A Stitch in Haste

A while back I asked whether, in the case of the West Virginia mining tragedy, "wrongful good news" could constitute the tort of negligent infliction of emotional distress. I answered in the affirmative.

Well it turns out that a law professor has asked the same question and reached the same conclusion:

An influential modern articulation of the elements of the tort of negligent infliction of emotional distress, as asserted by bystanders, comes from New Jersey, in a case called Portee v. Jaffee [84 N.J. 88 (1980)]:

The knowledge that loved ones are safe and whole is the deepest wellspring of emotional welfare ... No loss is greater than the loss of a loved one, and no tragedy is more wrenching than the helpless apprehension of the death or serious injury of one whose very existence is a precious treasure. The law should find more than pity for one who is stricken by seeing that a loved one has been critically injured or killed.

But despite its sympathy for distressed victims, the New Jersey court did set some limits: It made sure the relationship between the claimant and the source of the emotional distress was sufficiently close: "It is the presence of deep, intimate, familial ties between the plaintiff and the physically injured person that makes the harm to emotional tranquility so serious and compelling." Indeed, the court explicitly held that a close familial relationship is necessary for a claim of emotional distress for being a "bystander," witnessing a death or injury of a loved one. Third cousins once removed, it seems, need not apply.

There's actually nothing new or controversial in requiring that there be a close familial relationship -- it's just a variation on the longstanding tort doctrine of proximate cause. (Sidebar: The ability of gays to sue for emotional distress based on harm to a partner is a whole other blogpost.)

Of course, a New Jersey case is not binding on West Virginia courts. But Portee v. Jaffee is an influential case, read by most law school students at some point. In any event, Professor Leib surveys the current case law in West Virginia and concludes that it is amenable to this kind of emotional distress case, for those who are interested.