Limiting Duties to Protect Against Special Types of Harm:

1. Limiting Duties to Protect Against Special Types of Harm: Emotional Harm (Intentional and Negligent Infliction)

2. Intentional Infliction of Emotional Distress (IIED) Elements: (1) Intent to cause extreme emotional distress, or recklessness (definition: conscious disregard of a high degree of probability that mental distress will follow) (2) extreme and outrageous conduct (3) resulting severe emotional distress

3. Intentional infliction: Common fact-patterns • Repeated, harassing misconduct • Abuse of power, especially where D knows of P’s vulnerability (vulnerable P and powerful D)

4. “Third party” IIED recoveries: When D directs conduct towards someone other than P Defendant who directs an “outrageous” act towards A can be liable for severe emotional distress to B if, but only if: -- B is present at the time, and -- B is a member of A’s family, OR B suffers physical (bodily) harm as a result of the emotional distress caused by D’s outrageous conduct.

5. Negligent Infliction of Emotional Distress (NIED) • Fright or shock from risks of physical harm: the original claim of NIED -- Once allowed only where D’s negligence caused physical harm (impact), which then caused emotional distress -- That rule now modified

6. NIED: “Impact” and “physical manifestation” rules: variations • D’s negligence causes “impact” (or “physical harm”) which causes emotional distress • D’s negligence causes emotional distress, which causes “physical manifestations” (or a “physical injury”) • D’s negligence causes emotional distress, with neither impact nor physical manifestations

7. NIED: when emotional harm results from injury to another • Many states do not recognize such a claim at all, unless P is in the “zone of danger” and fears for his own safety • Dillon v. Legg: multi-factor test may allow recovery by bystander. (1) P near scene; (2) suffers direct emotional impact from contemporaneous observance; and (3) close relationship between P and victim • Thing v. LaChusa: bystander must meet all special elements. (1) P present at scene, then aware that victim is injured; (2) suffers “serious” emotional distress: and (3) P closely related to victim [exclusive list]

8. NIED: the California picture California divides NIED cases into two Plaintiff categories: “bystanders” and “direct victims” • Bystanders must meet Thing v. LaChusa special elements (as well as any remaining “regular” negligence elements) to recover anything at all • Direct victims need not meet any special elements (just “regular” negligence elements) to recover • Burgess enlarges “direct” category to include Ps to whom D owes a “preexisting duty” • Non-bystanders are “direct victims” (Court of Appeal holdings -- some split in districts)

9. Emotional harm where there is no physical risk to anyone: How do courts deal with that? Washington v. Rhines (zone of danger) Heiner & Hartwig: negligent misdiagnosis Boyles v. Kerr

10. D owes P aduty to protect from emotional harm D breaches that duty (acts negligently) Actual harm (“serious” or “severe” emotional distress) Cause in fact (negligence must be an actual cause of the emotional distress) Proximate cause (“serious or severe emotional distress” must be a foreseeable type of harm; P foreseeable also) Sacco : What are the elements?

11. Neg. elements, plus P must suffer “impact” before emotional harm Neg. elements, plus P must have “physical manifestations” of emotional harm Neg. elements, and P must be in “zone of danger” (fearful for own safety) Split cases into “bystander” and “direct” and use Dillon for former Split cases into “bystander” and “direct” and use Thing for former No special rules for any plaintiff who suffers “severe” or “serious” distress (reg. neg. case); expert testimony, maybe Current NIED approaches:an imperfect summary

12. FEAR OF FUTURE HARM What if there is no “present physical injury?” (Potter) What if there is? (Hartwig)