Chapter 19

Emotional Harm
§1. Intentional Infliction of Emotional Distress

Chanko v. American Broadcasting Companies, Inc.

Facts:
 Mark Chanko was brought into the emergency room after being hit by a vehicle
 While being treated, employees of ABC news were in the Hospital filming a documentary series about medical
trauma and the professionals who attend to the patients
 No one informed decedent or any of the other patients that there was a camera crew filming, and their consent
was not obtained
 His death declaration was filmed on ABC along with his prior treatment
 Sixteen months later, his widow had been watching television when she recognized the scene, voice, and death
of her late husband which was the first-time plaintiffs became aware of the recording of decedent’s medical
treatment and health
Issue:
 Whether defendant is liable for intentional infliction of emotional distress in broadcasting a recording of a
patient’s last moments of life, without consent
Rule of Law/Analysis:
 Rule of Law:
o This Court has enumerated four elements of a cause of action for intentional infliction of emotional distress:
(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of
causing, severe, emotional distress; (iii) a causal connection between the conduct and injury; and (iv)
severe emotional distress.
o Liability has been found only where the conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community
 Analysis:
o The complaint alleges that plaintiffs watched the episode and were shocked and upset, that defendants acted
intentionally, recklessly, willfully, maliciously, and deliberately, and that it was foreseeable that plaintiffs
would be caused to suffer emotional distress.
o The complaint alleges that defendants acted with reckless disregard for the probability that they would cause
plaintiffs to suffer emotional distress, and that defendants knew or should have known that emotional distress
was likely a result of their actions
o The complaint further alleges that plaintiffs experienced emotional distress due to defendant’s conduct, and
that defendants conduct was extreme and outrageous, beyond all possible bounds of decency, utterly
intolerable in a civilized community, and without privileges.
o The footage did not include decedent’s name, his image was blurred, and the episode contained less than three
minutes devoted to decedent. We cannot conclude that it was so extreme and outrageous to satisfy our
exceedingly high legal standard.
Holding/Reasoning:
 Holding:
o The order dismissing plaintiff’s claims for intentional infliction of emotional distress is affirmed.
 Reasoning:
o We conclude that defendant’s conduct here, while offensive, was not so atrocious and utterly intolerable as to
support a cause of action in the context of this tort. Hence, there is no need to address whether the
newsworthiness privilege is applicable.
GTE Southwest, Inc. v. Bruce
Facts:
 Several employees of GTE working under Morris Shields alleged that over a period of years, Shields engaged in
a pattern of grossly abusive, threatening, and degrading conduct, regularly using the harshest vulgarity, verbally
threatening and terrorizing them.
 He would physically charge at employees, yell, scream, and pound his fists when requesting the employees to do
things.
 There was testimony that he often called one employee into his office and kept her standing there up to thirty
minutes while he simply stared at her
 He required employees to vacuum their own offices daily despite the availability of regular janitorial services
Issue:
 Whether GTE is liable for intentional infliction of emotional distress
Rule of Law/Analysis:
 Rule of Law:
o In determining whether certain conduct is extreme and outrageous, courts consider the context and the
relationship between the parties …
o Occasional malicious and abusive incidents should not be condoned, but must often been tolerated in our
society
o But once conduct such as that shown here becomes a regular pattern of behavior and continues despite the
victim’s objection and attempts to remedy the situation, it can no longer be tolerated. It is the severity and
regularity of Shield’s abusive and threatening conduct that brings his behavior into the realm of extreme and
outrageous conduct
 Analysis:
o Shield’s ongoing acts of harassment, intimidation, and humiliation and his daily obscene and vulgar behavior,
which GTE defends as his ‘management style.’ Went beyond the bounds of the tolerable workplace conduct
o
Holding/Reasoning:
 Holding:
o Held, affirmed
 Reasoning:
o A jury found for plaintiffs in their suit for intentional infliction of emotional distress
 §2. Negligent Infliction of Emotional Distress
A. Emotional Distress from Direct Risks of Physical Harm

Stacy v. Rederiet Otto Danielsen, A.S.

Facts:
 In dense fog, a small group of vessels fished for salmon
 Stacy owned and operated a small vessel which picked up a signal from a large freighter a mile away that was on
a collision course directly toward the Marja
 When Stacy realized that the freighter was heading straight for him, he feared for his life
 The freighter passed so close to the Marja and collided with another small vessel, causing the death of that ship’s
captain
Issue:
 Whether Stacy was in the zone of danger and suffered emotional distress as a result of negligent infliction of
emotional distress
Rule of Law/Analysis:
 Rule of Law:
o Under applicable maritime law, “a tort is committed by a defendant subjecting a plaintiff to emotional harm
within the zone of danger created by the conduct of the defendant”
o The zone of danger test allows recovery for those plaintiffs who are placed in “immediate risk of physical
harm” by defendant’s negligence conduct
o “Those within the zone of danger of physical impact can recover for fright and those outside of it cannot
 Analysis:
o Stacy alleged that he was within the zone of danger and that he suffered emotional distress from the fright
caused by the negligent action of the defendants. Nothing more was required to assert a cause of action
Holding/Reasoning:
 Holding:
o Held, reversed and remanded
 Reasoning:
o Stacy was within the zone of danger and suffered emotional distress
Mitchell v. Rochester Railway Co.
Facts:
 Plaintiff was in the street about to board a street railway car when the defendant drove a team of horses at her
 By the time the horses were stopped, the plaintiff found herself standing between the team, although never
touched by them
 The plaintiff suffered shock and a miscarriage as a result
Issue:
 Whether Rochester Railway Co negligently inflicted emotional distress that directly risked plaintiff’s physical
harm
Rule of Law/Analysis:
 Rule of Law:
o Without a physical injury the negligence of the defendant would not be a proximate cause
 Analysis:
o Was never touched by the team of horses
Holding/Reasoning:
 Holding:
o The New York Court of Appeals held (1) there could be no recovery for fright alone and (2) as a corollary
there could be no recovery for consequences of fright, even physical consequences like the miscarriage
B. Emotional Distress Resulting from Injury to Another

Catron v. Lewis
Facts: Nebraska Supreme Court
 Gaylen Catron (plaintiff) was driving his boat on a lake with his daughter’s friends in tow in tubes. The friends
were named Samantha Rader and Aimee Stuart.
 The ropes connecting the tubes to the boat were 61 feet long. Skylar Panek (defendant) was driving a jet ski on
the lake directly toward Catron’s boat.
 The jet ski was approximately 75 yards from the boat when Panek turned away from the boat. In doing so, Panek
ran into and killed Rader. Catron jumped into the water and swam to Rader, taking her back to the boat, but
Rader was unresponsive. After the incident, Catron became depressed and was diagnosed with post-traumatic
stress disorder.
 Catron brought suit for negligent infliction of emotional distress against Panek and Marvin Lewis (defendant),
the owner of the jet ski.
 Catron stated that he had been afraid Panek was going to hit his boat, but only when Panek was headed directly
for the boat, not after Panek turned.
 The district court granted the defendants’ motion for summary judgment. Catron appealed
Issue:
 Did the district court err in dismissing Catron’s claim for negligent infliction of emotional distress.
Rule of Law/Analysis:
 Rule of Law:
o A claim for negligent infliction of emotional distress must show that the plaintiff was a direct victim of the
defendant’s negligence because the plaintiff was within the zone of danger created by the negligence.
 Analysis:
o Under the zone of danger test, a claim for negligent infliction of emotional distress with no physical impact to
the plaintiff must show that the plaintiff was a direct victim of the defendant’s negligence because the plaintiff
was within the zone of danger created by the negligence.
o A plaintiff was in the zone of danger if the negligence put the plaintiff at an unreasonable risk of immediate
bodily harm.
o This is a result to the general rule that a person who breaches a duty of reasonable care is liable for
foreseeable emotional distress caused by the breach.
o In this case, the district court did not err in dismissing Catron’s claim for negligent infliction of emotional
distress.
o Catron was not in the zone of danger of Panek’s negligence because Catron was not placed at an unreasonable
risk of immediate bodily harm.
o Panek’s jet ski was 75 yards away from Catron’s boat, and Catron even acknowledged that he was not at an
imminent risk of physical harm from the jet ski.
o Catron cannot recover for negligent infliction of emotional distress.
Holding/Reasoning:
 Holding:
o The judgment of the district court is affirmed.
Dillon v. Legg
Facts: Supreme Court of California
 While driving his car, Defendant stuck and killed Dillon, a child as she was crossing a public street. Dillon’s
mother and sister, Cheryl (Plaintiffs) sued Defendant for wrongful death. Plaintiffs also sued for negligent
infliction of emotional distress. The trial court found that the mother was in close proximity to Dillon at the time
of collision, but that Defendant’s car never threatened her safety because she was outside the zone-of-danger.
Accordingly, the trial court dismissed the mother’s claim for emotional distress. Cheryl’s action for emotional
distress was not dismissed because she was in the zone-of-danger and feared for her own safety. The mother
appealed.
Issue:
 Because of the defendant’s negligent actions, may he be responsible for causing reasonably foreseeable
emotional distress to a bystander plaintiff who is outside the danger zone?
Rule of Law/Analysis:
 Rule of Law:
o Plaintiff can recover for negligent infliction of emotional distress even if he is not within the “zone of
danger.” Equating the duty to avoid causing emotional harm to bystanders with the foreseeability they might
suffer such harm, the court articulated a set of guidelines to aid in the resolution of the issue of duty in
bystander recovery cases. Duty would be owed if, in light of the expressed guidelines, the accident and harm
were reasonably foreseeable. Negligent infliction of emotional distress liability depends on reasonable
foreseeability
o The Dillon court stated that in determining whether a defendant should reasonably foresee the injury to the
plaintiff, or owe the plaintiff a duty of due care, "the courts will take into account such factors as ...
 (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance
away from it.
 (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and
contemporaneous observance of the accident, as contrasted with learning of the accident from others after
its occurrence.
 (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship
or the presence of only a distant relationship."
 Analysis:
o The more foreseeable the emotional harm, the more likely a defendant is to be held liable for damages. This is
ultimately a factual inquiry that depends on the individual circumstances of each case. No secondary liability
for emotional harm caused to third parties by the negligent harming of an individual can exist unless the
defendant is found primarily liable for the underlying physical harm to the individual. However, once a
defendant is found primarily liable for harm to an individual, third parties should not be barred from also
recovering for emotional distress simply because they are located a few feet outside a vaguely constructed
“zone of danger.”
o Dillon witnessed the death of her child, Erin. She was located so near the scene of the accident as to actually
observe Erin’s death, and her alleged emotional and physical trauma was caused by her observance of the
death. Additionally, she was Erin’s biological mother and enjoyed a very close relationship with her daughter.
When taken together, these factors suggest that the harm suffered by Dillon was reasonably foreseeable, and
Legg is liable for Dillon’s emotional and physical injuries.
Holding/Reasoning:
 Holding:
o The decision of the trial court is reversed- The Supreme Court first announced the right of a parent, who is not
personally injured by an accident, to recover damages for the shock of witnessing injury to another. To define
the foreseeability element of duty more accurately, the Dillon Court set forth guidelines: The plaintiff must be
located near the scene of the accident; the shock must result from a direct emotional impact on plaintiff from
the sensory and contemporaneous observance of the accident; the plaintiff and the victim must be closely
related.
  Discussion: It is no longer required that Plaintiff be in the zone-of-danger in order to maintain an action for the
negligent infliction of emotional distress.

Boucher v. Dixie Medical Center

Facts:
 Daniel Boucher was admitted to the hospital with a severely damaged hand. After surgery, he lapsed into a coma
from which he emerged with severe brain damage and quadriplegia that required extensive medical care for the
rest of his life. Plaintiffs brought actions against the hospital for negligent infliction of mental distress and loss of
consortium.
Issue:
 Was the harm suffered by the parents of a severely injured child the type recognized so as to fulfill the elements
of a claim for negligent infliction of emotional distress?
 May parents bring a cause of action for loss of consortium in connection with the tortious injury of their child?
Rule of Law/Analysis:
 Rule of Law:
o Plaintiffs, who suffered emotional distress because of another’s negligence, though they do not suffer any
physical impact, may recover damages only if they are placed in actual physical peril and fear for their own
safety.
o Loss of consortium claims are based on the recognition of a legally protected interest in personal
relationships. Accordingly, if one member of the relationship is tortiously injured, the non-injured party has a
cause of action to recover for damage to their relational interest, the loss of the injured party’s company,
society, cooperation, and affection.
 Analysis:
o As the court in Boucher observed, “at common law, the father of a tortiously injured child did have a cause of
action to recover the value of the child’s loss of services and the medical expenses incurred on the child’s
behalf.”
o The court drew a distinction as to basis for such recovery. “However, this action was based on a father’s right
to his minor children’s services and a father’s obligation to pay his minor children’s medical expenses. This
right of recovery, therefore, did not extend beyond these two elements of damages, nor did it extend to
injuries involving adult or emancipated children,” and, the court concluded, “no widely accepted development
has occurred that allows recovery in cases involving adult children, nor has any widely accepted development
occurred that allows recovery for the loss of a child’s society and affection.
Holding/Reasoning:
 Holding:
o The decision of the lower court was affirmed.
 Reasoning:
o The court concluded that the parents did not allege sufficient facts to state a claim of negligent infliction of
emotional distress as the claim was defined in Utah. The court declined to extend loss of consortium rights to
parents of a tortiously injured child.
 Discussion:
o Courts almost universally permit a spouse to recover against a person who seriously injures the other spouse,
usually known as a “loss of consortium” claim. Such claims were eventually extended to include recovery for
more than the economic loss of the of the injured spouse’s household services. Loss of consortium claims
presently allows a plaintiff to recover damages for such things as loss of companionship and other forms of
emotional support.
o The issue surrounding the negligent infliction of emotional distress claim was more straightforward. The court
applied the zone of danger test, i.e., allowing a claim only if the plaintiffs are placed in actual physical peril
and fear for their own safety.
E. Toxic Exposures: Fear or Future Harm

Potter v. Firestone Tire & Rubber Co.

Facts: Supreme Court of California
 Firestone (defendant) only disposed of its toxic substances in “Class I” landfills, which were authorized to accept
hazardous waste. Due to increased costs, Firestone changed this policy and began disposing of its toxic waste in
“Class II” landfills, which prohibited hazardous substances because of the risk of groundwater contamination.
Groundwater near these Class II landfills became contaminated by carcinogens.
 The Potters (plaintiffs) ingested this water and brought a negligent infliction of emotional distress against
Firestone.
 The Potters did not exhibit any present physical injuries but claimed that their fear of developing cancer in the
future was actionable.
 Despite being unable to prove that they were more than likely to develop cancer, the Potters received a large
damage award from the jury.
 The appellate court affirmed the trial court’s judgment and Firestone appealed to the Supreme Court of
California.
Issue:
 Whether the absence of a present physical injury precluded recovery for emotional distress engendered by fear of
cancer.
Rule of Law/Analysis:
 Rule of Law:
o A plaintiff may recover damages for fear of cancer alone if the plaintiff proves that the defendant’s negligence
exposed the plaintiff to a carcinogen and the plaintiff’s fear stems from a knowledge that it is more likely than
not that the carcinogen will cause the plaintiff to develop cancer in the future, however, a plaintiff need not
meet the “more than likely” threshold if the plaintiff proves that the defendant’s conduct was oppressive,
fraudulent, or malicious.
 Analysis:
o Ingestion of a carcinogen alone does not permit a plaintiff to recover, because nearly everyone ingests
naturally occurring carcinogens on a regular basis.
o Imposing the “more than likely” threshold on a plaintiff is consistent with various policy rationales.
o First, everyone is a potential “fear of cancer” plaintiff, and class actions involving slight risks of cancer
development could involve thousands of claims.
o Second, allowing plaintiffs to recover for small risks of developing cancer would threaten drug companies
with costly suits, driving up the cost and decreasing the availability of drugs.
o Third, allowing all plaintiffs with a fear of cancer to recover would diminish the ability of defendants to
properly compensate those plaintiffs who actually develop cancer.
o Fourth, this rule will produce consistency by setting a predictable threshold for liability.
o These policy rationales for the “more than likely” rule do not apply to a defendant who willfully and
consciously disregards the safety of others through despicable conduct.
o When a defendant’s conduct leading to the carcinogen exposure equates to oppression, fraud, or malice, a
plaintiff need not prove a more than likely chance of developing cancer and a court may impose punitive
damages.
o In this case, Firestone’s conduct falls under the oppressive, fraudulent, or malicious exception to the “more
than likely” rule.
Holding/Reasoning:
 Holding:
o The court reversed the judgment of the appeals court which awarded damages to the residents for their fear of
getting cancer, and as to the punitive award, and reinstated the trial court's damages to them for future medical
 monitoring due to exposure from the manufacturer. The matter was remanded for a retrial on the issue of
damages and the issue of the manufacturer's liability for intentional infliction of emotional distress.
 Reasoning:
o The Supreme Court of California held that because the toxic exposure resulted from oppression, fraud, or
malice, pursuant to state statute the residents could recover without having to show that it was more likely
than not that they would develop cancer from the exposure.
o The court held that medical monitoring costs were a compensable item of damages because the residents
demonstrated that the need for medical monitoring was a reasonably certain consequence of toxic exposure.
o Finally, the court held that where a portion of the fear of cancer was attributable to smoking, comparative
fault principles could be applied.
 Discussion:
o As a general rule, compensation for emotional distress is available to plaintiffs only following physical injury.
Such emotional harm, defined as parasitic to the plaintiff’s claim for physical harm, is usually referred to as
“pain and suffering.”
o The court explained that “unless the defendant has assumed a duty to plaintiff in which the emotional
condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the
defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of
duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage
to property or financial interests.”
o Mental distress, which results from fear that an already existent injury will lead to the future onset of an as yet
unrealized disease, constitutes an element of recovery only where such distress is either foreseeable or is a
natural consequence of, or reasonably expected to flow from, the present injury.
o The court articulated a two-point standard for establishing a claim of negligent and intentional infliction of
emotional distress with regard to toxic tort liability: (1) as a result of the defendant’s negligent breach of a
duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer; and (2) the
plaintiff’s fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more
likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure.

Class Notes:
 Emotional Harm
o Intentional Infliction of Emotional Distress [IIED]
 Recovery is not frequent
o Negligent Infliction of Emotional Distress [NIED]
 Parasitic damages
 Intentional Infliction of Emotional Distress
o Four elements of a cause of action for intentional infliction of emotional distress: (i) extreme and outrageous
conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe, emotional distress;
(iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.
 Outrageous: conduct has been so outrageous in character, and so extreme in degree, so to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.
 Negligent Infliction of Emotional Distress
o Stand-alone claims:
o Parasitic Damages:
o Zone of Danger Rule:
 The zone of danger test allows recovery for those plaintiffs who are placed in “immediate risk of physical
harm” by defendant’s negligence conduct
 Zone of danger test usually requires the P to prove that he was immediately threatened with physical
injury.
 The damages in NIED are for the severe emotional distress suffered as a result of that situation.
 o Physical Manifestation of objective symptoms or medically diagnosable emotional order:
o The Impact rule- FL uses it
 No physical injury is needed but there needs to be enough physical impact  increase the objectivity of
claiming severe emotional distress.

Review
Intentional Infliction of emotional distress
 Act with intent to cause severe emotional distress and the severe emotional distress occurs.
 Has to be objectively verifiable
 The act: conduct has to be outrageous- so outrageous that it is beyond the bounds of social decency (utterly
intolerable in civilized society)
o Question of fact what meets that requirement
o Identify the act: you look for power relationships (the actor is like the employer or money collectors) one of
the contexts where you can find these claims (accompanied by regular/repeated behavior)
 Intent: purposeful intent or sufficient knowledge
 Severe emotional distress: you don’t need physical symptoms but need something that is subjectively verifiable
(ex: physiological)
 Much like a conversion tort- no transferred intent
Negligent Infliction of Emotional Distress
 Direct cause of action
 No underlying physical injury
 Proximate cause issue- what’s fair to the defendant
 Two tests:
o Zone of danger: where you are fearful of actually being hit (objectively verifiable- serious fright or shock)
Immediate risk of physical harm- You need subjective and objective fear
o Impact Rule (FL favors): you do not need physical injury but there needs to be actual touching-you need
objectively verifiable emotional distress symptoms.
NIED- Bystander Rules
 Bystander was not in the zone of danger, but the emotional distress resulted from an injury to another.
 The Dillon court stated that in determining whether a defendant should reasonably foresee the injury to the
plaintiff, or owe the plaintiff a duty of due care, the courts will take into account these elements (need to have
all of them):
o Present at the scene of the injury (Current FL rule)
 Judge first decides proximity and then jury
o Sensory observance of the event, contemporaneous observance of the incidence and aware at the time it was
happening the injuries would occur
o Severe emotional distress
o Close family relationship(s) (FL decides who’s close family on a case-by-case basis)
 Plaintiffs, who suffered emotional distress because of another’s negligence, though they do not suffer any
physical impact, may recover damages only if they are placed in actual physical peril and fear for their own
safety.
o Loss of consortium claims are based on the recognition of a legally protected interest in personal
relationships. Accordingly, if one member of the relationship is tortiously injured, the non-injured party has a
cause of action to recover for damage to their relational interest, the loss of the injured party’s company,
society, cooperation, and affection.
o Courts almost universally permit a spouse to recover against a person who seriously injures the other spouse,
usually known as a “loss of consortium” claim. Such claims were eventually extended to include recovery for
more than the economic loss of the of the injured spouse’s household services. Loss of consortium claims
 presently allows a plaintiff to recover damages for such things as loss of companionship and other forms of
emotional support.
o Florida permits recovery under loss of consortium- the child was severely injured or comatose and some
of the courts emphasized that the injury was total and permanent, or even that it was closely similar to death.
Toxic Torts
 The absence of a present physical injury precluded recovery for emotional distress engendered by fear of cancer.
(Future cancer)
o No need of physical injury
o The court articulated a two-point standard for establishing a claim of negligent and intentional infliction of
emotional distress with regard to toxic tort liability:
 (1) as a result of the defendant’s negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to
a toxic substance which threatens cancer; and
 (2) the plaintiff’s fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that
it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure.
o Exception: conduct falls under the oppressive, fraudulent, or malicious exception to the “more than likely”
rule.