AN EXPANDING LEGAL DUTY: THE RECOVERY OF DAMAGES FOR MENTAL ANGUISH BY THOSE OBSERVING TORTIOUS ACTIVITY

AuthorMichael J. Phillips
DOIhttp://doi.org/10.1111/j.1744-1714.1981.tb01205.x
Publication Date01 Jun 1981
214
I
Vol.
19
I
American Business Law
Journal
gesting that the discretionary balancing
of
competing group claims
is
likely to be a theme
of
increasing relevance
in
the short run,
the
Burger Court's obfuscation in the area
of
reverse racial discrimination
may, despite an appearance of intellectual incoherence, be an entirely
rational response to the troubled context
in
which
it
must now act.
Indiana University, Bloomington
MICHAEL
J.
PHILLIPS
AN EXPANDING LEGAL DUTY: THE RECOVERY
OF
DAMAGES
FOR
MENTAL ANGUISH BY THOSE
OBSERVING TORTIOUS ACTIVITY
INTRODUCTION
In
1968
the Supreme Court
of
California decided
Dillon
v.
Legg,'
a
case that dealt with a most difficult issue
of
tort law. The court allowed
a plaintiff who had observed a relative killed by
the
negligence
of
another to recover
for
mental anguish.
The court found that
the
prox-
imity
of
a mother to the accident which took the life of her child placed
her within an
emotional impact zone
though she had no fear
for
her
own bodily safety. Such a finding by the court broke through the duty'
barrier created by a
physical impact zone
recognized in earlier cases.
Such a holding by the court, while in the minority,'
is
favored by a
'
68
Cal. Rptr.
72. 441
P.2d
912.
'
"If no hazard was apparent to
the
eye
of
ordinary vigilance, an act innocent and
harmless, at least to outward seeming, with reference to her, did not take itself the quali-
ty
of
a tort because it happened to be a wrong, though apparently not one involving the
risk of bodily insecurity, with reference to someone else. In every instance, before
negligence can be predicted of a given act, back
of
the act must be sought and found a duty
to
the
individual complaining,
the
observance
of
which would have averted
or
avoided the
injury." Palsgraf v. Long Island R. Co..
248
N.Y.
339. 162
N.E.
99
(1928).
By
1970
only three cases in the United States favored recovery
for
mental anguish in
the absence
of
physical impact.
See
Lantry.
Propositioning
the
Courts.
8
AM.
Bus.
L.J.
212 (1970)
(case comment). One
of
the first cases to be decided in favor
of
a plaintiff who
suffered mental anguish by observing tortious activity was an Alabama decision, Spear-
man
v.
McCrary,
4
Ala.
473.68
So.
927 (1912).
The law in Alabama changed in
1978
when
the
court had its first opportunity
to
rule
on this issue since the
1912
decision. In the case
of
Slovensky v. Birmingham News
Co..
Inc..
358
So.
2d
474
(Ala.
1978).
the court stated
that
the law
of
Alabama allowed no cause
of
action
for
mental anguish suffered because
of
a wrong to another.
From
1912
to
1968,
some decisions in the state of New York held
for
and others held
against the recovery
of
damages
for
mental anguish by those observing tortious activity.
For:
Cohn v. Ansonia Realty Co..
162
App. Div.
791, 148
N.Y.S.
39 (1914);
Haight v.

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