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

Once a court opens this box a crack, however, it is very hard to close it on other equally sympathetic indirect victims. The history of the law in this area has been a constant struggle to define some limiting principle that will allow recovery for deserving victims without throwing the courts open to a flood of litigants upset over something that the defendant did to someone else. (Other useful metaphors for the jurisprudence in this area might be a series of defense lines by a retreating army, or successive walls of sandbags holding back a flooding Mississippi.) Indirect infliction claims are a useful study, because they vividly illustrate the difficulty of establishing satisfactory limits to a duty once it has been recognized. The effort of courts to limit indirect infliction claims has led to tortured line-drawing, evasive distinctions, and some of the least intellectually defensible doctrine in the annals of tort law. Emotional distress seems to be one of those areas in which courts cannot solve a legal problem, only decide cases.

THE HISTORICAL APPROACH TO EMOTIONAL DISTRESS CLAIMS

Courts have long awarded emotional distress damages in negligence cases if the defendant causes direct physical injury to the plaintiff. For example, if Marat’s car knocks DuBarry down, DuBarry may recover for any physical injury sustained and for any emotional distress from the accident as well. Restatement (Second) of Torts §456; Prosser & Keeton §54 at 362-363. This would include pain and suffering resulting from the physical injury, emotional distress resulting from disfigurement or physical impairment (such as a facial scar or a limp), and any other demonstrable emotional damages.

This principle, that recovery for emotional distress was proper if the plaintiff also suffered physical injury, became known as the “impact rule.” Emotional distress damages were often described as “parasitic”: They could be added on if the plaintiff suffered a traditional physical contact from the defendant’s negligence, but could not sustain an action on their own. If Marat’s car narrowly missed DuBarry, he could not recover, even if he was badly frightened by the near miss, since he suffered no “impact.”

The impact rule was tort law’s first effort to keep the flood of emotional distress claims at bay. While it defined a limit, many courts found it an intellectually indefensible one. The plaintiff was allowed full recovery for emotional distress if the defendant barely touched him, but denied recovery if the defendant inflicted the same degree of distress (or much more) but just missed hitting the plaintiff. Even if the emotional distress led to a physical illness (for example, if DuBarry suffered a heart attack from fear of being hit by Marat’s car), recovery was barred if there was no physical impact upon which to piggyback the distress damages. The obvious artificiality of this rule invited courts to evade it by literal application. In Porter v. Delaware, L. & W. R.R., 63 A. 860 (1906), for example, the court found the impact requirement satisfied where the plaintiff got dust in her eyes, and therefore allowed full recovery for emotional distress from the accident. A more recent example is Condor v. Wood, 716 N.E.2d 432 (Ind. 1999), in which the plaintiff pounded on the side of a truck to alert the driver that her companion had fallen under the wheels. The court concluded that the pounding constituted an impact, making her eligible to recover for emotional distress due to the injury to her companion.