ISSUE: May the mother of a child who, although not put in peril or fear of physical impact,sustains the shock of witnessing the negligent killing of her child, recover for physical injuriescaused by such fright or shock.HOLDING: No, a plaintiff may not recover for physical injuries sustained by one as a result ofthe shock of witnessing another’s danger when he or she is out of the range of ordinaryphysical peril.RULE: In order to recover for physical injuries sustained as shock by a result of witnessinganother’s danger, the plaintiff must be in the range of ordinary physical peril. RATIONALE: The liability for injuries sustained by those outside of the zone of danger is out ofproportion to the culpability of the negligent tortfeasor and as such would put an unreasonable49
burden upon users of the highway that would have no sensible or just stopping point. It wouldbe unwise to unequivocally hold in this case that an individual outside the area of physicaldanger has a legally protected right to be free from emotional distress resulting in physicalimpairment after witnessing injury to another, even a close family member. The SCUS > signed on to this rule in Consolidated Rail Corp v. Gottshall. Restatement 3rd of Torts: Liability for physical and emotional harm (2010) incorporates thezone of danger rule in §46. §46 (b) refers to special cases involving death telegrams, handling ofcorpses and other contexts deemed especially likely to lead to emotional distress. Cours: Waube case:-Duty approach > draw the line for the zone of danger. And if you are in ZD > can experiencefright-based otherwise = chocked-based and then no recovery. -Can the eye of vigilance (Cardozo) can see the mother here? Can't see her bc what you see whenyou are driving negligently is the risk of people you can ran over. (fright-based injury > fearful foryour life). -Fright-based injury ≠ shock based. And the mother here is shocked and this EH > PH. -Why did the court abandoned the original impact test? (Mitchell v. Rochester v. infra) > arbitraryrule.-Later kind of grief (crowd; social impact)• Note: the impact and zone of danger rules in the age of toxics:In Mitchell and Waube > the rules placed natural boundaries on the exposure of D to excessiveliability.But with the coming of an era where people are more and more exposed to contact with toxicsubstances, the traditional excessive liability limiting boundaries of the impact and zone ofdanger rules are being tested. In these modern factual contexts, courts have generally held that impact is on its own notsufficient to trigger liability for ensuing emotional upset. It is not enough that there is a fear that some future physical harm will result.(b) Liability to bystanders:• Dillon v. Legg (1968): The defendant negligently struck the plaintiff’s daughter with his automobile. The plaintiffwitnesses her infant’s death and subsequently sued the defendant for emotional distress.ISSUE: Would a negligent driver who causes the death of a young child reasonably expect thatthe mother is near and would, as a result of the accident, suffer emotional trauma?
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