Duty, Foreseeability, and the Negligent Infliction of Mental Distress

Under early common law if the act of a person gave rise to an action at law, he would be liable for resulting damages regardless of fault. A person acted at his peril. The limitation on liability, if any, lay not with a concept of duty but with a medieval sort of proximate cause. “There is little trace of any notion of. . . an obligation to any one individual, as essential to the tort. The defendant's obligation to behave properly apparently was owed to all the world.” With the merging of the common law actions of trespass and trespass on the case and the consequent development of negligence, new independent bases of liability sprang forth. The concept of duty has taken form "as a matter of some specific relation between. . . plaintiff and . . . defendant, without which there could be no liability.” Articulating this specific relation has not been easy, as the tort of negligent infliction of mental distress illustrates. The recognition of the negligent infliction of mental distress as a separate basis of liability has produced disagreement over when a plaintiff may recover. The "impact" rule, once the majority view, remains in only a few jurisdictions. Some courts have attenuated the requirement of a physical impact by demanding only that the plaintiff suffer physical injury contemporaneously with the negligent act. Other courts merely require that the plaintiff be within the "zone of danger" of physical injury in order to recover. Most courts now employ general negligence standards with major emphasis on "foreseeability" in allowing recovery for negligent infliction of emotional distress except in the bystander cases. This Comment will trace the development of the law of negligently inflicted mental distress, analyze the foreseeability test in light of its restrictive effect on other considerations of duty, and propose greater judicial flexibility so that the courts might address individual circumstances in a just and equitable manner.