Intentional Infliction of Emotional Distress (ED) – Torts


Duty rule of Emotional Distress
  • Developed in 19th century
  • Said man up, dont be a pussy
  • Concerned about fraudulent claims

Emotional distress caused by fear of personal physical harm


Duty, there’s no duty, in certain circumstances, to protect against emotional distress.

Gammon v Osteopathic Hospital (Was the Emotional Distress Foreseeable???)
Guy got a leg in a box that was supposed to be the deceased’s personal effects
Can you recover for severe emotional distress even without physical injury or any other underlying tort?
Damages can only be awarded when such harm reasonably could be expected to befall the ordinary sensitive person.
Is it foreseeable that there could be severe ED as a result of the actions?
Direct dictum

Fear for your own safety Emotional distress caused by fear of personal physical harm
  • Courts were very skeptical, then they start to see maybe it can be real
  • Horse and buggy runs you down your injured –> Sure you can recover
  • Horse and buggy swerves at the last second and brushes your arm –> slight contact will give you a cause of action
  • Horse and buggy swerves at the last second and almost kills you –> ~1950 dont even need slight impact you can probably recover if you have side efects, nightmares etc
  • Mother who comes on the scene
  • Sees condition/danger/injury of her child
  • Bystander cause of action?
  • If youre in the zone of danger you can have a cause of action (nearby almost hit by car, istead her kid is hit)
  • Well now shes across the street SO she is NOT in the ‘zone of danger’
    • With Gammon Rule you can argure that the emotioanl distress is forseeable so she CAN RECOVER UNDER GAMMON RULE
  • We will see CA loosens up the bystander rules
    • Foreseeability had the potential to DRASTically change the law…IT STARTED TO…but then it didnt

Despite the foreseeability dictum, there will still be RULES…FORESEEABILITY alone WILL NOT BE ENOUGH



NEXT CLASS

More v American Airlines 304-305

Parents and children do not have action for loss of consortium
Dillon case Read Dillon ¶ very very carefully!!!!!
Thing in Supplement which cuts back on Dillon
In Justice Kaplans opinion pg 304
Most courts have allowed a cause of action for the loss of companionship of an INJURED child
  • Roberts v Williamson 2003 Texas court dissagreed rejected 6-3 a cause of action for an injuered (but not dead) child
    • Dissent argued there should be no distinction between death and disabling injury
  • Lester v Sayles upheld lost consortium from injured child for $1.86mil to a Mother

In Borer v American Airlines 1977

Court refused to allow 9 young children a cause of action for their mothers consortium loosing injuries
  • the loss was recoverable for mothers losses
    • Reason to only allow the mother to recover
      • inadequacy of money to alleviate children’s pain
      • difficulty of measuring damages
      • danger of imposing extended disproportionate liabliltiy
      • These factors almost mirror Traynors dissent in the Seffert case

Ferriter v Daniel Oconnells rejected this view in Massachusats 1980

  • Court reviewed and rejected Borer v AmAirlines and held that the children do have a cause of action for the loss of parental society if they can prove they were dependent both economically and emotionally.

Jacob v Brickenhoff

Man sues wife’s psychiatrist when she divorces him –> Court rejects this
  • “sound public policy counsels that a psych’s treatment of a troubled spouse should not be burdned by accountability to the other spouse”

Thing v Chusa

Reversing gears

Plaintiff may only recover if:
  1. Is P is closely related to injury victim (blood, marriage, relatives living in houshold, parents, siblings, children and granchildren)
  2. P is present at the scene of injury at the time it occurs, AND is aware the event is causing the injury
  3. P suffers serious ED greater than the disinterested witness

Dillon v. Legg (One of the most followed cases)

Dillon v. Legg was the first court in the country to abbondon old idealogy of ###
How would Dillon interpret Portee Facts??
  • 1. is plaintif close proximity to accident as opposed to away from it?
    • yes Portee was close by
  • 2. Did the shock result as a temporal observance of the accident? Now we need to decide what the “accident” is… death? injury? watching?
    • She is somewhere inbetween
      • What if she showed up right after death?
      • A sensory and contemporaneous observance of “the accident”
  • 3. Closely related as a relative. (what is the spectrum?)
Portee v Jaffe
Portee son Guy became trapped in an elevator
During rescue attempt P had to standby and watch
Son was severely injuered and died from elevator

She suffured severe ED
Tried to commit suicide

Trial court granted sum jug for D

Supreme court reviewed

We can justify this cause of action because it doesnt create a new duty

? Cause of action for Fear for safety of things that happened to a close relative?


In water Cooler Case – No cause of action
In the drowning case – Cause of action
Conclusion:

Innocent bystander

Loss of Consortium – Husbands and wives usually have a casue of action for loss of spouse
Parents probably have a cause for loss of child
Child generally does not have cause for lost parent (CA does not give child a cause)
Direct Victim
Telegram case (Husband is Dead) and the Leg case
Fear for your own safety
Used to require physical manifestations
then needed slight impact
Then no contact needed just fear
Difficult cases are bystander cases
Mother suffers ED from injury to a proximate child/spouse
Most courts adopted zone of danger
She can recover for her own ED if she was in the zone of physical danger
Not really creating a new duty, the truck driver already owed a duty of care not to hurt her or her child
Legg case, two sisters walking, one was hit. the sister could recover because she was there. traditionally the mom couldnt because she wasnt there
The guideline is foreseeability, was the emotional distress foreseeable? near, far?
Water cooler electrocution and drowning
In water Cooler Case – No cause of action
In the drowning case – Cause of action


Thing Case ::
They define close relative by blood or marriage, live in family member
You have to be there when the accident occurs, you cant come right after
You have to be aware that the accident is occuring/causing harm
  1. Is P is closely related to injury victim (blood, marriage, relatives living in houshold, parents, siblings, children and granchildren)
  2. P is present at the scene of injury at the time it occurs, AND is aware the event is causing the injury
  3. P suffers serious ED greater than the disinterested witness
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