980) (cremated
remains lost in transit); Hall County Memorial Park, Inc. v. Baker, 145 Ga. App. 296,
243 S.E.2d 689 (1978) (recovery allowed because body was placed in wrong place);
Tyler v. Kinser, 346 S.W.2d 306 (Ky. 1961) (negligent desecration of grave);
Blanchard v. Brawley, 75 So.2d 891 (La. Ct. App. 1954) (negligent mutilation of
corpse); Daniels v. Adkins Protections Serv., Inc., 247 So.2d 710 (Miss. 1971) (negligent embalming); Corso v. Crawford Dog & Cat Hosp., Inc., 97 Misc. 2d 530, 415
N.Y.S.2d 183 (N.Y. Civ. Ct. 1979) (recovery allowed for dog owner who had arranged
for elaborate funeral but found a dead cat within the casket); Brown v. Broome
County, 197 N.Y.S.2d 679 (App. Div. 1960) (unauthorized autopsy); Lanford v. West
Oakwood Cemetery Addition, Inc., 223 S.C. 350, 75 S.E.2d 865 (1953) (unauthorized
sale of grave). See also Stewart v. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351
(1886) (negligent transmission of telegraph message); Western Union Tel. Co. v.
Cleveland, 169 Ala. 131, 53 So. 80 (1910) (telegraph); Mentzer v. Western Union Tel.
Co., 93 Iowa 752, 62 N.W. 1 (1895) (telegraph); Cumberland Tel. & Tel. Co. v.
Quigley, 129 Ky. 788, 112 S.W. 897 (1908) (telegraph); Barnes v. Western Union Tel.
Co., 27 Nev. 438, 76 P. 931 (1903) (telegraph); Russ v. Western Union Tel. Co., 222
N.C. 504, 23 S.E.2d 681 (1943) (telegraph); Western Union Tel. Co. v. Potts, 120
Tenn. 37, 113 S.W. 789 (1907) (telegraph). Contra, Estate of Harper v. Orlando Funeral Home, 366 So.2d 126 (Fla. App. 1979) (recovery denied for mental anguish sustained at the sight of mother's casket falling apart during funeral); Seifert v. Western
Union Tel. Co., 129 Ga. 181, 58 S.E. 699 (1907) (telegraph); Western Union Tel. Co. v.
Ferguson, 157 Ind. 64, 16 N.E. 674 (1901) (telegraph); West v. Western Union Tel.
Co., 39 Kan. 93, 17 P. 807 (1888) (telegraph); Francis v. Western Union Tel. Co., 58
Minn. 252, 59 N.W. 1078 (1894) (telegraph); Western Union Tel. Co. v. Rogers, 68
Miss. 748, 9 So. 823 (1891); Connell v. Western Union Tel. Co., 116 Mo. 34, 22 S.W.
345 (1893); Morton v. Western Union Tel. Co., 53 Ohio St. 431, 41 N.E. 689 (1895);
Western Union Tel. Co. v. Foy, 32 Okla. 801, 124 P. 305 (1912); Connelly v. Western
Union Tel. Co., 100 Va. 51, 40 S.E. 618 (1902); Corcoran v. Postal Telegraph-Cable
Co., 80 Wash. 570, 142 P. 29 (1914).
Recovery has been allowed in the telegraph cases because of the importance normally attached to the timely receipt of messages, see text accompanying note 43 infra, especially where a death message is involved. The dangers of unlimited liability
have been averted by requiring that the mental anguish have been forseeable. See
generally Comment, Refining the Traditional Theories of Recovery for Consumer
Mental Anguish, 1979 B.Y.U.L. REv. 81, 87. To establish foreseeability the plaintiff
must usually prove that the defendant was aware of a blood relationship between the
communicating parties or of attending special circumstances which would warrant
timely delivery. Id. For a discussion of the overemphasis of foreseeability in determining liability, see text accompanying notes 97-112 infra.
The "special circumstance" exception may be expanding. See text accompanying
notes 44-46 infra. See also Dolf v. Outrigger Hotel, 54 Haw. 18, 501 P.2d 368 (1972)
(recovery allowed for emotional distress caused by failure to honor hotel reservation).
1981]
MENTAL DISTRESS
What all of these [special] cases appear to have in common is an
especial likelihood of genuine and serious mental distresses, arising
from the special circumstances, which serves as a guarantee that
the claim is not spurious. There may perhaps be other such cases.
Where the guarantee can be found, and the mental distress is undoubtedly real and serious, there is no essential reason to deny
43
recovery.
The potential for expansion of the "special circumstance" case
was acknowledged in New York in Johnson v. State." In Johnson
the plaintiff was erroneously notified of her mother's death by the
defendant hospital and she did not know of the error until she
viewed the body at the wake. Although the plaintiff manifested
physical symptoms of her mental anguish, the court in allowing recovery intimated that in such a case physical manifestations may
not be required:45 "[R]ecovery for emotional harm to one subjected
directly to the tortious act may not be disallowed so long as the evidence is sufficient to show causation and substantiality of the harm
It is unclear whether recovery in some of the special circumstances cases is based
on a contract or a tort theory. In tort, recovery is allowed for injuries which are the
natural and probable consequence of the defendant's negligence, irrespective of pecuniary considerations. Generally the defendant is charged in contract with only the
foreseeable pecuniaryconsequences of his breach. A. CORsm, COaRmN ON CoNMrcTs §
1076 (1964). Courts have been reluctant to recognize mental anguish absent an underlying basis in tort. See, e.g., McClain v. Faraone, 369 A.2d 1090 (DeL Super. 1977);
Farris v. United States Fidelity & Guar. Co., 284 Or. 453, 587 P.2d 1015 (1978). See
also RFSTATENMENT oF CoNRACTs 341 (1932). See generally Sanford v. Western Life
Ins. Co., 368 So.2d 260 (Ala. 1979). Because a tort claim may be required, the distinction between the two theories is often blurred. A. CORM, supra, at 1076.
Many cases involve carriers, telegraph companies, and innkeepers who are bound
by certain duties independent of contract, but who also have contractual obligations.
Usually the plaintiff is not a party to the defendant's contract, but he may have enforceable rights as a third party beneficiary. These rights cloud the distinction between tort and contract, making the distinction of little value for understanding the
law of damages for mental suffering. Id. § 1076, at 425-26. See also Cumberland Tel.
Co. v. Quigley, 129 Ky. 788, 112 S.W. 897 (1908); S. WLLISTON, CoNTnAcrs § 376 (rev.
ed. 1938); Note, Late Delivery of Telegraph Messages, 22 TEx L. Rav. 106 (1943);
Note, Telegraphs and Telephones-TelegraphCompany Liable for Mental Anguish
Resulting from Non-Delivery, 29 NEB.L. REv. 481 (1950).
The warranty provisions of the Uniform Commercial Code have combined contract
and tort damages by providing that "consequential damages resulting from a seller's
breach include... injury to person[s] or property proximately resulting from any
breach of warranty." U.C.C. § 2-715 (2)(B).
In determining tort liability, a court will look for contractual or quasi-contractual
relationships that create a duty. Consequently, the distinction between tort and contract becomes further blurred. The contractual or quasi-contractual relationship is
apparent in the "special circumstance" cases where the plaintiff is placed in an inferior position of reliance on the defendant so that the defendant should regard carefully the plaintiff's feelings.
43.
W. PRossaR, supra note 2, at 329.
44. 37 N.Y.2d 378, 334 N.E.2d 590, 372 N.Y.S.2d 638 (1975).
45. Id. at 381-82, 334 N.E.2d at 591-92, 372 N.Y.S.2d at 641-42.
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suffered, together with a 'guarantee of genuineness' .... "10
A requirement of physical injury or objective symptomatology is
subject to the same criticism as is the impact rule. The requirement
reflects the difficulty of proof of mental distress and the dangers of
fraud in cases of mental distress and uses physical injury to ensure
that the claim is genuine. But once again, to deny recovery merely
because artificial claims are likely and proof is difficult could close
the courts to those who have been seriously hurt. A better safeguard
of genuineness would be to raise the standard of proof and demand
clear and convincing proof.
In discarding the physical injury or manifestation of objective
symptomatology, a commendably maverick Hawaii Supreme Court
in Rodrigues v. State,' focused not on physical effects but on the
qualitative nature of the mental distress incurred. In Rodrigues the
court allowed recovery for mental anguish suffered when plaintiffs
saw their newly built house flooded because of the defendant's negligence. The court announced a policy allowing relief only for claims
for serious mental distress, stating that minor emotional shocks are
inevitable consequences of everyday living and should not be remediable.' The California Supreme Court has since followed the lead
of Rodrigues to allow recovery without a showing of physical injury
49
in Molien v. Kaiser Foundation Hospital.
B. Fear of Peril or Harm to Others
The question whether to allow recovery for mental distress caused
by the observance of peril or harm to a third person has been controversial. When confronted with this question in the so-called "by46.
47.
48.
Id. at 383-84, 334 N.E.2d at 593, 372 N.Y.S.2d at 643.
52 Haw. 156, 172 P.2d 509 (1970).
Id. at 172-73, 172 P.2d at 520. Rodrigues prompts the question, "What is seri-
ous emotional harm?" According to the Hawaii court, serious mental distress occurs
when "a reasonable man normally constituted, would be unable to adequately cope
with the mental distress engendered by the circumstances of the case." Id. But when
is a normally constituted reasonable man unable to cope? The Hawaii standard is
difficult to apply because it leaves undefined the components of serious emotional
harm. The ultimate definition should not be so broad as to include temporary distress
like upset, grief, humiliation, and anger nor so narrow as to include only permanent
emotional harm. See Comment, Mental Distress-The Impact Rule, 42 U. MO. KAN
CITY L. REV. 234, 241 (1973); Comment, Negligence and the Infliction of Emotional
Harm: A Reappraisalof the Nervous Shock Cases, 35 U. CHI. L. REv. 512, 517 (1968)
[hereinafter cited as Reappraisal].Remediable emotional harm should include shock,
continuing nervousness, sleeplessness, nausea, neuroses, resulting psychosomatic disabilities, and other more serious illnesses. Reappraisal, supra, at 517. The essential
criterion could be whether the harm requires medical attention. Id. For a helpful
discussion of the various types of mental distress usually identified as remediable
effects of negligent conduct, see Comment, Negligently Inflicted Mental Distress:
The Case of an Independent Tort, 59 GEO. L. REV. 1237, 1248-53 (1971).
49. - Cal. 3d -, 616 P.2d 813, 167 Cal. Rptr. 831 (1980) (husband allowed to
recover for negligent diagnosis of syphilis in wife).
1981]
MENTAL DISTRESS
stander" case, the impact states" and even some states which do not
follow the impact rule have denied recovery.5 1 The majority of jurisdictions have adopted the zone of danger test,"' but the developing
trend is toward a specific foreseeability standard. 8 Under each rule
the concerns are the same: difficulty of proof, genuineness of the injury, and limitations on unlimited liability. Other difficulties such as
the immeasurability of mental damages, uncertainty of causation,
lack of precedent, and fear of a flood of litigation "have been demolished several times and it is threshing old straw to deal with
them."M4
Much of the inequity of the impact rule has been alleviated by the
zone of danger rule. Under the impact rule the slightest touch gave
rise to a cause of action whereas a plaintiff who had not been
touched was denied access to the courts although his injury was just
as severe. 55 By contrast, the zone of danger test provides recovery
where the plaintiff was within the zone of risk of injury. Courts applying this test clearly believe that it is likely that a bystander will
fear for his safety when within the zone of risk."" Although the zone
of danger test has allowed recovery where the impact rule would
not,57 its admittedly arbitrary limits" have likewise resulted in a de50. W. PROSSER, supra note 2, at 333. See note 7 supra.
51. See, e.g., Slovensky v. Birmingham News Co., 338 So. 2d 474 (Ala. Ct. App.
1978). See notes 7 & 8 supra. See generally W. PRossER, supra note 2, at 333.
Although Connecticut has abandoned the impact rule, the law remains unsettled
whether to allow recover; for emotional harm resulting from the observance of peril
or injury to another. The Connecticut Supreme Court in Strazza v. McKittrick, 146
Conn. 714, 156 A.2d 149 (1959), stated in dicta that recovery would be denied in such
cases. However, the Strazza dicta appear to have been weakened by D'Amicol v. Alvarez Shipping Co., 31 Conn. Supp. 225, 372 A.2d 989 (1976) in which a trial court
adopted the Dillon criteria. However, D'Amicol was expressly rejected by a different
trial court in McGovern v. Piccolo, 33 Conn. Supp. 225, 372 A.2d 989 (1976). The
McGovern court chose instead to reaffirm Strazza.
52. See note 8 supra.
53. See note 13 supra.
54. W. PROSSER, supra note 2, at 327.
55. See note 29 supra.
56. See generally Comment, Negligent Infliction of Emotional Distress:Liability
to the Bystander-Recent Developments, 30 MERcER L. Rsv. 735, 737 (1979).
57. See, e.g., Bowman v. Williams, 164 Md. 397, 165 A. 182 (1953) (truck negligently driven into plaintiff's house); Savard v. Cody Chevrolet, Inc., 126 Vt. 405, 234
A.2d 656 (1967) (same).
58. Jelley v. LaFlamme, 108 N.H. 471, 473, 238 A.2d 728, 730 (1968). See also
Tobin v. Grossman, 24 N.Y.2d 609, 618, 249 N.E.2d 419, 424, 301 N.Y.S.2d 554, 561
(1969). Compare Vacarro v. Squibb Corp., 412 N.Y.S.2d 721, 97 Misc. 2d 907 (N.Y.
Sup. Ct. 1978) with Howard v. Lecher, 42 N.Y.2d 109, 366 N.E.2d 64, 397 N.Y.S.2d
363 (1977), reflecting the arbitrariness of New York's bystander cases. New York follows general negligence principles where a direct duty is owed to the plaintiff, see
note 10 supra, but uses the zone of danger rule in bystander cases to restrict recovery.
In Vacarro, plaintiff won damages for mental injuries when the negligent manufacture and administration of a drug resulted in her giving birth to a deformed child.
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nial of recovery for deserving plaintiffs. 59
The unfairness of the zone of danger rule led the California Supreme Court to reject it in 1969 in Dillon v. Legg.60 In Dillon a child
was run down and killed by an auto while the child's mother and
sister watched. The sister was within the zone of danger; the mother
was not. The court adopted a foreseeability approach in allowing recovery for the mother, stating that there was "no doubt that a
mother who sees her child killed will suffer physical injury from
shock"" and that it is the responsibility of the judiciary to award
damages to those with meritorious claims.6 2 Although the court said
the determination of foreseeability depends on the facts of each
case, it established three relevant factors: first, whether the plaintiff
was located near the scene of the accident; second, whether the
physical manifestations of shock resulted from the plaintiff's direct
observation of the accident or from learning about it later; and
Because a direct duty was owed the plaintiff mother in Vacarro, the restrictive zone
of danger approach of Tobin was not applied. However, in Howard the court of appeals refused recovery where the defendant doctor failed to inform a pregnant woman
of the risk of her baby's incurring the fatal Tay-Sachs disease. The court based its
denial on the ground that no direct duty was owed the plaintiff parent; the duty ran
only to the child. With no direct duty owed to the mother, the zone of danger rule
and Tobin applied.
A strong dissent by Judge Cooke in Howard argued that a direct duty in fact was
owed by the defendant physician to the plaintiff mother:
To infer that a mother is a bystander at the birth of her infant manifests
a basic misunderstanding of the duty owed a patient by a physician. In
such a circumstance
. . .
there are two within the zone of danger, and the
doctor owes a duty to each. That the infant may have suffered physical
injury, while the mother solely psychic, is not to say that each individually
could not seek redress against the physician for the particular type of damage he caused.
42 N.Y.2d at 116-17, 366 N.E.2d at 68-69, 397 N.Y.S.2d at 368.
The similar facts and inconsistent results in Howard and Vacarro manifest the distinction between bystander cases and direct duty cases. The possibility of unlimited
liability may be a valid concern but does not warrant distinguishing between cases
such as Howard and Vacarro.
59. "If a close relative may recover for mutilation of a corpse, why must recovery
be denied to a mother who witnesses her child killed before her very eyes." Lambert,
Tort Liability for Psychic Injuries, 41 B.U.L. REV. 584, 608 (1961). See, e.g.,
Resavage v. Davies, 199 Md. 479, 86 A.2d 879 (1952) (mother watched child run over
but recovery denied because out of zone of danger); Whetham v. Bismarck Hosp., 197
N.W.2d 678 (N.D. 1972) (mother watched newborn baby fatally dropped to floor, no
recovery); Shurk v. Christenson, 80 Wash. 2d 652, 497 P.2d 937 (1972) (defendants
knew their son was a child molester but allowed him to babysit for plaintiffs' daughter and failed to inform the plaintiffs; daughter was subsequently molested but recovery denied because plaintiffs not within zone of danger); Waube v. Warrington, 216
Wis. 603, 258 N.W. 497 (1935) (mother watched child run down by car, no recovery).
60. 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968).
61. Id. at 736, 441 P.2d at 917, 69 Cal. Rptr. at 77.
62. Id. at 737, 441 P.2d at 918, 69 Cal. Rptr. at 80.
1981]
MENTAL DISTRESS
third, whether the plaintiff and the victim were closely related.0
Some courts reacted to Dillon by expressly rejecting the foreseeability approach.6 In Tobin v. Grossman,e5 the New York court
chose to retain the zone of danger rule, stating:
[F]oreseeability, once recognized, is not so easily limited. Relatives,
other than the mother, such as fathers or grandparents, or even
other caretakers, equally sensitive and as easily harmed, may be
just as foreseeably affected. Hence foreseeability would in short order extend logically to caretakers other than the mother, and ultimately to affected bystanders."
The Tobin court implicitly recognized that there is no rational and
practical boundary for liability under any rule but that a line must
be drawn somewhere.67 In stating that a foreseeability approach
opens a road to unlimited liability, the Tobin court predicted that
the Dillon limitations would be valid only until a case arose where
the mother was close by but did not actually see the accident."a
The prediction was borne out that same year in California in Ar9 There
chibald v. Braverman."
a mother was allowed to recover although she had arrived on the scene of the accident moments after
an explosion injured her son. The court said that the shock sustained by the mother was sufficiently "contemporaneous" with the
explosion to satisfy the "observance" factor of Dillon.70 In California, however, Archibald has served as the stopping point for allowance of recovery.71
With the exception of Hawaii, 2 Massachusetts"3 and Rhode Is63. Id. at 740-41, 441 P.2d at 920, 69 Cal. Rptr. at 80.
64. McGovern v. Piccolo, 33 Conn. Supp. 225, 373 A.2d 989 (1976); Tobin v.
Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554 (1969); Whetham v. Bismarck Hosp., 197 N.W.2d 678 (N.D. 1972); Guilmette v. Alexander, 128 Vt. 116, 259
A.2d 12 (1969); Grimsby v. Samson, 85 Wash. 2d 52, 530 P.2d 291 (1975).
65. 24 N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554 (1969).
66. Id. at 615, 249 N.E.2d at 422, 301 N.Y.S.2d at 558.
67. Id. at 618, 249 N.E.2d at 424, 301 N.Y.S.2d at 561.
68. Id. at 560, 249 N.E.2d at 423, 301 N.Y.S.2d at 617.
69. 275 Cal. App. 2d 253, 79 Cal. Rptr. 723 (1969).
70. Id. at 256, 79 Cal. Rptr. at 725.
71. See, e.g., Parsons v. Superior Court, 81 Cal. App. 3d 22, 145 Cal. Rptr. 495
(1978) (where plaintiff saw dust settling in accident where her children were fatally
injured, no recovery because of lack of sensory perception of the accident); Powers v.
Sissoev, 39 Cal. App. 3d 865, 114 Cal. Rptr. 868 (1974) (thirty or sixty-minute delay
between accident and sight of injured child at the scene, no recovery); Jansen v. Children's Hosp. Medical Center, 31 Cal. App. 3d 22, 106 Cal. Rptr. 883 (1973) (where
mother watched slow gradual decline and death of child, no recovery because mother
did not see accident itself).
72. See Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974) (child watched stepgrandmother run over and killed but allegedly no physical injury, recovery allowed).
But cf. Kelley v. Kokua Sales & Supply Ltd., 56 Haw. 204, 532 P.2d 673 (1974) (no
recovery where not reasonably near the accident).
73. See Dziokonski v. Babineau, - Mass. _, 380 N.E.2d 1295 (1978).
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land,74 those courts adopting the foreseeability approach have restricted recovery according to the Dillon criteria.7 5 Hawaii has favorably recognized Dillon with respect to bystander recovery but has
eliminated the physical injury requirement and focused instead on
the substantial nature of the injury incurred.7 8 Apparently adopting
a more liberal stance than the Dillon court when faced with a similar case, the Massachusetts court in Dziokonski v. Babineau" stated
that there must be "substantial injury and proof that the injury was
caused by the defendant's negligence, 7 8 and that "the determination whether there should be liability. . depends on a number of
factors, such as where, when, and how the injury to the third person
entered into the consciousness of the claimant, and what degree
there was of familial or other relationship between the claimant and
the third person. ' 79 In not adopting the Dillon criteria verbatim, the
Dziokonski court said that "every effort must be made to avoid arbitrary lines which 'unnecessarily produce incongruous and indefensible results.' "80 The court stated that the factors were essential to
the determination of liability81 but declined to discuss them in detail. This suggests that the court preferred that the standards develop on a case-by-case basis.
Although the Dillon court appeared to be flexible by permitting
liability to be determined on a case-by-case basis, 82 its guidelines
have since evolved into requirements which, if not met, spell doom
for the complainant. Instead of being merely tools to help the court
determine whether a duty exists, the Dillon criteria have become
obstructions to plaintiffs who may well have incurred substantial
74. D'Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975).
75. See Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979); Sinn v. Burd, 486 Pa.
146, 404 A.2d 672 (1979); see also D'Amicol v. Alvarez Shipping Co., 31 Conn. Supp.
164, 326 A.2d 129 (1973); Toms v. McConnell, 45 Mich. App. 647, 207 N.W.2d 140
(1973); Gustafson v. Faris, 67 Mich. App. 363, 241 N.W.2d 208 (1976) (recovery denied because of lack of contemporaneous observance); Landreth v. Reed, 570 S.W.2d
486 (Tex. Ct. App. 1978). Texas may have adopted the foreseeability approach as
early as 1890 but the case law before Landreth is confused. See, e.g., Hill v. Kimball,
76 Tex. 210, 13 S.W. 59 (1890) (foreseeability); Gulf, C. & S. F. Ry. v. Hayter, 93 Tex.
239, 54 S.W. 944 (1900) (foreseeability); Houston Elec. Co. v. Dorsett, 145 Tex. 95,
194 S.W.2d 546 (1946) (zone of danger); Dave Snelling Lincoln-Mercury v. Simon,
508 S.W.2d 923 (Tex. Ct. App. 1974) (recovery allowed under both zone of danger
and foreseeability). See generally Note, BystanderRecovery is Determined by a Pure
Negligence Standard: Landreth v.Reed, 10 TEx. TECH. L. REV. 1167 (1979).
76. See Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974). Cf. Rodrigues v.
State, 52 Haw. 156, 172 P.2d 509 (1970) (plaintiffs saw newly built house flooded,
recovery allowed despite lack of allegation of physical injury).
77.
78.
79.
80.
81.
82.
-
Mass.
-,
380 N.E.2d 1295 (1978).
Id. at -, 380 N.E.2d at 1302.
Id.
Id.
Id.
68 Cal. 2d at 740, 441 P.2d at 920, 69 Cal. Rptr. at 80.
MENTAL DISTRESS
1981]
and real injury.83 Once again, as with previous attempts to set forth
tests and lasting standards, what originally were intended as guides
in a flexible system have been fixed as rigid requirements that deny
recovery.
I.
THE INEQuITY OF FoRESE ABmrry As DUTY
A.
Overview
To determine -liability for the negligent infliction
tress and in tort law generally, the court must look
tence of a duty owed the plaintiff by the defendant;
that duty, and 3) injury to the plaintiff proximately
the defendant's negligence."
of mental disto 1) the exis2) violation of
resulting from
The question of liability for negligence cannot arise at all until it
is established that the man who has been negligent owed some
duty to the person who seeks to make him liable for his negligence. . . . A man is entitled to be as negligent as he pleases towards the whole world if he owed no duty to them."
Inquiry into duty, breach of the duty and proximate cause, however, can become confused because each element often involves foreseeability. According to Judge Cardozo, the determination of duty
depends on the risk reasonably to be perceived."" Negligence concerns whether a reasonable man in the same circumstances would
have foreseen the injury which occurred. 87 Proximate cause is also
often defined in terms of foreseeability.88 However, to define duty
83. In Molien v. Kaiser Foundation Hospitals, - Cal. 3d .. 616 P.2d 813, 167
Cal. Rptr. 831 (1980), the California court reiterated its stated position in Dillon
"that an obligation hinging on foreseeability 'must necessarily be adjudicated only
upon a case-by-case basis ... [N]o immutable rule can establish the extent of that
obligation for every circumstance in the future."' Id. at ... , 616 P.2d at 816, 167 Cal.
Rptr. at 834 (citing Dillon v. Legg, 68 Cal. 2d at 740, 441 P.2d at 920, 69 Cal. Rptr. at
50).
In Molien recovery was allowed where the plaintiff's wife was mistakenly diagnosed
as having syphilis. Plaintiff, after being informed of his wife's condition, underwent
tests to determine whether he was affected. The incident led to the couple's divorce.
While the California court advised that a general foreseeability test would apply, it
was careful to distinguish Dillon. Dillon was a pure bystander case while Molien involved a direct tort between the hospital and plaintiff/husband. Id. Therefore, though
general foreseeability standards apply in direct injury cases, the restrictions of Dillon
may still prevail in the bystander area.
84. "When we find duty, breach and damage, everything has been said." Prosser,
PalsgrafRevisited, 52 MICH. L. Rav. 1, 15 (1953). See also Boyle v. City of Phoenix,
115 Ariz. 106, 563 P.2d 905 (1977).
85. Le Lievre v. Gould [1893] 1 Q.B. 491, 497.
86. Palsgraf v. Long Island R., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928).
87. See generally Green, Foreseeability in Negligence Law, 61 COLUM. L Ray.
1401 (1961); Green, The Duty Problem in Negligence Cases, 28 COLUM. L Rav. 1014
(1928).
88. See F. HARPER & F. JAhms, supra note 28, at § 20.5.
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and proximate cause only in terms of foreseeability may unduly simplify these concepts thus limiting their usefulness in the administration of "justice."
B. Proximate Cause As Duty
The limitation on liability posed by requiring proof of proximate
or legal cause is twofold: first, the plaintiff must show cause in fact;
second, he must demonstrate the invasion of a legally protected
right.89 While the former is a question of fact that can be answered
in light of everyday experience, the second is a matter of law and
involves broad questions of policy. This second component, the invasion of a legally protected right or "legal cause," is conclusory and
embodies a public policy determination which is actually a further
definition of duty.90 Often judicial references to proximate cause
only obscure the inquiry because the only real issue is whether the
defendant owed a duty to the injured plaintiff.
[The confusion] appears ... in cases, such as those involving
mental disturbance, where the court is in reality saying that the
particular interest invaded is not entitled to legal redress. In all
such cases the causal connection between the act and the harm is
usually clear and direct, and the attempt to subdivide the indivisible by ways of "proximate" only offers obstacles to the determination of the real issue.
The ordinary usage has been to confine the word "duty" to questions of the existence of some relation between the defendant and
the plaintiff which give rise to the obligation of conduct in the first
instance, and to deal with the connection between that obligation,
once it has arisen, and the consequences which have followed in the
89. See W. PROSSER, supra note 2, at 236. See also Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 GEo. L. REv. 1237,
1254 (1971).
90. Dean Prosser writes:
Once it is established that the defendant's conduct has in fact been one
of the causes of the plaintiff's injury, there remains the question whether
the defendant should be legally responsible for what he has caused. Unlike
the fact of causation, with which it is often hopelessly confused, this is essentially a problem of law ....
Quite often this has been stated, and properly so, as an issue of whether the defendant is under any duty to the plain.
tiff, or whether his duty includes protection against such consequences.
This is not a question of causation, or even a question of fact, but quite far
removed from both; and the attempt to deal with it in such terms has led
and can only lead to utter confusion.
The term "proximate cause" is applied ...
to those more or less unde-
fined considerations which limit liability even where the fact of causation is
clearly established.
W. PROSSER, supra note 2, at 244. See also F. HARPER & F. JAMES, supra note 28, at §
20.4; Bingham, Some Suggestions Concerning "Legal Cause" at Common Law, 9
COLUM. L. REV. 136 (1909); Comment, Negligently Inflicted Mental Distress: The
Case for an Independent Tort, 59 GEo. L. REv. 1237, 1254 (1971).
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MENTAL DISTRESS
language of "proximate cause." The usage is... well enough, so
long as it is not allowed to obscure the fact that identical questions
are often involved. 1
C. Duty, Negligence and Foreseeability
If legal cause in mental distress and tort cases in general is often
the same as duty, what constitutes duty? The term has been defined
in a variety of ways, few of them enlightening. For example: "A duty
. ..may be defined as an obligation, to which the law will give rec-
ognition and effect, to conform to a particular standard of conduct
toward another. 92 According to Prosser:
Its artificial character is readily apparent
... The
statement
that there is or is not a duty begs the essential question-whether
the plaintiff's interests are entitled to legal protection against the
defendant's conduct .
.
. [D]uty is not sacrosanct in itself, but
only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled
to protection.... No better statement can be made, that the
courts will find a duty where, in general, reasonable men would rec-
ognize it and agree that it exists. 3
Thus, in effect, "[t]here is a duty if the court says there is a duty.""
If speaking in terms of duty begs the question, how is one to determine duty? What is the "sum total of considerations" which constitutes duty? It is at this point of inquiry that foreseeability comes
into play. According to Cardozo, "[t]he risk reasonably to be perceived defines the duty to be obeyed. '" 5 Under this widely adopted
view, duty is reduced to a single-pronged test of foreseeability."
Even if it is accepted that duty and foreseeability are inextricably
boundr the question remains whether foreseeability is or should be
the only component of duty. "Notions about what should be foreseen... are very much interwoven with our feelings about fair and
just limits to legal responsibility, though it is not clear they will always coincide." '98 If duty is measured completely in terms of foreseeability and if negligence, the breach of that duty, also is determined
solely by foreseeability, what is the point of distinguishing between
the two? In effect, the courts "consider twice over what a reasonable
91. W. PROSSER, supra note 2, at 245.
92. Id. at 324.
93. Id. at 324-25.
94. Prosser, PalsgrafRevisited, 52 MICH. L. lav. 1, 15 (1953).
95. Palsgraf v. Long Island R.R., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928).
96. See RESTATEMENT (SEcoND) OF ToRs § 289 (1965); F. POLLOCK, Toms 24
(14th ed. 1939). See also 8 W. HOLDSWORTH, A HImToRY OF ENGLISH LAw 463 (2d ed.
1937).
97. See Corso v. Merrill, 119 N.H. 647, 650, 406 A.2d 300, 303 (1979).
98. F. HARPE & F. JA s, supra note 28, § 20.5, at 1135.
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man would do." 99'
There is, however, an important procedural difference between
the two concepts. In ascertaining whether a plaintiff's case will be
submitted to the jury, the judge must first determine the existence
of duty. Actual negligence, or breach of the duty, remains a question
for the jury to determine. Although the judge and jury may consider
some of the same factors, their inquiries are fundamentally different. As Professor Green has noted:
The duty issue, being one of law, is broad in its implications; the
negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge's imposing or not imposing a
duty in the particular case.... 100
Thus duty is a more general concept and involves a wider range of
policy considerations than does negligence, which addresses the particular circumstances of a case with special focus on foreseeability. 10"
Given this difference, "it would be strange . . . if the law should
provide the judge with the same formula for use in determining the
existence
of duty as it gives to the determination of the violation of
2
0
duty."1
It could be argued that although foreseeability is still the primary
consideration in duty and negligence, the determination of duty requires a broader foreseeability test than does the negligence inquiry.
The duty foreseeability test could be expressed as, "should the defendant have foreseen the danger of injury?" rather than the more
restrictive negligence question, "would a reasonable man have foreseen the danger of injury in the particular situation?1 0
99.
3
However,
Winfield, Duty in Tortious Negligence, 34 COLUM. L. REv. 41, 63 (1939).
100. Green, Foreseeability in Negligence Law, 61 COLUM. L. REv. 1401, 1418
(1961).
101. Id. at 1417.
102. Green, The Duty Problem in Negligence Cases, 28 COLuM. L. REv. 1014,
1029 (1928) (emphasis in original).
103. The foreseeability of injury standard applies only to the general risk of harm,
not the specific injury which in fact occurred. One need not exercise a degree of care
"foreseeing" a hypersensitive person unless the defendant has personal knowledge of
the sensitivity. See Aldridge v. Johnson, 318 So. 2d 870, 873 (Miss. 1975); Caputzal v.
The Lindsay Co., 48 N.J. 69, 222 A.2d 513 (1966). See also W. PnossER, supra note 2,
at 332-33. But see Otten v. Snowden, 550 S.W.2d 758 (Tex. Ct. App. 1977). However,
once foreseeability is established, the "thin skull" doctrine is applied and defendant
takes the victim as he finds him.
If a man is negligently run over or otherwise negligently injured in his
body, it is no answer to the sufferer's claim for damage that he would have
suffered less injury, or no injury at all, if he had not had an unusually thin
skull or weak heart.
Dulieu v. White & Sons [1901] 2 K.B. 669, 679. See generally, Reappraisal,supra
note 51, at 518; Comment, Mental Distress-The Impact Rule, 42 U. Mo. KAN. CITY
L. REv. 234, 241 (1973). For an excellent discussion of the inapplicability of the foro-
1981]
MENTAL DISTRESS
the expanded foreseeability solution amounts to the proverbial "dog
chasing its own tail."'1° To decide whether the defendant should
have foreseen, one must determine whether the defendant had a
duty, and the determination of duty depends on foreseeability. If
circularity is to be avoided, other factors besides foreseeability must
be considered:10 5
There is no reason to apply the restrictive foreseeability test to
all problems just because it is applied to some. There are strong
reasons, both within the framework of fault and to secure more effective compensation, for holding a wrongdoer liable for all injuries
he causes innocent men, and rejecting the foreseeability limitation
altogether. . . The choice is between emphasizing on the one
hand, the limited and inconsequential nature of the fault, and on
the other the very wide and serious nature of the damage that calls
for compensation.2°
The Rhode Island Supreme Court in D'Ambra v. United States' 07
recognized the limitations of a strict foreseeability approach to determining liability in cases of negligent infliction of mental distress.
In D'Ambra, the plaintiff saw a mail truck run over and kill her
child. In deciding that the mother could maintain an action, the
court stated:
[A]ny strong reliance on... [foreseeability] as a device to distinguish close factual patterns would seem to be misplaced. Moreover,
while duty may be a composite of many factors, foreseeability is
responsive only to the moral aspects of the issue; it tracks the
moral postulate that one must be in a position to be aware of what
one is doing before one should be held responsible for it. This is
seeability test to the thin skull doctrine, see Linden, Down With Foreseeability!Of
Thin Skulls and Rescuers, 47 CAN. BAR REv. 545 (1969).
104. Prosser, PalsgrafRevisited, 52 MIcH. L. Rav. 1, 16 (1953).
105. The circular reasoning is further complicated when proximate cause is
brought into the picture. One may assert that duty is determined by foreseeability;
foreseeability in turn is determined by proximate cause; but, for practical purposes,
proximate cause is the same as duty. See notes 92-94 supra and accompanying text.
'The rule that you are to love your neighbor, becomes in law, you must
not injure your neighbor;, and the lawyer's question, Who is my neighbor?
receives a restricted reply. You must take reasonable care to avoid acts and
omissions which you can reasonably foresee would be likely to injure your
neighbor. Who, then, in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'
Apply this to the recovery of a husband, a thousand miles away, for loss
of the services of his wife, injured in an automobile accident through the
negligence of the defendant, and we are lost indeed.
Prosser, PalsgrafRevisited, 52 MIcH. L. Rav. 1, 13 (1953) (quoting Donoghue v. Stevenson [1932] A.C. 562, 580 (opinion of Lord Atkin).
106. F. HARPER & F. JmAs, supra note 28, § 20.5, at 114041.
107. 114 R.L 643, 338 A.2d 524 (1975).
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[Vol. 33:303
not to say that foreseeability fails as a functional concept in tort
law, but only that it should not be pushed beyond its inherent limitations as a conclusion to the question of whether there exists sufficient moral culpability for legal liability to be imposed.
If foreseeability fails as an adequate template for existence of a
duty, recourse must be made to the basic issues of policy underlying the core problem of whether the plaintiff's interests are entitled
to legal protection against the defendant's conduct.'0 8
The court added that the criteria of Dillon may in some instances be
insufficient to determine liability, as "other factors . . . may be of
major importance ...
""'
IV.
CONCLUSION
The "sum total of considerations" which constitutes duty involves
more than foreseeability. The determination of duty depends both
on circumstances and policy considerations. As a result, the law of
negligent infliction of mental distress should develop on a case-bycase basis through a cautious balancing of the danger of unlimited
liability against the need for compensation of substantial injury.
Factors to consider in determining duty include the existence of a
contract or quasi-contract relationship, convenience of administration of claims, distribution of loss, the utility of defendant's conduct, the cost to the defendant of doing business, deterrence of future tortious conduct, culpability, and foreseeability. 110 "The fixing
of obligation, intimately tied into the facts, depends on each
111
case."
The "special circumstance" cases reflect this flexible approach and
were exceptional merely because the policy considerations involved
outweighed the arbitrary and inflexible rules of the time.112 The tendency of the courts today to adopt a strict foreseeability approach to
the negligent infliction of mental distress presents a danger that
other important considerations will be ignored. It is a fear of this
danger which leads one to view hesitantly the Maine Supreme Judicial Court's adoption of a foreseeability approach in Wallace v.
108. Id. at 650-51, 338 A.2d at 528.
109. Id. at 656, 338 A.2d at 531. In criticizing the holding of the federal district
court in D'Ambra v. United States, 354 F. Supp. 810 (D.R.I. 1973), which required
not only that the Dillon criteria be met but also that the presence of the plaintiff be
foreseeable, the court stated that "the scope of liability is or should be determined by
more factors than those relevant only to a defendant's culpability." 114 R.I. at 656-57
n.7, 338 A.2d at 531 n.7.
110. See W. PROSSER, supra note 2, at 326-27; Note, Recovery for Negligent Infliction of Emotional Distress: Changing the Impact Rule in Indiana, 54 IND. L.J.
467, 476-79 (1979).
111. D'Amicol v. Alvarez Shipping Co., 31 Conn. Supp. 164, 168, 326 A.2d 129, 131
(1973).
112. See generally notes 42-46 supra and accompanying text.
1981]
MENTAL DISTRESS
1 3
Coca-Cola Bottling Plants, Inc.2
The broad foreseeability test
"rolls into a single formula much that is relevant to the issue of
duty, negligence and damages .... The seeming simplicity of the
'all purpose' formula could prove a snare resulting in great injustice
and endless confusion in cases to come."1 1' To avoid the snare, the
courts must respond to the particular situation with relevant policy
considerations in mind. They must not shun their own "duty" to
administer the law justly by resorting to overbroad formulations of
foreseeability.
No matter what developments are immediately forthcoming, the
present confused law of the negligent infliction of mental distress
will ultimately be clarified and corrected. As Justice Cardozo wrote:
Ever in the making, as law develops through the centuries, is this
new faith which silently and steadily effaces our mistakes and eccentricities. [As to] the enduring consequences of our actions,...
[t]hey may work a little confusion for a time. In the end, they will
be modified or corrected or their teaching ignored. The future
takes care of such things. In the endless process of testing and retesting, there is a constant rejection of the dross, and a constant
retention of whatever is pure and sound and fine.115
"No rule is settled until it is settled right."210 One can hope that the
rule is "settled right" sooner than later.
Mark A. Beede
113.
269 A.2d 117 (Me. 1970).
114. Green, Foreseeability in Negligence Law, 61 COLUM. L. REv. 1401, 1401
(1961).
115. B. CARDozo, THE NATURE OF THE JUDICAL PRCESS 179 (1921).
116. Lambert, supra note 62, at 586.