intentional infliction of emotional distress and negligent infliction of emotional distress and zone of danger and bystander rule and waube

As is widely known, you could only recover at common law, in a tort action, for physical harm or damage suffered by you or your property. Recovery for mental injuries or distress, especially from negligent acts, would have not have been possible. The fear was (and still is, to an extent) that if courts chose to compensate people for vaguely defined or hard-to-demonstrate mental distresses, the courts would become besieged with claimants who wanted compensation for everything ranging from bruised egos to unrequited love. At least physical injury or property damage, it was believed, could be more easily quantifiable. Courts could develop rules for replacement of objects or costs of medical care that would put the plaintiff back into the "same" position as before the injury. That was, and still largely is, the theory of the law.

But just as the twentieth century saw the discovery of the inner life or the subconscious in psychology, so law also discovered ways to begin to recognize ways in which mental distress ought to be compensated. One of the first cases which allowed a recovery for mental distress was a CA case: Sloane v. Southern Cal. Ry Co., 44 P 320 (Cal. 1896). In this case Mrs. Sloane bought a rail ticket from North Pomona to San Diego, but had to transfer trains in San Bernardino. The conductor in the first leg of the journey, however, had taken her ticket, giving her no transfer, and the conductor in the second train kicked her off the train, leaving her abandoned in Riverside, far from home with no money. She eventually made it safely to the home of a relative for the night. Though the railroad wanted to argue that its liability extended no further than the costs of the ticket to San Diego, plaintiff argued, successfully, that she ought to be compensated for mental anguish because of the undignified treatment she received and the subsequent dangers to which she was exposed. She developed physical symptoms of her distress--symptoms that she thought had been previously cured by medical treatment. Thus was born the concept of "pain and suffering" to accompany a claim for physical debility which itself resulted from undignified treatment.

Emotional Distress and Physical "Manifestations"

And this was how the law developed for the first few decades of the twentieth century. If you wanted to establish a claim for emotional distress, you had to tie it closely to some kind of physical symptom or, failing that, to an "impact" you suffered that led to the mental distress. That is, a claim for emotional distress or damages was "parasitic"--it had to have as its "host" a physical cause.

One could see how such a rule not only was seemingly reasonable but was both under-and over-inclusive. It was reasonable because it eliminated lots of potentially frivolous claims for compensation. But it was underinclusive in that it eliminated some who might have been terribly afflicted in mind simply because they couldn't demonstrate a physical manifestation of the distress. Likewise, it was overinclusive because it would likely compensate someone who could argue that there was an "impact" of some sort, even if a slight impact (e.g., an auto "brushing" the person), which allegedly led to all kinds of hellish emotional distress even while, in fact, this mental distress was manufactured.

Developing Non-Physical Impact Tests

In the 1920s-1940s, the torts of intentional infliction and negligent infliction of emotional distress developed. The former, codified most conveniently in Sec. 46 of the Restatement (Second) of Torts, eliminated any requirement that a physical impact or manifestation was necessary for recovery for emotional distress to be possible. "Safeguards," however, related to the extreme nature of the emotional distress visited on a person. Deliberate insults, incivilities or even outrageously impolite statements inflicted on a plaintiff did not mean that a plaintiff could recover. The treatment had to be so far beyond the bounds of reasonable conduct that the conscience was shocked.

Non-impact or physical manifestation tests were also developed in the new tort of negligent infliction of emotional distress. In that connection, the "zone of danger" rule developed. Even though a person might not be directly injured by the negligent act of another, if s/he was in promiximity to the danger and himself was endangered by the activity, recovery was possible. So, a person might recover if an auto crashed into a crowd, and the person, fearing for her life, leapt to safety, but developed severe mental symptoms as a result. If a person, however, had no possibility of being hurt there would be no recovery. This "zone of danger" rule stood behind a decision of the WI Supreme Court in 1935 denying a mother recovery of emotional damages when she witnessed her child being hit by a car--because the mother was inside the house at the time and was never in any personal danger of being hit by the car. Waube v. Warrington, 258 NW 497 (WI 1935).

But CA again led the way in developing the so-called "bystander rule," which intended to do away with the Waube limitation, in a 1968 case. Dillon v. Legg, 441 P2d 912 (Cal 1968). In this case the court recognized the patent absurdity of awarding recovery to one child (not hit by a car; while the other was struck), while not awarding emotional recovery for the mother who trailed the two children a few yards back (because she was supposedly out of the "zone of danger").

Conclusion

Thus, by the 1970s, the contours of the current law of recovery for emotional distress were laid out. There didn't need to be a physical impact or manifestation, though this would be helpful. If you were a bystander, you better be sure that you are standing real close to the action and that you be related to the person who suffered a physical injury. If you were within a zone of danger, you could also be compensated. But claims for pure emotional damage for someone else's conduct when you were not related to them or where there was no physical damage suffered from anyone, would not be compensated.

With this background in mind, I would like to turn to what I consider a far more prevalent emotional reality of people today--mental injury suffered not because you have witnessed something horrible where a loved one is injured or killed, but because things have been concealed from you over the years. You are hurt because of information not revealed to you. Let's talk about that for a bit and see how it relates to this framework.

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