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Editor: Christopher J. Robinette
Southwestern Law School

Thursday, April 2, 2009

NIED in the Third Restatement

Thursday's second panel covered Negligent Infliction of Emotional Distress.  Presenting were Martha Chamallas (Ohio State), Greg Keating(USC), Martin Matthews (Oxford), and Robert Rabin (Stanford).  The panel was moderated by David Levi (Duke).

1.  Rabin discussed Emotional Distress in Tort Law:  Themes of ConstraintHe noted that, given the somewhat amorphous nature of the tort, courts have constantly sought to cabin it.  They have done so by using both instrumental constraints and the reinforcement of social norms.  In the category of instrumental concerns, Rabin enumerated four, though he offered the caveatthat they overlapped.  First, the floodgates concern (leading to the "zone of danger" test).  Second, the concern over crushing liability (leading to no recovery rules in, for example, asbestos litigation and for "cancerphobia").  Third, the concern about disproportionate liability (leading to rules for bystander recovery).  And, finally, the concern over chilling effects (inspiring constitutional limits in defamation).  In terms of reinforcing social norms, Rabin noted that courts emphasize the fact everyday life can be harsh.  Recovery is limited in many cases because of the social norm that people have to withstand a certain amount of friction in their daily routines.  The line between what people are expected to tolerate and excessive incivility is illustrated by the "extreme and outrageous conduct" standard in intentional infliction of emotional distress (IIED) cases.  

Ariel Porat mentioned that he would include a contractual relationship between the parties as another limitation, and Rabin agreed with him, telling him he had already added that to his list.  Ken Simons questioned the floodgates limitation, asking whether someone pay for all of the damage they had caused.  He suggested the possibility of paying more people at lower levels of compensation.  Rabin responded that no-fault schemes were based on that premise.

2.  Chamallas presented material from her forthcoming book (The Measure of Injury:  Race, Gender, and Tort Law, co-authored by Jennifer Wriggins), specifically the chapter entitled Negligence.  Chamallas began by lauding the shift in the Restatement Third ("R3") from whether to when plaintiffs could recover for NIED.  She questioned the prioritizing of physical over emotional injury.  This hierarchy of value has a gender impact; the restrictions on emotional harm hurt women more than men because women are more likely than men to bring those claims.  Chamallas next noted that R3 invites prioritizing the contexts  in which NIED claims are brought, but does not spell out which are the favored contexts.  She offered two:  1. cases of sexual exploitation, and 2. cases involving reproductive injuries.  Chamallas argued that an analogy to constitutional law supports a favored position for these contexts.  Laws infringing on reproductive freedom triggers strict scrutiny.

3.  Keating discussed his piece Existence of Obligation and Extent of Responsibility in the Law of Negligent Infliction of Emotional DistressHe raised the issue of where NIED falls within the taxonomy of negligence.  Should NIED be regarded as a duty or a proximate cause issue?  Keating argued that NIED is a proximate cause issue because it concerns the extent of liability.  He posited that NIED cases tend to be one of two types:  1. plaintiffs who are physically uninjured, but emotionally traumatized by the negligent imposition of a risk of physical injury, or 2. plaintiffs who have preexisting relationships with the parties whose negligence inflicts emotional harm on them.  In both cases, Keating argued a duty exists independent of the prospect of emotional injury being negligently inflicted.  Thus, NIED involves the line-drawing issues typical of proximate cause cases. 

William C. Powers, Jr., who (with Mike Green) is Reporter for R3, commented that taxonomy was at the heart of the approach to R3.  He stated he and Green took a pragmatic view of the problem, and put NIED in the duty section to force courts to enumerate the policy reasons for decisions.

4.  Matthews presented Negligent Infliction of Emotional Distress:  A View of the Proposed Restatement Provisions from EnglandTo establish the relevance of the English view, Matthews noted that the law in Great Britain was similar to the R3 approach to NIED.  He voiced his approval of bright-line rules, and offered advice to improve R3.  In English law, a plaintiff must prove s/he has experienced a recognizable psychiatric illness as a result of defendant's negligence.  Matthews prefers this to R3's more malleable "serious emotional disturbance."  He did, however, prefer R3's insistence on simultaneous perception of an injury as opposed to allowing the perception in the English law's more nebulous "aftermath." 

Commentary was provided by Oscar Gray (Maryland) and Wallace Jefferson (Chief Justice, Texas Supreme Court).  Prior to the conference, Gray provided written Commentary.  Gray offered a hypothetical questioning the division of physical and emotional harms.  When combat troops return from Iraq and have fits of uncontrollable rage, he wondered, is it because of a disturbance of their "tranquility" or is it because of a physical injury to their brains?  The hypothetical led to a discussion of how neuroscience will alter our view of tort doctrines.  Ben Zipursky pursued the taxonomy issue by challenging the panelists conceptions of NIED.  Zipursky noted three different views of the interest protected by NIED:  1. rights invasions, 2. visceral impact akin to physical injuries, and 3. psychiatric illness.  He questioned whether the three views can coherently coexist.

To hear the panel, you can click here.


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