Is "Wrongful Good News" a Tort?
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The only time I ever watch cable news is when I'm traveling -- like now. And the channel offerings were slim, so I was watching quite a bit of CNN and Fox (actually I prefer MSNBC, but it wasn't available here).
And yet I still can't figure out whether those West Virginia miners are alive or dead.
It appears that the families of the trapped miners were initially told, based on air sampling via a drill hole that indicated lethal levels of carbon monoxide and the lack of any signs of life, that the miners were very likely dead.
Then they were told that this was in fact a "miscommunication" and that all but one of the trapped miners were in fact found alive. That was the state of the situation when I went to bed last night.
Then when I wake up this morning, the MSM is reporting that -- oh my -- the original miscommunication was itself the miscommunication and that yes indeed all but one of the miners was dead.
Such is the stuff of mythic Greek tragedies (or Monty Python sketches).
We all of course mourn for the dead miners and sympathize with their families, and I hate to sound like an ambulance chaser (hearse chaser?), but this horrific fact pattern presents a fascinating legal question:
Can the families sue for being told, inaccurately, that the miners were in fact alive?
I think the answer might be "yes."
Most people know that there is this vague legal concept called "emotional distress." Many think it's a category of damages, like medical bills and "pain & suffering." But in fact infliction of emotional distress ("IED") is a tort, a cause of action in its own right, like battery or defamation.
There are two categories of IED: intentional infliction of emotional distress and negligent infliction of emotional distress ("NIED"). We are obviously dealing here with the latter -- someone, somewhere in the communicative chain (i.e., either the rescue workers, the mining company or the MSM), negligently "got it backwards" and told the families, and us, that all but one of the miners were alive when in fact they were dead.
If memory serves, under the common law there are three categories of prima facie (i.e., automatic) NIED that do not require an actual physical injury to recover damages:
1. Negligently mishandling or losing a corpse.
2. Negligently telling someone they have a fatal disease.
3. Negligently telling someone that a loved one has died.
So the question becomes: if #3 is a prima facie tort, then is the inverse -- negligently telling someone that a loved one has survived -- also a prima facie tort?
Compare these two progressions:
1. "They're probably dead...they're almost certainly dead...yes they are in fact dead."
2. "They're probably dead...they're almost certainly dead...nope they're alive...um, sorry, they are in fact dead."
I think progression #2 is certainly more emotionally distressful than progression #1. And there was clearly negligence somewhere, and there is the clear common law analogy of NIED.
So I conclude, in an admittedly cold, clinical manner, that "wrongful good news" is in fact an actional tort under the category of NIED.
That's my ruling -- any dissents?
And yet I still can't figure out whether those West Virginia miners are alive or dead.
It appears that the families of the trapped miners were initially told, based on air sampling via a drill hole that indicated lethal levels of carbon monoxide and the lack of any signs of life, that the miners were very likely dead.
Then they were told that this was in fact a "miscommunication" and that all but one of the trapped miners were in fact found alive. That was the state of the situation when I went to bed last night.
Then when I wake up this morning, the MSM is reporting that -- oh my -- the original miscommunication was itself the miscommunication and that yes indeed all but one of the miners was dead.
Such is the stuff of mythic Greek tragedies (or Monty Python sketches).
We all of course mourn for the dead miners and sympathize with their families, and I hate to sound like an ambulance chaser (hearse chaser?), but this horrific fact pattern presents a fascinating legal question:
Can the families sue for being told, inaccurately, that the miners were in fact alive?
I think the answer might be "yes."
Most people know that there is this vague legal concept called "emotional distress." Many think it's a category of damages, like medical bills and "pain & suffering." But in fact infliction of emotional distress ("IED") is a tort, a cause of action in its own right, like battery or defamation.
There are two categories of IED: intentional infliction of emotional distress and negligent infliction of emotional distress ("NIED"). We are obviously dealing here with the latter -- someone, somewhere in the communicative chain (i.e., either the rescue workers, the mining company or the MSM), negligently "got it backwards" and told the families, and us, that all but one of the miners were alive when in fact they were dead.
If memory serves, under the common law there are three categories of prima facie (i.e., automatic) NIED that do not require an actual physical injury to recover damages:
1. Negligently mishandling or losing a corpse.
2. Negligently telling someone they have a fatal disease.
3. Negligently telling someone that a loved one has died.
So the question becomes: if #3 is a prima facie tort, then is the inverse -- negligently telling someone that a loved one has survived -- also a prima facie tort?
Compare these two progressions:
1. "They're probably dead...they're almost certainly dead...yes they are in fact dead."
2. "They're probably dead...they're almost certainly dead...nope they're alive...um, sorry, they are in fact dead."
I think progression #2 is certainly more emotionally distressful than progression #1. And there was clearly negligence somewhere, and there is the clear common law analogy of NIED.
So I conclude, in an admittedly cold, clinical manner, that "wrongful good news" is in fact an actional tort under the category of NIED.
That's my ruling -- any dissents?
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Posted by Kip on
4 January 2006
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