negligent infliction of emotional distress and job and oedipus and jocasta

The previous essay laid out the rather parsimonious approach of courts to recognizing the legitimacy of emotional distress claims. Unless you can show some kind of physical harm suffered through the emotional experience, your road to recovery will be rocky. This is especially the case for recovery for negligent infliction of emotional distress. Courts have been quite reluctant to expand recovery for this tort beyond the "zone of danger" category, even though some have also used a "bystander" rationale. The burden of this essay is to think further about the nature of emotional damage that is done to us as humans and ask whether some recovery for the damages would be proper.

"We Didn't Want to Tell You..."

Those born in two decades after WWII grew up in a different environment than exists in our culture today. The spirit of that time was to hide information from people, even information that might have been vital or useful for them to have. I recall from my own experience that I worked with the school psychologist during 4th grade for some time. I think I did this because I presented behavioral problems, and they weren't quite sure what to do with me. But I was never told the results of the "tests" administered or, for that matter, any kind of "IQ" scores I took while growing up. Additionally, it was routine for patients not to know the extent of their illnesses, nor for loved ones (and especially children) to be brought into some of the mysteries of disease and death.

Hiding important information from people, whether motivated by concerns for a person's level of understanding or maturity, is more than just unfortunate. It deprives the person of vital knowledge, knowledge that helps him/her paint the picture of life. Though the withholding of this kind of information might be seen as a deliberate act, in legal categories it probably would be a negligent act--an act that neglects to inform a person of important facts about them because of a suspicion that it might not be understood by the person or that it might cause harm.

But what we don't know or learn about ourselves can hurt us, and often does hurt us. We spend thousands of dollars trying to understand the nature of certain patterns of our lives which could easily have been explained if someone from our past who knew us would tell us why we are reacting in such a way to these stimuli. Admittedly, sometimes the past is not so easy to explain, and our conduct today cannot easily be linked to specific events in the past. But, often it can. And those who know things about us which are important "information" for us ought to be under a legal duty to tell us whatever they know. A breach of that duty would be actionable at law.

Literary Thoughts

One of the most chilling lines in literature is Jocasta's cautionary shriek to Oedipus, "O Oedipus, God help you! God keep you from the knowledge of who you are!" (Oedipus Rex, line 1069). Through the stories of the messenger and the old shepherd, Jocasta has learned the horrid truth of her husband/son, though the truth has not yet dawned on Oedipus. When he fully learns it, which he will do shortly after her warning, and when he "sees" the meaning of his actions, he blinds himself. The blind seer Teiresias has "seen" things much more clearly than the seeing and vigilant Oedipus. But neither Teiresias nor the shepherd comes forward apart from Oedipus' compulsion to tell the truth of what he knows. Vague feelings, worrisome childhood talk about illegitimacy, fear of fulfilling prophecy--all those have been the staple of Oedipus' earlier life. But now he knows the truth. Some might take Oedipus' story as justification of why it is proper to conceal the truth about someone from them, lest they go crazy with pain and guilt when discovering it. I read it differently--the extreme pain and shame Oedipus experienced at the play's end is partly to be explained by his reaction to the efforts to conceal things from him, to hide the truth from him.

The Book of Job can't be appreciated without realizing that it is a story of concealment. God and The Satan have a deal whereby the latter can injure Job with impunity and cause his children to be killed. All of this is a sort of test to see if Job's love for God remains steady, despite the dislocations in his life. And, I must hasten to add, none of this heavenly plan is ever revealed to Job. He simply learns the news of the house falling on his children from one of his servants. He knows something must be amiss, because he knows that nothing in his past conduct or in his understanding of God would permit this much suffering for one who was comparatively righteous. Job's anger and mental anguish throughout the first 31 chapters of the book are explicable primarily on the theory that God has concealed essential facts from Job.

Conclusion

Let us therefore expand the cause of action for negligent infliction of emotional distress to those situations where a person in authority, whether parent or school or religious authority or psychologist, knows important truths about you and doesn't reveal them to you. We know we are more deeply-gashed through emotional than physical scars. Let law finally catch up to that reality.

But, you say, you are concerned with the resultant flood of litigation? The next thoughts address that question.

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