In Payton v. Abbott Labs, the Massachusetts Supreme Judicial Court held that no cause of action exists for negligently inflicted emotional distress absent physical harm. The author analyzes Payton in relation to the historical development of mental and emotional distress in the law of torts. The author argues that the physical harm requirement is arbitrary and unreasonable and that it often precludes the litigation of serious claims.
“If the plaintiff is to recover every time that her feelings are hurt, we should all be in court twice a week.”
DES SPAWNS ADDITIONAL CLAIMS
DES and Emotional Distress: Payton v. Abbott Labs, University of Miami Law Review, 11-1-1982.
Diethylstilbestrol (DES) first appeared on the market as a miscarriage preventative in 1947, and until 1971, physicians commonly prescribed the drug for millions of pregnant women. In 1971, medical studies identified DES as a possible cause of clearcell adenocarcinoma, a fast spreading and often fatal form of cancer. This disease has attacked the reproductive organs of many women whose mothers ingested DES. Research also linked DES to adenosis, abnormal vaginal and cervical growths commonly found in DES daughters.
Many women exposed to DES before birth have filed suits against the drug companies that produced the synthetic hormone. Those plaintiffs sought recovery for abnormalities of their reproductive organs or clear-cell adenocarcinoma – physical conditions which the plaintiffs alleged were the result of their mothers’ ingestion of DES. Brenda Payton, representing a class of approximately 4,000 women, claimed no physical harm as a result of her exposure to DES but alleged that she is “anxious and emotionally upset” over the possibility of developing clear-cell adenocarcinoma in the future. She brought suit in federal district court in Massachusetts against Abbott Labs and five other DES manufacturers. The district court, finding no controlling precedent, certified four questions of law to the Massachusetts Supreme Judicial Court. The first question posed’ was whether Massachusetts recognized a right of action for negligently inflicted emotional distress absent any evidence of physical harm. The supreme judicial court responded in the negative, holding that even when emotional distress results from an increased statistical likelihood of contracting serious disease in the future, no cause of action in negligence exists absent any evidence of physical harm.
Payton dealt with an issue that has troubled the judiciary for many years: how to deal with claims for damages for emotional distress. The courts have recognized that mental or emotional distress can be both real and serious in some instances, while trivial, evanescent, feigned, or imagined in others. The various methods of treating these claims represent judicial attempts to separate genuine claims from those that are fictitious.
THE IMPACT RULE
The impact rule was the first attempt at making the desired distinction. Under this rule, there could be no recovery for negligently inflicted emotional distress unless a qualifying physical injury or physical impact accompanied the distress.
The leading cases on the impact rule demonstrate its mechanical nature. For example, in Spade v. Lynn & Boston Railroad Co. a train conductor threatened to throw a drunken passenger off a crowded commuter car. Even though the plaintiff, after watching the fight, suffered serious bodily harm as a result of her nervous shock, the court refused to grant recovery without a contemporaneously inflicted “injury to the person from without.” An equally harsh result was reached in Mitchell v. Rochester Railway. There, the plaintiff was waiting to board the defendant’s horsedrawn trolley. As the trolley approached, the driver negligently turned so close to the plaintiff that she was trapped between the horses’ heads when the team stopped. Although she was not touched, the plaintiff was so frightened that she fainted and suffered a miscarriage. The court denied relief.
To overcome the harsh results of cases such as Spade and Mitchell, the courts were sometimes willing to stretch the boundaries of the term “impact” to include even the most trivial forms of contact. In Zelinski v. Chimics the plaintiff was involved in a minor automobile accident. Although there was no bodily harm, the court held that the “jostling” of the plaintiff in the automobile was a “physical impact” and allowed recovery for the emotional distress. Similarly, in Kenney v. Wong Len the plaintiff, a customer at defendant’s restaurant, ate some roast chicken dressing that contained a dead mouse. Discovery of the mouse made the plaintiff ill and a nervous shock resulted. The court granted recovery; a mouse hair had touched the roof of the plaintiff’s mouth.
Decisions under the impact rule were arbitrary and produced harsh and often anomalous results. While courts sometimes granted an overly generous award based on the most trivial contact, serious emotional distress and the resulting physical harm frequently went uncompensated because the negligent act that caused the emotional distress failed to produce any impact. For example, in Bosley v. Andrews2′ the plaintiff became physically incapacitated after her neighbor’s 1500-pound Hereford bull chased her around her yard. Fortunately, she was saved from a leadenfooted toreador’s end when her dog diverted the bull. Nevertheless, the plaintiff was terrified and collapsed, suffering a heart attack. The court refused to grant relief since there was no physical contact. Similarly, in Sullivan v. H.P. Hood & Sons, Inc. the court denied recovery for severe emotional shock suffered after drinking milk from a container in which the plaintiff discovered a dead mouse. The court reasoned that the plaintiff was not harmed physically by ingesting the milk containing the “fecal matter of the mouse;” she was harmed solely as a result of her mental disturbance at seeing the mouse in her milk. Although the plaintiff’s mental distress was arguably real and serious, this court, unlike the court in Kenney v. Wong Len, did not strain to find impact.
Inconsistent results such as Sullivan and Kenney led to general dissatisfaction with the impact rule. Even courts that had staunchly supported the impact rule eventually abandoned it. Today, only Florida maintains a tenuous hold on this outdated doctrine. In place of the impact rule, courts have adopted more liberal theories of recovery. Some courts embraced the “zone of danger” test; others applied general negligence concepts, requiring only that the foreseeable plaintiff suffer physical harm as a result of the negligently inflicted emotional distress.
ZONE OF DANGER RULE
The zone of danger test is now the majority viewpoint. This rule disregards the requirement of physical impact and instead demands that the plaintiff be within the physical zone of danger created by the defendant’s negligent act. A plaintiff who has been subjected to the risk of bodily injury and who, as a direct result, suffers emotional distress has a cause of action.
Two cases illustrate the parameters of this rule. In Whetham v. Bismarck Hospitals the plaintiff sought recovery for severe emotional distress after witnessing a hospital employee negligently drop her newborn baby. The court denied relief, holding that the plaintiff was never physically threatened by the defendant’s negligent act. The court reasoned that the defendant owed no duty to those outside the range of physical peril. A contrary result was reached in Niederman v. Brodsky. In that case, the plaintiff suffered a heart attack after narrowly escaping the destructive path cut by the defendant’s negligently driven car. Because he alleged that he was within the zone of danger and feared for his own safety, the court held that the plaintiff had stated a prima facie cause of action for the nervous shock and resulting harm he suffered. Courts following the zone of danger rule explain that it produces reasonable results while still providing an additional element of proof that the claim for mental distress is real. The imposition of liability is regarded as justifiable because the defendant created a foreseeable risk of bodily injury to those within the zone of danger. That the plaintiff’s bodily harm results from mental distress, and not from impact, does not preclude liability. Some courts, however, view the rule as inadequate because a strict application of the doctrine would prevent recovery in cases when recovery should not be denied. These courts would extend the rule to allow recovery regardless of whether the plaintiff was in the zone of danger.
NEITHER PHYSICAL IMPACT NOR ZONE OF DANGER
The first American court to allow another basis for recovery was the Texas Supreme Court in Hill v. Kimball. There, the court repudiated the requirement of impact and regarded the physical consequences of the mental distress as a sufficient guarantee that the claim was real. In Hill the plaintiff alleged that she sustained emotional distress leading to a miscarriage after she witnessed her landlord violently assault two men in her yard. The court stated: “It may be [very] difficult to prove the connection between the alleged cause and the injury, but if it be proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be had.”
This approach treats the claim of negligent infliction of mental distress from an ordinary negligence standpoint without the zone of danger limitation. It recognizes a duty to avoid a foreseeable, unreasonable risk of emotional harm to another. If breach of this duty proximately causes bodily harm, the defendant is liable. Courts adhering to this rule do not require a plaintiff to prove direct physical impact, nor do they require that the plaintiff be within the physical zone of danger. Instead, these courts hold that a plaintiff states a cause of action when he alleges that the negligently inflicted mental distress was foreseeable and that it resulted in bodily harm.
Massachusetts was one of the first jurisdictions to reject the zone of danger rule in favor of this more liberal approach. In Dziokonski v. Babineau the plaintiff suffered severe emotional distress after she witnessed her daughter lying injured on a street.’5 The Massachusetts Supreme Judicial Court overruled the impact doctrine and held that the plaintiff stated a compensable claim for the negligent infliction of emotional distress even though she was not within the zone of danger. The court stated that although the zone of danger rule produces more reasonable results than does the impact rule, it is nonetheless inadequate because it does not recognize the reasonable foreseeability of an injury to those outside the physical zone of danger. Reasonable foreseeability, explained the court, is the proper starting point in deciding whether a negligent act leads to liability. Thus, Dziokonski expanded the notion of duty beyond the zone of danger of direct harm to the zone of foreseeable risk of harm. Unlike the zone of danger rule, which limits liability to an absolute physical area, the zone of risk rule is based on the traditional negligence concept of foreseeability. A growing minority of courts view this approach as the better one.
The courts have been inconsistent in attempting to resolve the public policy problems inherent in mental distress cases. The impact rule has been universally condemned as unfair and illogical. The zone of danger rule, while still the majority viewpoint, is the subject of much criticism. The emergence of the zone of foreseeable risk test indicates that some courts are now willing to abandon the earlier, more restrictive tests in determining liability. The Dziokonski approach abrogated one of the arbitrary limitations on recovery, but retained another – the bodily harm requirement. Fear of fraudulent claims and a desire to limit the scope of liability may have produced this compromise. Regardless of the reasons for the requirement, the Dziokonski court distinguished emotional distress manifested by physical injury and emotional distress absent physical manifestations. This distinction prevented recovery in Payton v. Abbott Labs.
PAYTON V. ABBOTT LABS
Payton held that no cause of action exists for the negligent infliction of emotional distress absent any evidence of physical harm. The majority’s opinion focused on three public policy concepts which courts have traditionally weighed against recovery in mental distress cases:
- fear of a flood of litigation;
- fear of fictitious claims;
- and reluctance to subject a defendant to liability for mental distress when he was merely negligent.
The fear of a flood of litigation is based on an expected increase in actions of a trivial nature coupled with an increase in fraudulent claims. The court explained: “It is in recognition of the tricks that the human mind can play upon itself, as much as of the deception that people are capable of perpetrating. . . that we continue to rely upon traditional indicia of harm to provide objective evidence that a plaintiff actually has suffered emotional distress. ”
Previously, the fear that a flood of litigation would ensue had been advanced in support of the impact requirement. This argument has two weaknesses. First, those courts that have relaxed the impact rule have not experienced any substantial increase in litigation. Second, courts should not refuse to adjudicate a particular type of case simply because their docket may increase. A court’s duty is to remedy legal wrongs “even at the expense of a ‘flood of litigation;’ and it is a pitiful confession of incompetence on the part of any court of justice to deny relief upon the ground that it will give the court too much work to do.
The second public policy concept – fear of fraudulent claims – also should not limit recovery. This fear has always troubled the judiciary but now, because of the recent advances in psychiatric and psychological knowledge, there is no longer any justification for denying recovery for purely emotional injuries. Therefore, courts can no longer legitimately deny recovery on the strength of precedent that points to the difficulty of distinguishing between serious and fraudulent mental distress.
In fact, the argument that a jury may be unable to distinguish between a legitimate claim and a fictitious claim is a spurious one which can be advanced in any situation. The Massachusetts Supreme Judicial Court recognized this, and seven years before Payton the court dismissed the notion that tort liability in particular classes of cases should be denied because of the threat of fraud. In Sorenson v. Sorenson6 the court stated that it would be a sad expression of incompetence if we were to admit that the judicial processes are so ineffective that we must deny relief to a person otherwise entitled because in some future case a litigant may be guilty of fraud or collusion. Once that concept were accepted then all causes of action should be abolished.
In Agis v. Howard Johnson Co., a 1976 case mentioned only briefly in Payton, the court rejected this same argument:
That some claims may be spurious should not compel those who administer justice to shut their eyes to serious wrongs and let them go without being brought to account. It is the function of courts and juries to determine whether claims are valid or false. This responsibility should not be shunned merely because the task may be difficult to perform.
For reasons not specified, the Payton court ignored its own reasoning in Agis and Sorenson and resurrected the “fear of fictitious claims” argument.
The third public policy concept the court discussed is that where the defendant’s conduct is negligent, not intentional, he should not be held liable for a purely mental disturbance. This concept is rooted in the misguided belief that the reckless or intentional nature of a defendant’s conduct permits a jury to infer that the plaintiff suffered genuine emotional distress. But the degree of the defendant’s fault bears no relation to the genuineness of a claim for damages for emotional distress. In a well-reasoned dissent, Judge Wilkins pointed out that the defendant’s extreme behavior should be the basis for recovery rather than the basis for inferring genuine emotional distress.
Yet, it was for these three rather unpersuasive policy reasons that the court in Payton upheld the Dziokonski distinction between emotional distress manifested by physical injury and emotional distress absent physical manifestations. This distinction suffers from two serious flaws. First, it assumes that emotional distress without physical manifestations is likely to be trivial. This assumption is incorrect. Because of the subjective nature of anxiety reactions, precise levels of suffering and disability cannot be objectively determined. Relatively mild emotional distress may result in bodily harm to one person, while extremely severe mental trauma may not produce any physical manifestations in another. There is no legal justification based on medical knowledge for prohibiting all plaintiffs from attempting to prove that their injuries are real.
The second drawback to the Dziokonski distinction is that it actually clouds the real issue. The essential question in any mental distress case is one of proof: whether on the facts presented, the plaintiff has suffered a serious and compensable injury. This is a question of fact for the jury. Jurors, by referring to their own experiences, are best able to determine whether the defendant’s conduct has resulted in emotional distress and whether the plaintiff is entitled to compensation. When the judge reads the complaint to determine whether there was a resulting physical injury, he is invading the province of the jury.
The physical harm requirement is simultaneously overinclusive and underinclusive. It is overinclusive because it permits recovery for mental distress when the physical harm is trivial. It is underinclusive because it prevents the litigation of valid claims. In addition to these faults, the physical harm requirement fails to serve its intended purpose – it does not prevent the litigation of fraudulent claims. This shortcoming is illustrated by the simple suggestion that those capable of perjuring evidence in the first instance will not hesitate to fabricate a slight injury to insure recovery.
In short, the physical harm requirement is arbitrary and unreliable. Courts have long feared that compensating the loss of mental tranquility would too often result in undeserved liability. The Payton court hoped to lessen this fear by distinguishing between serious and trivial mental distress based upon the presence or absence of physical harm. However, the majority was so anxious to uphold its convenient distinction that they did not bother to examine what effect their decision would have on the 4,000 plaintiffs. It is questionable whether Judge Lynch, writing for the court, ever studied the factual circumstances that led to the certified question. The court summarily dismissed an entire class of claims as trivial when the claims could have easily been viewed as legitimate. Surely, the facts warranted a jury determination of the reasonableness of the plaintiffs’ claims for emotional distress. A rule that would dismiss as trivial emotional distress without resulting physical injury before there is a jury determination is not a fair one.
In dissent, Judge Wilkins argued that emotional distress is not always trivial. He remarked that emotional distress may result from any number of circumstances.
It may be the product of a reasonable concern about one’s increased prospect of contracting a fatal disease, which may be treatable only by radical surgery or radiation. It may be the result of concern over the expenses, reasonably to be incurred, in submitting to medical examinations. While, on the facts given to us, I cannot declare with certainty that each plaintiff considered in question one may recover for the consequences of her emotional distress, it appears that at least some of the plaintiffs may be able to demonstrate emotional distress of more than a trivial nature.
The fact that most jurisdictions would not have granted relief absent physical harm does not condone adherence to an illogical and oftentimes unjust rule of law. As Judge Wilkins noted. The inertia which results from reliance on a ‘majority view‘ guarantees a glacial development of the law. Even earlier, Judge Musmanno stated, “A precedent can not, and should not, control, if its strength depends alone on the fact that it is old, but may crumble at the slightest probing touch of instinctive reason and natural justice.”
The arguments in support of the physical injury requirement are old and have crumbled in other jurisdictions. Yet the Payton court upheld its former rule of law. The dissent, however, had the better argument; in this case the plaintiffs’ claims should have been submitted to a jury, although there was no allegation of physical harm. Because the plaintiffs were exposed to DES, good medical practice requires interference with their normal lives. The dissent recognized that the time devoted to medical tests affects the plaintiffs’ earning power, and the expense of the testing affects their pocketbooks. The plaintiffs’ concerns are not trivial, evanescent, or feigned. It is apparent from the factual circumstances that the alleged emotional harm is genuine and serious. These circumstances present, in the words of the majority, although they do not perceive it, an ‘objective corroboration of the emotional distress alleged.’
Admittedly, the court was very concerned with “objective corroboration” and the traditional fears of granting recovery for emotional distress. It would seem, however, that the real reason for denying relief rested on some other ground, not articulated by the court. This ground was probably the fear that, once the rigid lines drawn by the artificial restrictions are erased, a defendant might be susceptible to unlimited liability. This fear is one of the motivating forces behind the various limiting doctrines in other jurisdictions.
The possibility of unlimited liability is a legitimate concern, but even this possibility must be balanced against the interest of the injured plaintiff. The law should not seek to provide a remedy every time a plaintiffs feelings are hurt. Conversely, the honest plaintiff should not be denied relief for a foreseeable injury that was negligently caused by another.
The evolution in the area of negligently inflicted mental distress indicates a growing willingness to abandon unnecessarily restrictive tests in assessing liability. Courts that have abandoned these arbitrary rules have found that traditional principles of duty, foreseeability, and proximate cause are sufficient to resolve the judicial fears inherent in mental distress cases. Although there are difficult problems of proof involved, these are neither insurmountable nor unique to mental distress cases and should not prevent a plaintiff from presenting her case in court.
It therefore seems likely that the liberal trend will continue and that even Massachusetts will one day abandon the physical harm requirement. But until that day, it is unfortunate that the courts continue to deny women like Brenda Payton the opportunity to litigate their claims.
Gary S. Glickman, 1982
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