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

The distress in such cases is often both foreseeable and severe. Thus, the plaintiff will frequently be able to establish that the defendant’s negligence was an actual and proximate cause of his emotional damages. Consequently, courts which have sought to limit liability for indirect infliction of emotional distress have usually used duty analysis to do so. Many courts have held that defendants owe no duty to avoid inflicting emotional distress on bystanders, or only owe such a duty in very limited circumstances. That is why this chapter, which seems to deal primarily with a type of damages, appears in the duty section of the book.

It is not hard to see why courts are reluctant to impose a duty to avoid indirect infliction of emotional distress. Several important factors relevant to duty analysis suggest caution in creating such a duty. First, the very foresee-ability of such distress argues for restraint. For every victim who suffers negligent physical injury, a number of bystanders may suffer emotional distress:

It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as all his friends.

Prosser & Keeton §54 at 366.

Second, courts are reluctant to impose a duty to persons who have no relationship to the defendant. While the defendant usually has some immediate interaction with the direct victim of his negligence-the child hit by the car, the patient diagnosed, the worker actually hit by the dump truck-he usually has had no contact with bystanders who suffer indirect emotional distress. He may not know who they are, where they are, or how many of them there are.

Third, judges are justifiably concerned about the impact that creating a duty will have on the administration of justice. Recognition of indirect infliction claims could clog the courts with suits over trivial unpleasantries better dealt with by “a certain toughening of the mental hide.” C. Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033, 1035 (1936). In addition, courts have feared the specter of fraudulent claims. It is easy enough for a plaintiff to carry on about how distressed he was by the defendant’s conduct, and even to believe it after a while. It is difficult to verify such claims, or to attribute the plaintiff’s distress to the defendant’s conduct, as opposed to the thousand natural shocks that take their toll on us all.

Thus, for many years courts severely limited indirect infliction claims, lest such claims open a Pandora’s box of woes for both courts and defendants. However, the compelling nature of the suffering inflicted on indirect victims has led to a gradual recognition of some claims for indirect infliction of emotional distress. How can a court refuse recovery to a father who watches a driver negligently run down his child and suffers a heart attack on the spot? Many courts, unable to turn such sympathetic plaintiffs away, have created a duty to avoid inflicting emotional distress, at least in limited circumstances.