Although the impact rule was no “hymn to intellectual beauty,” it did address some of the policy concerns relevant to duty. It alleviated fears of fraudulent claims, perjured (or at least, exaggerated) testimony and excessive damages based on jury sympathy. It premised liability on an objective fact that could be proved or disproved, and, in a rough sort of way (all right, a very rough sort of way), filtered out frivolous claims while allowing the most serious ones to proceed. A few courts still apply the rule, at least in some types of cases. See, e.g., Jordan v. Atlanta Affordable Housing Fund, Ltd., 498 S.E.2d 104 (Ga. Ct. App. 1998).
The impact rule bars recovery in most indirect infliction cases, because these claims are generally asserted by bystanders who were not directly involved in the accident. Some courts, unwilling to turn all bystander plaintiffs away, have adopted alternative tests to define the duty in indirect infliction cases. Some allow a bystander to recover for emotional distress if he was in the “zone of danger,” that is, if he was close enough to the defendant’s negligent conduct to be placed at risk of physical injury, even though he was not actually touched. Under the zone-of-danger rule a mother walking next to a child hit by a negligent driver would recover for emotional distress due to witnessing injury to her child, since she might have been hit herself.
The rationale for the zone-of-danger approach is that the defendant owes these bystanders a duty of care because they are within the area of the risk created by his conduct, and hence injury to them is foreseeable. This rationale derives from Justice Cardozo’s proximate cause analysis in Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928). Since injury to the bystander is foreseeable, the argument goes, the defendant has a duty to avoid injury-either physical or emotional-to him.
The zone-of-danger rule compensates a limited class of indirect victims, a class that is reasonably likely to be seriously affected by the accident. However, like other limiting principles in this area, it is easier to criticize than to justify. The father who watches from the house as his wife and child cross the street will suffer just as much distress if the child is hit as the mother will. In addition, his presence is foreseeable, though he is not within the zone of risk of physical injury. Yet, because he is out of range of the car, he is barred from recovery under the zone-of-danger rule, no matter how manifest his distress may be. The line drawn is basically arbitrary. In the words of a leading decision on emotional distress, it suffers from “hopeless artificiality.” Dillon v. Legg, 441 P.2d 912, 915 (Cal. 1968).
The arbitrariness of the zone-of-danger rule has led other courts to seek a more flexible approach to indirect infliction claims. Many states have found such an approach in the California Supreme Court’s decision in Dillon v. Legg. In Dillon, a mother suffered emotional distress from seeing her daughter fatally injured by a car while crossing the street. The Dillon court held that defendants have a duty to avoid infliction of emotional distress that is reasonably foreseeable, including infliction of such distress on indirect victims. However, the court established three factors to be considered in determining whether such distress was foreseeable: