Emotional distress claims limited by American tort law - Albuquerque Journal

The South Fork Fishing and Hunting Club provided recreation for the elite of Pittsburgh society, back when Pittsburgh was the steel capital of the world.

In the 1880s, at the height of the first Gilded Age, the club purchased a dam and reservoir on the south fork of the Little Conemaugh River (which by New Mexico standards is anything but little), high on the western slope of the Appalachians.

Families whose names live on today in the names of major cultural institutions – the Fricks of the Frick Collection, the Carnegies of Carnegie Hall – escaped the pollution of the factories they owned by summering on the mountain lake.

The dam had been built with discharge pipes to keep rising waters from overtopping it. But at some point prior to May 31, 1889, the pipes were removed. On that day heavy rains caused the reservoir to overfill and the dam to fail.

Fourteen miles downstream was the small city of Johnstown.

An explanatory website by Casey Goldberg, hosted by Bowdoin College (which includes some startling photographs), describes what happened next: “Twenty million tons of water rushed towards the city, forming a thirty-five-foot tall wall of water. A telephone operator … explained that the wave looked like ‘a mountain coming.'”

More than 2,200 people were killed in the flood. Buildings that weren’t swept away burned in fires fueled by ruptured gas lines.

The disaster approached the scale of 9/11, and there was never any serious doubt about who was responsible. But, as readers of David McCullough’s book “The Johnstown Flood” know, the final chapters of the saga provide their own shock.

All legal attempts to hold the club and its officers responsible for the disaster failed. Tort law in America had not yet developed to the point of imposing a legal duty on property owners – well, super-rich property owners, at least – to pay compensation for those they killed and whose property they destroyed through carelessness.

The lawmakers of the day, in both the judicial and legislative branches, placed a higher priority on keeping tort liability within tight limits than on providing just compensation to injured persons.

Today, in any remotely similar scenario, those directly injured by the plutocrats’ negligence would almost certainly prevail in their tort lawsuits. But that doesn’t mean our legal system has done away with arbitrary limits on tort liability. We’ve just moved the fence line, that’s all.

Consider those who survive a disaster without physical injury but suffer PTSD from the scenes they witness. Goldberg’s website reports that some Johnstown residents saved themselves from the flood only “to watch their friends and family perish.”

After all we’ve learned about PTSD among military veterans, no one can doubt the intensity of their suffering. But it wasn’t until 1968 that American courts first gave people in their situation a right to recover for their trauma.

That year, in a landmark ruling, the California Supreme Court held that a mother who saw her daughter killed by a careless driver on a residential street could maintain a lawsuit for what came to be known as negligent infliction of emotional distress, or NIED.

But just as soon as courts recognized a bystander’s right to recover for the trauma of witnessing another person killed, they erected new fences to keep the new tort within strict limits.

After all, complete strangers, seeing a little girl struck by a speeding car, would also be shocked and upset. Should they be allowed to recover, the same as the girl’s mother?

In New Mexico, our Supreme Court answered that question with a firm “no.” Here, bystanders can recover damages for NIED only if they are family members.

Our courts justify that inflexible requirement by asserting that NIED is “a tort against the integrity of the family unit.” But that verbal formula doesn’t really explain what the courts are doing.

To be eligible to recover, an individual family member must perceive the disaster as it occurs. The individual must suffer severe emotional shock as a result. Compensation, if it is paid, goes to the individual, not the family. NIED is a tort against the individual.

In practical terms, our courts are simply continuing the long judicial tradition of placing fences around tort liability. Our judges still resist full implementation of the principle that careless people should be held responsible for the harms they cause.

New Mexico recently made international news with a tragic workplace death. I don’t think anyone questions the psychological harm that could result from witnessing a co-worker die as the result of someone else’s negligence.

But in the absence of a family relationship (or a change in the law), such negligently-inflicted emotional distress doesn’t qualify as NIED.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at [email protected].

source: https://www.abqjournal.com/2453675/emotional-distress-claims-limited-by-american-tort-law.html

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