14

Vicarious Displeasure: Claims for Indirect Infliction of Emotional Distress and Loss of Consortium

INTRODUCTION

Hamlet hit the nail on the head when he complained of the “thousand natural shocks that flesh is heir to.”[1] Even in a “civilized” society such as ours, life is fraught with stresses, anxieties, fears, and sorrows. Many are indeed natural shocks, the inevitable concomitants of unfolding human experience from birth to death (and let’s not forget adolescence either). Much emotional distress, however, is inflicted upon us by other people as well, either deliberately or carelessly.

We live in a culture that attempts a legal response to most problems, probably too many problems, so it should not prove surprising that courts have been asked to fashion a remedy for emotional distress as well. This chapter considers the approaches courts have taken to one of tort law’s most intractable problems, claims for indirect infliction of emotional distress. It then contrasts such claims with another type of claim for emotional injuries, loss of consortium.

Claims for indirect infliction of emotional distress (frequently referred to as “bystander” claims) are based on emotional trauma suffered by one person who witnesses or learns of an injury to another. Here are some examples:

A worker at a construction site sees a coworker crushed under a dump truck.

A father, watching from the living room window, sees his child hit by a car that careens over the curb and onto the front lawn.

A wife suffers emotional distress from watching her husband’s health decline due to medical malpractice.

A parent learns by telephone that his son has just suffered a serious injury in a fire negligently caused by the defendant.

The wife of a comatose patient visits him at the hospital and discovers that he has just been severely bitten by rats.

In each of these cases, the person who suffers direct physical injury from the defendant’s negligence obviously has a claim for those injuries. However, those who witnessed or soon learned of the injury may also seek damages for emotional distress resulting from the traumatic experience of either witnessing that injury or learning of it. Such claims are referred to as claims for “indirect infliction” of emotional distress because they are asserted by bystanders who suffer emotional injury indirectly due to the direct physical injury to another.