Theres no toxic harm where its more likely than not

there’s no toxic harm where it’s “more likely than not”
--One could argue that the courts have it backwards: Stronger case for emotional distress
recovery is the prolonged fears stemming from toxic exposure vs. a “near miss case”
such as an auto crash where one goes on with their life the next day
--CA and a few others exclude pain and suffering and emotional distress recovery in a
wrongful death suit
HIV Cases : (Note 6) 2 ways of examining
1. Negligent exposure to infected needle
2. Negligent diagnosis; pretty close to “zone of danger” type
scenario: fear of imminent physical harm; also, a Third
Category of Wrongful Telegram cases.
18

Gammon v. Osteopathic Hospital of Maine, Inc.
Facts: Man thinks he’s getting back his deceased father’s belongings, but instead gets a
bag with an arm and a leg, literally.
Principle: If there’s foreseeability that something will case serious harm, then there
might be recovery. But it’s not a broad-based foreseeability standard : “it must be some
cause that a reasonably onstituted person would have suffered….”
--In Bryan R. v. Watchtower Bible , Maine Supreme Court tries to reign in
Gammon , and claims (falsely) that there was a “relationship” between hospital and Π
(which was not in the original holding)—they are afraid that what they came up with was
too broad when applied to liability against a church for sexual abuse of a priest.
Portee v. Jaffee
Facts: Woman watched her seven-year-old son die an excrutiatingly painful, slow death
over four-and-a-half hours in negligently maintained elevator in New Jersey.
Principle: Recovery for unharmed bystanders outside of the zone of danger when:
1. Must actually perceive it (not a “proximity test”)
2. Must have close relation with injured party
3. Must either be death or serious injury
--In NY, mother probably couldn’t have recovered because she was not in the zone of
danger
-- Dillon v. Legg (big CA precdent; p. 287)—Three part test for determining whether
compensable damagers were “foreseeable”
1) Proximity
2) Direct sensory shock (not learning later)
3) Closely related Π and victim
--Are these factors better htan no recovery at all of any kind?