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