A Look at How the Common Law Evolves

The study of torts can often feel like a history lesson. So many cases take place on the barges and trains of a bygone era that one can fall into a trap of thinking that it's a fairly static subject. But the dynamism of the common law really becomes apparent when we study something like emotional harm. Cases like Falzone v. Busch, Portee v. Jaffee, and Gammon v. Osteopathic Hospital of Maine, Inc. illustrate that the judicial system is willing to adjust the law to adapt to modern sensibilities.

Historically, plaintiffs could not be compensated for purely emotional harm.  Some evidence of physical harm was necessary in order for plaintiffs to recover.  From a policy perspective, courts worried that without any physical evidence of harm, plaintiffs could more easily feign injury and claim the right to compensation.  However, this trend began to change as medical research revealed that mental injuries and distress could cause psychological damage. In some cases, mental injuries could even manifest themselves in physical symptoms, a disorder sometimes known as somatization. Today, the medical profession and society at large recognize the extraordinary impact emotional harm can have on a person.

Courts have slowly but steadily been following this societal trend. In Falzone v. Busch, we start to see the shift in how courts characterized emotional harm. The plaintiff in Falzone watched from her car as her husband, standing some distance away from her in a nearby field was hit and injured by a negligent driver.  The plaintiff became sick and afraid for her own safety when the negligent driver veered towards her car and narrowly missed running into her. The plaintiff required medical attention, but did not have any lasting injuries. Although there was no physical contact, the court determined that the plaintiff suffered physically from fright caused by the negligent driver and should be compensated. However, the opinion in Falzone still required that any physical symptoms resulting from fright be “substantial” in order to impose liability on the defendant:

We hold, therefore, that where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright. Of course, where fright does not cause Substantial bodily injury or sickness, it is to be regarded as too lacking in seriousness and too speculative to warrant the imposition of liability.

We see the law continue to evolve in Portee v. Jaffee, a horrible case in which a mother helplessly watched as her seven year-old son died while trapped between the outer door of an elevator and the elevator shaft.  In contrast to the fact pattern in Falzone, the plaintiff in Portee had no fear of injury to herself, rather, her distress resulted from watching her own son die. The court determined that in some situations plaintiffs should recover even when they do not fear for their own physical safety. However, the Portee court remained concerned about overextending the scope of liability, so it limited recovering to cases that met four requirements:

(1) the death or serious physical injury of another caused by defendant's negligence;

(2) a marital or intimate, familial relationship between plaintiff and the injured person;

(3) observation of the death or injury at the scene of the accident; and

(4) resulting severe emotional distress.  

The leap between Falzone and Portee is quite extraordinary, because it severs the direct link between the defendant’s actions and the plaintiff’s injuries. Seeming to recognize this, the court went out of its way to limit the new standard--only those directly witnessing a serious injury to a close relative could claim emotional harm. For a while, this remained the standard. For example, in Pizarro v. 421 Port Associates, the plaintiff suffered from severe shock after a man standing next to her in an elevator was decapitated. Although the unfortunate plaintiff was likely emotionally scarred for life, she wasn’t able to recover because the deceased was not a close relative. Courts around the country were trying to recognize and compensate emotional harm, but in their trepidation had created a swirling set of rules involving physical manifestations and witnessed harm committed to close relations. That all changed with the onset of cases like Gammon v. Osteopathic Hospital of Maine, Inc..

In Gammon, the plaintiff received a bag of personal effects from the hospital where his father had recently died. Instead of finding the usual assortment of clothing and accessories, the son instead opened the bag only to find a severed, bloody leg. The plaintiff believed the leg was his father’s, although he later learned that it had belonged to another, likely more unlucky patient.  The plaintiff did not suffer physically but had nightmares for several months and his relationship with his family deteriorated. The court in Gammon disregarded the rules set by prior emotional harm cases and declared that “these more or less arbitrary requirements should not bar Gammon’s claim for compensation for severe emotional distress.”  Essentially, the circumstances in Gammon were so extreme that the court was willing to allow for more flexibility in emotional harm cases despite the legal system’s prior concerns about expanding the scope of liability.

Both the Falzone and Portee courts created new, but still limited, rules precisely because they wanted to change the common law. Perhaps in giving due deference to previous decisions, they opted for bright line rules that would edge the law just far enough to encompass the particulars of their cases. However, once the law was sufficiently nudged, the Gammon court was able to break through these bright lines entirely and set a new standard for emotional harm. This is legal evolution at its finest, and shows how entirely new law may be made without any legislation. It is evidence that the American torts system, while flawed, is remarkably adaptive to changes in society.

-Ellis & Acton

The Case of the Ornery Coach

It's the last week of October, and all the traditional rites of fall seem to be in full swing. Pumpkins are making their way onto porches and leaves are [finally] starting to give up for the winter. And in the sports world, Major League Baseball is passing the baton of America's Seasonal Pastime (Non-CTE Division) to basketball. For millions of fans the true essence of basketball is not found in the NBA, where some teams intentionally lose. Instead, the heart of the game can be found in the 352 college campuses that make up the NCAA's top division. But as the season tips off, one of the most celebrated and decorated coaches in the college game's history will not be found on the sidelines. Instead, Rick Pitino, erstwhile head coach of the University of Louisville (and way before that, my beloved BU Terriers), has found himself the most prominent casualty of a bribery scandal sweeping college basketball. 

The Federal complaint hides many identities, but among all the implicated colleges and coaches, none have caught the public's attention more than Louisville and Coach Pitino. The details of Pitino's alleged transgressions are still being uncovered, but at the very least the FBI has claimed that Louisville sponsor Adidas paid $100,000 to induce star recruit Brian Bowen to choose the Cardinals over fellow blueblood programs at Texas, Michigan State, UCLA, and others. There are disputes about the degree to which Pitino was directly involved in the bribery, but it doesn't look good. At the time Bowen surprised the basketball world by choosing his program, Pitino told the press "In my 40-some odd years of coaching, this is the luckiest I've ever been." A bold statement for somebody thought to be "Coach 2" in the FBI's complaint, a person alleged to have directed Adidas to pay Bowen. It's probably also worth noting that Adidas somewhat shadily pays Pitino millions of dollars a year. 

This all seems like a great topic for This Week in Racketeering, but what does it have to do with torts? Well, following his dismissal, Coach Pitino filed a rather extraordinary federal civil complaint against Adidas in the Western District of Kentucky. The complaint alleges that Adidas did, in fact, funnel $100,000 to Bowen in order to secure his commitment to Louisville--but without Pitino's knowledge. In doing so, Pitino claims that "Adidas' outrageous and unlawful actions, and the public disclosure of those actions, have resulted in grave damage to Coach Pitino's public and private standing and reputation, causing him extreme embarrassment, humiliation, and emotional distress." 

It practically goes without saying that this scandal has damaged Pitino's public standing and reputation. But it's still saying quite a lot, given that his program has recently been shown to provide recruits with prostitutes in order to secure their commitment. The more interesting component is the allegation of intentional infliction of emotional distress. The torts-nerds among you will know that, historically, there was a bar on recovery for emotional harm. Among other things, the theory was that emotional harm is difficult to prove and easy to feign. Still, the common law has adapted over the last 100 years to recognize that there are times when emotional harm is significant and should be compensable. 

In our class, we focus on the negligent infliction of emotional distress (NEID), but here Pitino is claiming intentional infliction of emotional distress (IIED), or more specifically the slightly archaic variant, outrage. As he states in his complaint, "Kentucky recognizes the tort of outrage, which authorizes the recovery of damages from one who, by extreme and outrageous conduct, intentionally or recklessly causes emotional distress to another." Pitino states no other causes of action in his suit. 

If that sounds like a potentially weak complaint to you, Pitino's lawyers anticipated that, going to great length to explain why outrage is his only option to right perceived wrongs:

"The tort of outrage is, of course, a gap-filler, meant to apply when no other traditional tort does. And no other traditional tort appears to apply here. Adidas could not have committed an employment-related tort, because it was not Coach Pitino's employer. It could not have committed a negligent tort, because its conduct, and that of its employees, was quite deliberate. It could not have engaged in tortious interference with a contract, because it had no desire to adversely affect Coach Pitino's contracts with his employer or others; on the contrary, Adidas' financial interests were best served by keeping its actions secret, and thus having no effect on Coach Pitino's contracts. It could not have defrauded Coach Pitino, because its fraudulent actions were directed at the University of Louisville, which provided a college scholarship to an ineligible recruit. And it could not be accused of unjust enrichment, because any enrichment it gained was not at Coach Pitino's expense." (Pitino Complaint)

That's basically an entire torts course in a paragraph, listing all the reasons Adidas could not be liable for a laundry list of torts. And so all that's left is outrage, "a gap-filler" whose vagueness is apparently a feature as well as a bug. Once upon a time, Lion of the Law™ William Prosser suggested (perhaps in jest) that Intentional Infliction of Emotional Distress/Outrage be instead called "orneriness." Given the facts of the Pitino case, including his past public dalliances with scandal and alleged role and financial interest in the underlying bribery, orneriness might indeed have been a better label for his suit. This Week in Torts wishes Coach Pitino the best of luck in his future endeavors. 

-Ellis