XIII. Duty: Emotional and Economic Harm | Samantha Bates | April 25, 2017


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XIII. Duty: Emotional and Economic Harm

Original Creator: Jonathan Zittrain Current Version: Samantha Bates Show/Hide

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.


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  1. 1 Show/Hide More Emotional Harm
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    1. 1.1 Show/Hide More Falzone v. Busch--"The Almost Automobile Accident"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should plaintiffs be allowed to sue for emotional distress which is not connected to any physical injury?
      Plaintiff was seated in her husband's automobile when she saw a negligently driven automobile strike her husband—who was standing nearby. The plaintiff was almost struck by the negligent driver as well. She sued for the distress felt while apprehending a collision between the defendant and herself.
    2. 1.2 Show/Hide More Portee v. Jaffee--"The Child Dying in the Elevator"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should plaintiffs be able to recover damages solely for the emotional distress they feel while watching a loved one suffer and die?
      A seven-year-old boy became trapped between the outer door of an elevator and the wall of the elevator shaft. The elevator is activated and drags the boy's body up three stories. A child sees the trapped boy and runs to find help. Soon after, his mother—the plaintiff—and police officers arrive. Officers tried to free the boy for four hours, to no avail. Throughout the ordeal, the boy cried out and flailed his arms. His mother was restrained from touching him, to prevent interference with the rescue efforts. The boy died while still trapped, his mother a helpless observer. After her son's death, the plaintiff became depressed and unsuccessfully attempted suicide by slitting her own wrist. The plaintiff sued the defendant property owner for negligence in failing to provide a safe elevator.
    3. 1.3 Show/Hide More Pizarro v. 421 Port Associates--"The Decapitating Elevator"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should plaintiffs be allowed to recover for the emotional distress they feel when they witness a nearby stranger getting hurt?
      An elevator malfunctions, decapitating one of the passengers. The head landed near the feet of the plaintiff, who was also a passenger of the elevator.
    4. 1.4 Show/Hide More Gammon v. Osteopathic Hospital of Maine, Inc.--"The Severed Leg in the Bodybag"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should the plaintiff be able to recover for emotional distress, despite the lack of risk of physical harm nor the mishandling of a relative's corpse?
      Plaintiff was accidentally given a severed leg along with the personal effects of his deceased father. He initially mistook the leg as belonging to his father, but eventually discovered the leg was a pathology specimen removed from another body and returned it. Plaintiff alleged that the incident caused him to experience nightmares for the first time in his life, his personality to change, and his relationship with his family to deteriorate.
  2. 2 Show/Hide More Economic Harm
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    1. 2.1 Show/Hide More People Express Airlines, Inc. v. Consolidated Rail Corp.--"The Evacuated Airport"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should courts support a negligence cause of action where the injury is purely economic? If so, how far should courts extend the boundaries of the negligent actor's liability?
      The defendants' negligence led to the risk of a tank car exploding. The business operations of plaintiff's airline—which was within a one-mile radius of the tank car—was interrupted due to a forced evacuation by municipal authorities. Ultimately, no explosion resulted and there was no property damage suffered by the plaintiff. However, plaintiff sued the defendants on the theory that their negligence resulted in economic loss due to the disruption of plaintiff's business activities.
    2. 2.2 Show/Hide More Koch v. Consolidated Edison Co.-- "The New York Blackout Case"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      When a public utility fails to provide its services, should it be liable for possible economic harm flowing from the disruption in service?
      Defendant electric-power company negligently caused a blackout. Plaintiff municipality sued for the increased overtime wages of police, fire, sanitation and hospital personnel as a consequence of the blackout; other plaintiffs sued for lost sales, transfers, transactions, tolls and fares not paid; and lastly, some plaintiffs sued for property damage resulting from looting and vandalism by rioters.

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July 24, 2017

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Samantha Bates

Research Associate

Harvard Law School, Berkman Center

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