Harms, Relationships, and the Contours of Liability for Emotional Distress

Abstract In Reasonableness and Risk , Greg Keating argues that the law of torts is “preoccupied” with harm—with safeguarding conditions of effective agency. In this comment, I ask whether Keating’s picture can make sense of the tort claims, like loss of consortium, that provide some measure of protection to relationships—and to marriage-like relationships, in particular. It would be awful if my life partner were seriously injured or killed—a serious setback to my interests—a harm by almost any measure. But in what sense would it impair my agency, as Keating’s account of harm seems to require? I explain the force of the question for Keating’s view and suggest an answer: Harm to one spouse can impair the other spouse’s agency, I’ll suggest, because their relationship essentially involves a shared project. A harm to one can be a harm to the other, then, insofar as it frustrates the life project they share. I will suggest, finally, that a view of this kind can help us better understand the contours of liability for emotional distress too.