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commentary on chapter 2 emotional Distress and thevictim’s Perspective Alan L. Durham Tort law severely limits recovery for negligently inflicted emotional distress. In “The Ambiguous Standing of Suffering in Negligence Law,” Gregory Keating observes that unchecked recovery for emotional harm would jeopardize activities indispensable to the modern world. One cannot make the omelets of a contemporary society without breaking some emotional eggs, yet we would not return to an agrarian existence for the sake of emotional tranquility any more than the people of the nineteenth century would have given up heavy industry in exchange for protection from physical dangers.1 The emotional consequences of carelessness can be far-reaching, and carelessness is, to a certain extent, unavoidable when humans interact. Recognizing that liability without limit would cripple society, the law “tacitly authorizes ,” by denying compensation, a good deal of emotional anguish. Keating argues that limits on recovery for negligently inflicted emotional distress are rooted in proximate cause, rather than in categories of duty and nonduty.Proximate cause is a familiar common-law mechanism for limiting the consequences of breaches of duty that have already occurred. In Justice Andrews’s famous dissent in Palsgraf v. Long Island Railroad,2 he compares the aftereffects of negligence to ripples spreading in a pond or waters converging in a stream.At some point proximate cause is exhausted and the law follows the consequences of negligence no longer. Recovery for negligently inflicted emotional distress, Keating writes, is always contingent on breach of an independent duty—a duty based on a preexisting relationship, or the obligation to avoid negligently causing physical harm. Consistent with the mechanism of proximate cause, the rules governing the negligent infliction of emotional distress limit the legal consequences of the breach—in cases Commentary on Chapter 2 123 of bystander liability, for example, limiting recovery to close family members at the scene of the accident and excluding strangers who might also be traumatized by what they witness. To explain why some negligently inflicted harm is subject to compensation and other harm is not—why, in other words, the law draws the line at some consequences of carelessness but not others—courts often call upon foreseeability. In Dillon v. Legg, the case that introduced bystander liability, the Ninth Circuit Court of Appeals announced that liability for emotional harm should depend on whether the injury was “reasonably foreseeable.”3 But this limitation, as the same court later acknowledged,4 amounts to no limit at all. Keating agrees: “A general duty to exercise reasonable care not to inflict emotional distress on others,”even foreseeable emotional distress, “would be almost literally unbearable.” Some limiting principle other than foreseeability must be found. Keating discusses an approach to “discriminating,”or picking and choosing , that does not depend on the foreseeability of the injury but on the nature of the emotions that underlie the victim’s distress. He observes that emotional suffering is, in part, a product of the victim’s character or will. In some cases, we might hope that victims will bear up and carry on, refusing to succumb to the distress they might otherwise feel.In other situations,we would find such equanimity“appalling.”In one bystander liability case,Portee v. Jaffee,5 a mother stood by helplessly as her seven-year-old son, caught in the machinery of an elevator, suffered and died as rescue workers struggled to free him.Keating observes that we would not expect,nor would we want, parents to experience anything but devastating suffering in those situations. We all have an interest in strong family ties. A sense of identity with one’s children promotes individual sacrifices that improve the general welfare and free society from burdens that it would otherwise have to bear. If familial bonds are strong, the suffering must be great when they are broken. If limitations on tort recovery for emotional distress promoted indifference among family members rather than strong and enduring commitments, the choice would be shortsighted indeed. But it is hard to imagine that common-law liability rules could really have that effect. No mother would maintain an emotional distance from her son simply because, if some harm should befall him, the pain she would experience would not be “compensated ” in court. Family bonds, one can safely assume, were as powerful before Dillon v. Legg as they are now, and they are just as strong today in jurisdictions that have declined to adopt bystander liability.More to the point, perhaps, is our need as...

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