A Stitch in Haste

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?

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.

"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."
--Portee v. Jaffee, 417 A.2d 521 (N.J., 1980) (landmark emotional distress case)

When we invoke the famous judicial quote that "children do not shed their rights at the schoolhouse gate," we generally mean their constitutional rights — freedom of speech, freedom of and from religion, freedom from unreasonable searches, etc.

But we should also step back every so often and recall that there are other rights, more basic rights, that schoolchildren, like adults, maintain besides "higher" constitutional rights. The right not to be physically assaulted by a teacher, for example, or the right not be sexually molested by a principal.

Surely that must extend to the right not to be maliciously traumatized:

On a Monday morning last month, [California] highway patrol officers visited 20 classrooms at El Camino High School to announce some horrible news: Several students had been killed in car wrecks over the weekend.

Classmates wept. Some became hysterical.

A few hours and many tears later, though, the pain turned to fury when the teenagers learned that it was all a hoax, a scared-straight exercise designed by school officials to dramatize the consequences of drinking and driving.
...
"They were traumatized, but we wanted them to be traumatized," said guidance counselor Lori Tauber, who helped organize the shocking exercise and got dozens of students to participate.

Could you imagine if, instead of the students, this "exercise" were performed on their parents — with the highway patrol ringing doorbells at 3am to "inform" them that their children had been killed in DUI accidents, only to disclose later that no, it was all just a hoax meant to inform them of the importance of talking to their children about drinking and driving?

From a legal standpoint, there is no legitimate difference.

I can't speak to the specifics of California law, but under the common law even negligently misinforming someone that a loved one has died can be an actionable "emotional distress" tort. Intentionally doing so would unarguably also warrant liability — including punitive damages. See generally, Restatement (Second) of Torts, Section 46.

And let's keep in mind that "I meant well" is never a defense to anything. The single best "good deed" a moron can perform is to accept the fact that he is indeed a moron, and restrict his "urge to act" accordingly.

Stepping back from tort law: How do hopeless reprobates like this disturbed, masochistic guidance counselor and her co-conspirator teachers: (a) get on public school faculties in the first place, and (b) get free rein to psychologically experiment on students without (presumably — the article is unclear) any authorization or supervision from senior administrators (or, for that matter, the parents — who probably could not give valid consent anyway)?

And, as I often ask whenever local hack politicians and bureaucrats go off-leash: aren't there any lawyers on the public payroll, who could be consulted as to the potential blow-back (in terms of liability or unconstitutionality) from "innovative" programs that, golly gee, seemed like such a smart idea at the time?

In any event, it's quite — well, "distressing" — to see the schoolhouse gate turned into the asylum cell.

(Via Freespace.)

For those who were righteously indignant after reading my recent post about an incident involving some California educrats and law enforcement officials maliciously tormenting students by falsely informing them that their classmates had been killed in DUI accidents ("we want them to be traumatized"), may I offer you a denouement?

An unsuspecting mother was accused by hospital staff taking part in a security exercise of stealing a baby from a ward as she left the building with her new daughter.

Clare Bowker, 37, was confronted by staff as she got into her car outside Good Hope Hospital in Sutton Coldfield, West Midlands [U.K.]. She was asked to accompany them to the maternity unit with Hannah, her seven-week-old baby, and her other daughter Holly, then four, where she was told a baby had been snatched. Mrs Bowker was questioned by police and her bag searched to verify her identity.
...
A distressed Mrs Bowker was allowed to leave the hospital after 40 minutes, still believing the situation was real.
...
The Good Hope Hospital Trust has agreed to pay her undisclosed compensation, believed to be a five-figure sum, to cover her suffering and loss of earnings.

It would tempting to simply observe, without elaboration, that this was a British socialized medicine facility and be done with it. But correlation does not imply causation. It's also not clear why the December 2005 incident is only being reported now. One should also note that the hospital in question is now managed by a different NHS trust that insists it was simply a case of mistaken identity (i.e., they thought the mother was a willing participant in the exercise). As if the difference between "intentional" and "negligent" were equivalent to the difference between "reasonable" and "outrageous."

Meanwhile, and more akin to the DUI hoax: Is it fair to the staff (the target of the ruse) to stage such exercises, even when executed as planned (i.e., without cases of mistaken identity)? When my employer runs a fire drill, we're told it's a fire drill, not a fire. Why traumatize the staff by lying about a baby-snatching -- is the added panic-induced adrenaline (not to mention tears) somehow helpful?

(And does the expression "boy who cried wolf" mean anything to these bureaucrats?)

One tangential observation that I also take away from these incidents is the fallacy that local decision-making tends to be better. Utter nonsense. Local authorities are far more likely to make decisions in a vacuum and to be staffed with incompetents (because the less-incompetent have moved on to higher positions).

Moreover, the smaller the group, the easier it becomes for a potentially tyrannical majority to arise within the group (e.g., it is far easier for a theocrat to insist that "this is a Christian town" than "this is a Christian nation"). Better for the sheep to be a minority in the zoo generally than in the wolf den specifically.

In any case, let's hope that such incidents of idiocy remain isolated and newsworthy rather than business as usual.

(Via Socialized Medicine.)