Chapter IV The Duty Requirement: Nonphysical Harm'

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Chapter IV The Duty Requirement Non-physical
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?
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Chapter IV Duty Nonphysical Harm
The prima facie case in negligence Duty Emotiona
l Distress? Breach Causation Damages
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Problem
Marlene F. brought her 13 year old son to
Affiliated Psychiatric Clinics seeking counseling
for family problems. The clinics psychologist
began treating her son, and then began treating
her as well, because he believed that the sons
psychological problems arose in part from
difficulties in his relationship with his mother.
Two years after treatment began, Marlene
discovered that the therapist had molested her
son. Marlene F. sued the clinic, alleging that
the molestation caused her severe emotional
distress and further disrupted the family
relationship. Can she state a cause of
action? If the sons father also sued, could he
state a cause of action?
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Emotional Distress
1. physical injury, emotional harm follows 2.
threat of physical injury, emotional harm
results 3. emotional harm caused by a physical
injury to another person 4. conduct directed at
you creates an unreasonable risk of emotional
harm
Recurring fact patterns
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Fact Pattern 1 Negligence causes physical
injury, emotional harm results from the injury
By way of background Where negligence causes
physical injury, and emotional distress
accompanies the injury Duty Breach
Causation Damage / Injury
The issue is treated as one for the law of
remedies!
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Fact Pattern 1 Negligence causes physical
injury, emotional harm results from the injury
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)
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Chapter IV Emotional Harm
Should pain and suffering damages be recoverable
when they are attendant on a physical injury?
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Fact Pattern 2 Threat of physical injury,
emotional harm occurs
Falzone v. Busch
Usual tort case
Act by Driver
Act by Driver
Duty act creating risk of physical injury
Duty act creating risk of physical injury
Is the injury a natural proximate result of the
act?
Physical Injury to P.
Fright to P.
Pain Suffering, Distress, Fright
Physical Injury to P.
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Fact Pattern 2 Threat of physical injury,
emotional harm occurs
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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Fact Pattern 2 Threat of physical injury,
emotional harm occurs
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.
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Fact Pattern 2 Threat of physical injury,
emotional harm occurs
Falzone v. Busch Three reasons for denying
recovery 2) Never allowed this kind of recovery
before. Common law evolves.
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Fact Pattern 2 Threat of physical injury,
emotional harm occurs
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 harm occurs
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.
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Fact Pattern 2 Threat of physical injury,
emotional harm occurs
Falzone (p. 266) As to whether physical
injury is a probably or natural conseqence of
fright, the court (below) decided as a matter of
law an issue which we believe is properly
determinable by medical evidence. Lawson, n.
7, p. 269 (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. What is not foreseeable is the severity
of peoples psychological reactions to the crash.
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Fact Pattern 3 distress at injury to another.
Portee v. Jaffree
Elevator Mfr.
Duty to avoid physical injury
Duty?
Injured boy
Mother who is watching? Other tenant who is
watching? Father who hears later?
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Fact Pattern 3 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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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.

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Fact pattern 4 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.
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Fact pattern ??? Johnson v. Jamaica Hospital
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Fact pattern ??? Johnson v. Jamaica Hospital
Hospital
Duty to avoid physical injury
Duty?
Parents
Infant
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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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Chapter 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?

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Who can recover damages for emotional
distress? Plaintiffs who suffer a physical injury
as the result of someones negligence? Recovery
for the emotional distress that stems from the
injury allowed in all jurisdictions.
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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 Lawson (airplane crash
case) disagrees
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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.
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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.
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Chapter IV Emotional Harm

• Problem 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.

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Assignments

Tuesday 506-529 Wednesday 550-569 Thursday
569-595 Friday 569-595