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Zittrain Torts Playlist Spring 2018

XIII. Duty: Emotional and Economic Harm

A background feature in our cases so far has been physical harm to the plaintiff. Our breakdown of the cause of action for Negligence (“big-N”) comprises duty, breach (“little-n negligence”), cause-in-fact, proximate cause, and harm. So if there are ways in which courts don’t wish to consider non-physical harm, why not save that for the fifth element of harm instead of our current exploration of the first, of duty? The answer lies in the catch-all function that duty plays: it’s meant to be an on/off gate, something determined as much as possible as a matter of law and early in a case, to see whether a case can be dismissed – even if the facts are as the plaintiff alleges.

Traditionally, claims for purely emotional harm, with no corresponding physical element, were dismissed in just this fashion. Thus a review of claimed harm is analytically parked in the duty category, even as it becomes, awkwardly, a “no” answer to the ungainly question: “Does a defendant have a duty not to inflict purely emotional harm upon someone?” However awkward, the initial rule was simple: if there were no physical element to the defendant’s behavior towards the plaintiff (at least harm, and sometimes more broadly no physical “impact”), then there’s no case. Today’s situation is much more nuanced, as courts overcame a reluctance to entertain such cases and started, in common law fashion, to consider fact patterns in which a case could go forward despite no physical element. (But note: we are speaking here of purely emotional harm. Oddly, it’s been uncontroversially common for defendants to compensate plaintiffs for emotional harm so long as there is an initial physical hook. If someone’s negligence breaks my foot, I can sue not only for doctors’ bills to mend the break, but also pain and suffering – emotional harm – and lost wages – economic harm). 

The cases in this section explore the patchwork of exceptions as various jurisdictions have permitted them, one state at a time. The result, of course, is not a coherent whole that can be represented by a simple or even complicated flow chart. A case from one jurisdiction might flatly contradict the result in another jurisdiction. Our aim is to come away with an understanding of some of the exceptions that have been entertained and the rationales behind them (as well as the arguments against them). And then to be in a position, more generally, when confronted with fact patterns in other doctrinal areas that you think cry out for a day in court, to argue in a legal mode for why an exception should or shouldn’t be made. The history of the doctrine of purely emotional harm is a history of boundary pushing, with lessons perhaps transferrable to any area in which the law is thought to be ripe for expansion. As you’ll see, some of the exceptions have to do with allowing mere physical impact as a gateway, rather than actual physical harm. Others have to do with being in a “zone of danger,” with physical harm a possibility, even though it didn’t come about. (Indeed, in intentional tort, isn’t that what assault unaccompanied by battery is?) Intentional wrongdoing may seem less worthy of solicitude, so we also glimpse, outside of negligence entirely, the willingness of some courts to forge a new wrong of “intentional infliction of emotional distress.” 

We see exceptions for the highly specific category of contemporaneously witnessing at close range the death of a family member. And finally, we see some attempts to avoid the highly specific and instead craft a more general standard for the negligent infliction of (purely) emotional distress.

Purely economic harm has faced barriers similar to purely emotional harm: without a physical hook, such cases fail at the outset. Here the policy reasons behind the barrier may emphasize the unbounded nature of liability – too many negligent acts implicate the affairs of too many people, in ways that other elements of negligence (such as the proximate cause limitations we will learn about) might not be able to well contain. In this refreshingly brief subsection, we look to see how some courts have handled pleas for exceptions to a bar on purely economic harm.