¹ The following scenario is taken from the case of Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993).

² Id. at 594.

³ Id. at 602.

⁴ Crump, David, Evaluating Independent Torts Based Upon “Intentional” or “Negligent” Infliction of Emotional Distress: How Can We Keep the Baby from Dissolving in the Bath Water?, 34 ARIZ. L. REV. 439, 507 (1992)Google Scholar (arguing in support of the court's decision in Boyles).

⁵ Boyles, 855 S.W.2d at 610 (Doggett, J., dissenting).

⁶ Id. (quoting the Women's Advocacy Project Amicus Brief at iii).

⁷ See, e.g., Elden v. Sheldon, 758 P.2d 582, 586 (Cal. 1988) (stating that the “consequences of a negligent act must be limited in order to avoid an intolerable burden on society“); Carey v. Lovett, 622 A.2d 1279, 1286 (N.J. 1993) (noting the effect of expanded liability on medical malpractice insurance); Trombetta v. Conkling, 626 N.E.2d 653,655 (N.Y. 1993) (limiting bystander recovery to the immediate family of injured victim); Boyles, 855 S.W.2d at 599 (refusing to recognize an independent cause of action for negligently inflicted emotional distress). Several commentators have also argued in favor of strict rules limiting recovery in NIED cases. See Crump, supra note 4. Professor Crump argues in favor of strictly limiting the availability of NIED relief to contractual relationships, independent torts, and limited bystander cases. Id. at 507. See also Greenberg, Julie A., Negligent Infliction of Emotional Distress: A Proposal for a Consistent Theory of Tort Recovery for Bystanders and Direct Victims, 19 PEPP. L. REV. 1283, 1310 (1992)Google Scholar. Professor Greenberg concludes that courts should adopt specific guidelines for direct victim actions. For another argument in favor of limiting liability, see Pearson, Richard N., Liability to Bystanders for Negligently Inflicted Emotional Harm: A Comment on the Nature of Arbitrary Rules, 34 U. FLA. L. REV. 477 (1982)Google Scholar. Professor Pearson argues that liability should be restricted to those falling within the “zone of danger” created by the defendant's negligent conduct. Id. at 516. For a discussion of the “zone of danger test,” see infra part II. A.

⁸ See, e.g., Dillon v. Legg, 441 P.2d 912, 915 (Cal. 1968) (characterizing the zone of danger rule as an artificial line based on “happenstance“); Rickey v. Chicago Transit Auth., 457 N.E.2d 1,4 (111. 1983) (noting that the physical impact rule became a purely formal requirement); Culbert v. Sampson's Supermarket's, Inc., 444 A.2d 433,436 (Me. 1982) (noting that the zone of danger rule is unrelated to the authenticity and severity of an emotional injury); Dunphy v. Gregor, 642 A.2d 372, 376-78 (N.J. 1994) (stating that duty is a matter of fairness and refusing to adopt a bright line, arbitrary rule for bystander recovery); Paugh v. Hanks, 451 N.E.2d 759, 763 (Ohio 1983) (criticizing the zone of danger rule as arbitrarily restrictive). Several commentators also argue that the current rules unfairly discriminate among equally deserving plaintiffs. See, e.g., Peter A. Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury, 36 U. FLA. L. REV. 333, 334 (1984). Professor Bell notes that the “existing rules restricting recovery for psychic injury disserve generally accepted goals of tort law.” He argues for full recovery for psychic harm based on a foreseeability standard. Id. at 334-35. See also Miller, Richard S., The Scope of Liability for Negligent Infliction of Emotional Distress: Making “The Punishment Fit the Crime,” 1 U. HAW. L. REV. 1, 46 (1979)Google Scholar (characterizing existing limitations as arbitrary). Professor Miller argues for recovery for all foreseeable victims of serious emotional distress and limiting damages to pecuniary losses. Id. at 47. For an interesting argument in favor of expanded liability based on relationships and expert medical testimony, see Leibson, David J., Recovery of Damages for Emotional Distress Caused by Physical Injury to Another, 15 J. FAM. L. 163 (1977)Google Scholar.

⁹ The lack of coherence and clarity in emotional distress law has been lamented since at least 1959. See infra note 35.

¹⁰ See, e.g., Consolidated Rail Corp. v. Gottshall, 114 S. Ct. 2396, 2411 (1994) (rejecting the physical impact test for emotional distress cases arising under the Federal Employers’ Liability Act); Dillon, 441 P.2d at 918 (extending liability to bystanders; no physical injury requirement); First Nat'l Bank v. Langley, 314 So. 2d 324, 334 (Miss. 1968) (same); Falzone v. Busch, 214 A.2d 12, 17 (N.J. 1965) (rejecting physical impact requirement); Gates v. Richardson, 719 P.2d 193, 195 (Wyo. 1986) (listing the jurisdictions which reject the physical impact requirement).

¹¹ See, e.g., Tobin v. Grossman, 249 N.E.2d 419, 424 (N.Y. 1969) (concern over fear of increased litigation); Gates, 719 P.2d at 196 (noting the concern over the consequences to the court system). However, most courts recognize that the fear of an increase in litigation should not bar meritorious claims. See, e.g., Falzone, 214 A.2d at 16 (stating that the “fear of an expansion of litigation should not deter courts from granting relief…; the proper remedy [for a rise in litigation] is an expansion of the judicial machinery“); Ramirez v. Armstrong, 673 P.2d 822, 826 (N.M. 1983) (noting that the flood of litigation has not occurred in jurisdictions expanding liability). On the other hand. Professor Pearson argues that concern over the increase in the number of plaintiffs who may validly bring a claim is legitimate and persuasive. See Pearson, supra note 7, at 506.

¹² The concern over the possibility of a disproportionate relationship between liability and culpability “has been the most lasting policy limitation on actions for mental distress.” Comment, Negligent Infliction of Mental Distress: A Jurisdictional Survey of Existing Limitation Devices and Proposal Based on an Analysis of Objective Versus Subjective Indices of Distress, 33 VILL. L. REV. 781, 790(1988). Courts have also continually stressed this concern. See, e.g., Thing v. LaChusa, 771 P.2d 814, 826 (Cal. 1989) (stating that a foreseeability standard places no limit on liability); Carey v. Lovett, 622 A.2d 1279, 1286 (N.J. 1993) (noting concern for undue liability).

¹³ See, e.g., Consolidated Rail Corp., 114 S. Ct. at 2406 n.9 (listing jurisdictions utilizing zone of danger test); Corgan v. Muehling, 574 N.E.2d 602, 605 (111. 1991) (noting that zone ot dangertest applies in Illinois for bystanders); Falzone, 214 A.2d at 17 (adopting zone of dangertest). For a discussion of the zone of danger test, see infra part II. A.

¹⁴ Many jurisdictions require the plaintiff to be within the zone of danger and exhibit physical manifestations of emotional injury. See, e.g., Consolidated Rail Corp., 114S. Ct. at 2407 n.11 (1993) (noting that several jurisdictions require both zone of danger and physical manifestations); Payton v. Abbott Labs, 437 N.E.2d 171, 178-79 (Mass. 1982) (must exhibit physical manifestations of emotional injury); Leaon v. Washington County, 397 N.W.2d 867, 875 (Minn. 1986) (same).

¹⁵ Although there is some confusion as to exactly who qualifies as a “direct” victim, the term has been defined as an individual who seeks damages as a result of a breach of duty owed the plaintiff “arising from a pre-existing relationship that is negligently breached.” Burgess v. Superior Court (Gupta), 831 P.2d 1197, 1201 (Cal. 1992).

¹⁶ See, e.g., Thing, 771 P.2d at 829-30; James v. Lieb, 375 N.W.2d 109, 114-16 (Neb. 1985); Frame v. Kothari, 560 A.2d 675, 678 (N.J. 1989). The United States Supreme Court has recently stated that “nearly half the States” allow bystanders to recover for their emotional distress. Consolidated Rail Corp., 114 S. Ct. at 2407. “Bystander” claims are usually those in which the defendant had neither a pre-existing relationship with the plaintiff, nor a general duty to the public to avoid causing emotional harm. Burgess, 831 P.2dat 1200.

¹⁷ See Carey v. Lovett, 622 A.2d 1279, 1293 (N.J. 1993) (Handler, J., concurring) (arguing that the majority opinion conflates the two kinds of claims and thus confuses the issue).

¹⁸ See infra notes 24-35 and accompanying text.

¹⁹ See infra notes 36-71 and accompanying text.

²⁰ See infra notes 72-104 and accompanying text.

²¹ 27 Cal. Rptr. 2d 894 (Cal. Ct. App. 1994). See also notes 105-21 and accompanying text.

²² See infra notes 178-90 and accompanying text.

²³ See infra part IV.

²⁴ See, e.g.. Ward v. West Jersey & Seashore R.R. Co., 47 A. 561 (N.J. 1900); State v. Daniel, 48 S.E. 544 (N.C. 1904); Palsgrafv. Long Island R.R. Co., 162N.E.2d 99 (N.Y. 1928); Brookerv. Silverthorne, 99 S.E. 350 (S.C. 1919). For a listing of states still utilizing the physical impact rule, see Comment, supra note 12, at 792.

²⁵ Traditionally, persons bringing tort actions to recover for physical injuries were also allowed to recover for the “pain and suffering” associated with the physical injury. For a brief discussion of the “pain and suffering” element of damages, see Pearson, supra note 7, at 485-87.

²⁶ Id.

²⁷ See Portee v. Jaffee, 417 A.2d 521, 523 (N.J. 1980). The court discusses the history of the requirements surrounding the physical impact rule in New Jersey. See also Ward, 47 A. at 566 (arguing that the law cannot develop rules designed to determine the truth or falsity of such an intangible claim). One commentator notes that the “sole purpose of the rule was to limit the number of potential actions and to assure the legitimacy of the claims.” Comment, supra note 12, at 791.

²⁸ Portee, 417 A.2d at 523.

²⁹ For an extended discussion of the advances in medical knowledge and an argument in favor of expanded liability (in part) on these grounds, see Leibson, supra note 8, at 190-201.

³⁰ Scientific research has provided modern society with a detailed and scientific understanding of the human mind.” Corgan v. Muehling, 574 N.E.2d 602, 608 (111. 1991). The court also notes that the “mental health care field [has] made significant improvements in the diagnosis, description, and treatment of emotional distress.” Id. at 609. For an in-depth, extended discussion of emotional distress from the social policy perspective, see Comment, supra note 12, at 817-33. The author points out that the legal process may sometimes exacerbate psychic harm and concludes that a “method of generally identifying those situations where legal redress will likely be beneficial” is required. Id. at 833.

³¹ See, e.g., Dillon v. Legg, 441 P.2d 912, 917 (Cal. 1968) (noting that juries should be able to determine the persuasiveness of expert testimony); Rodrigues v. State, 472 P.2d 509, 519-20 (Haw. 1970) (noting that the “contemporary sophistication of the medical profession” will enable juries and judges to weed out fraudulent claims). See also Leibson, supra note 8, at 210-11 (concluding that current medical knowledge can be a valuable tool in determining the appropriate rules to govern NIED claims).

³² See, e.g., Molien v. Kaiser Found. Hosp., 616 P.2d 813 (Cal. 1980) (stating that the physical injury requirement is no longer justifiable); Falzone v. Busch, 214 A.2d 12 (N.J. 1965) (abandoning the impact rule); Niederman v. Brodsky, 261 A.2d 84 (Pa. 1970) (same). However, a few states still retain the impact requirement. See Shuamber v. Henderson, 579 N.E.2d 452 (Ind. 1991); Anderson v. Scheffler, 752 P.2d 667 (Kan. 1988).

³³ See generally W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 54 (5th ed. 1984). The physical impact requirement is almost universally recognized as unsatisfactory. See, e.g., Comment, supra note 12, at 790-94; Miller, supra note 8, at 3 (impact rule no longer enjoys wide support); Davies, Julie A., Direct Actions for Emotional Harm: Is Compromise Possible?, 67 WASH. L. REV. 1, 7-9 (1992)Google Scholar (same).

³⁴ The Supreme Court indicates that at least five states continue to utilize the impact test, although most have abandoned it. Consolidated Rail Corp. v. Gottshall, 114 S. Ct. 2396, 2406 (1993). See also Davies, supra note 33, at 8 (noting most courts no longer require impact); Comment, supra note 12, at 792 (same).

³⁵ See Comment, supra note 12, at 781. “The case law in the field here treated is in an almost unparalleled state of confusion and any attempt at a consistent exegesis of the authorities is likely to break down in embarrassed perplexity.” Id. (quoting Annotation, Right to Recover for Emotional Disturbance or its Physical Consequences in the Absence of Impact or Other Actionable Wrong, 64 A.L.R.2d 100, 103(1959)).

³⁶ Most courts abandoning the physical injury requirement have adopted the zone of danger rule. See, e.g., Washington v. John T. Rines Co., 646 A.2d 345, 347 (D.C. App. 1994) (noting that the District of Columbia uses the zone of danger test); Tibbets v. Crossroads, Inc., 411 N.W2d 535, 538 (Minn. Ct. App. 1987); First Nat'l Bank v. Langley, 314 So. 2d 324, 334 (Miss. 1975); Falzone, 214 A.2d at 12; Trombetta v. Conkling, 626 N.E.2d 653, 654 (N.Y. 1993) (noting that New York applies zone of danger test).

³⁷ See Davies, supra note 33, at 21. Professor Davies notes that “[t]he basic premise of the rule is that the parameters of the duty to avoid negligent infliction of emotional harm ought to be commensurate with the duty to avoid creation of unreasonable risks of physical harm.” Id.

³⁸ 114 S . Ct. 2396, 2410(1994).

³⁹ Id. at 2400.

⁴⁰ Id. at 2410.

⁴¹ Gottshall v. Consolidated Rail Corp., 988 F.2d 355, 371 (3d Cir. 1993).

⁴² Id. at 374-75.

⁴³ Id. at 383.

⁴⁴ Consolidated Rail Corp. v. Gotshall, 114 S. Ct. 2396, 2411 (1994).

⁴⁵ Id. at 2411.

⁴⁶ Id. at 2410-11.

⁴⁷ Id. at 2408, 2411.

⁴⁸ Id. at 2408.

⁴⁹ Id. at 2411.

⁵⁰ See, e.g., Dillon v. Legg, 441 P.2d 912, 915 (Cal. 1968) (noting the injustice of drawing the line between permissible and impermissible claims “merely because of a happenstance that [one person] was some few yards closer to the accident“); Dziokonski v. Babineau, 380 N.E.2d 1295, 1300 (Mass. 1978) (stating that the rule is not logically supported); Miller, supra note 8, at 18 (discussing issues of fairness and noting that the zone of danger rule is impermissibly arbitrary); Davies, supra note 33, at 20 (zone of danger rule as applied by courts is incorrect). Professor Davies argues that the underlying premise of the rule is that there is a pre-existing obligation between the plaintiff and the defendant to avoid creating psychic stress and concludes that the rule should be applied broadly. Id. at 21, 53.

⁵¹ The injustice of allowing recovery for emotional distress when accompanied by even a slight impact while denying it when the plaintiff happened to get out of harm's way is precisely why the rule was established. See Pearson, supra note 7, at 486-90.

⁵² The rule allows recovery for emotional distress that may be “trivial” as long as the individual happens to be within the zone of danger, and refuses to allow recovery to many very serious and genuine claims simply because the plaintiff may have been a few feet away. See Dillon, 441 P.2d at 914 (criticizing the zone of danger rule as artificial).

⁵³ See, e.g., Burgess v. Superior Court (Gupta), 831 P.2d 1197, 1209 (Cal. 1992) (noting that recovery for emotional harm includes several emotional reactions including fear, grief, and anxiety).

⁵⁴ Professor Pearson apparently supports just such a distinction and concludes that the zone of danger test is the proper approach to NIED claims because it is internally consistent. Pearson, supra note 7, at 516. He argues that once courts began to recognize “fright” as a recoverable element of damages, an inevitable tension arose between the damage rule allowing recovery for fright and a liability rule requiring physical impact. Id. at 488. According to Professor Pearson, the zone of danger rule extended liability to include an action based on fear for one's own safety, and reconciled the “discontinuity between the liability and damages [rules].” Id. at 490. However, Professor Pearson fundamentally misconstrues the nature of the harm at issue in NIED cases. It is not (at least primarily) the momentary fear for one's own safety that gives rise to a claim for NIED, but rather the emotional instability and suffering that arises from that fear. In fact, “fright” alone may be just the kind of trivial harm that courts consider specious. The resulting demise in the plaintiff's emotional stability, or the effect that the fright had on the individual's psyche comprises the harm in NIED cases. Once this point is understood, the “arbitrariness” of the zone of danger rule becomes clear. See Comment, supra note 12, at 817 (discussing the causes of emotional harm). In fact, courts simply do not distinguish among the types of emotional harm suffered by plaintiffs. See, e.g., Burgess, 831 P.2d at 1209 (listing “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, and indignity” as kinds of emotional harm).

⁵⁵ For instance, courts often allow recovery to family members of a deceased for the negligent mishandling of a corpse. See Strachan v. John F. Kennedy Memorial Hosp., 538 A.2d 346, 353 (N.J. 1988). This claim is often characterized as an exception to the zone of danger rule, apparently because the plaintiffs are “direct” victims and yet are not within the “zone” when the harm occurs. Id. at 353-54.

⁵⁶ Davies, supra note 33, at 23. Professor Davies argues that the duty to avoid creating unreasonable risks of physical harm is a “pre-existing obligation” on the part of the defendant. She then argues that the “pre-existing obligation” rationale should be applied in other contexts as well. “A wide range of relationships between the plaintiff and the defendant may make it fair to impose liability for damages arising from emotional distress despite the fact that bodily harm is not threatened in a literal sense.” Id. Professor Davies concludes that the proper approach includes focusing on the relationship of the plaintiff and the defendant and de-emphasizing foreseeability as giving rise to the defendant's duty. Id. at 53.

⁵⁷ Id. at 23.

⁵⁸ Id.

⁵⁹ See, e.g., Keck v. Jackson, 593 P.2d 668, 669-70 (Ariz. 1979) (en banc) (requiring physical manifestations to avoid speculative claims); Mergenthaler v. Asbestos Corp. of Am., 480 A.2d 647 (Del. 1984) (requiring present physical injury); Hatfield v. Max Rouse & Sons Northwest, 606 P.2d 944 (Idaho 1980) (no claim where injury does not result in physical manifestation); Abbott v. Forest Hill State Bank, 483 A.2d 387 (Md. 1984) (physical manifestation requirement provides indicia of the genuineness of claim).

⁶⁰ See Comment, supra note 12, at 795.

⁶¹ See Payton v. Abbott Labs, 437 N.E.2d 171, 178 (Mass. 1982) (recognizing that emotional or psychic injury is easy to exaggerate or even to fabricate).

⁶² See, e.g., James v. Lieb, 375 N.W.2d 109, 116 (Neb. 1985) (noting that the physical manifestations requirement is overinclusive and underinclusive); Comment, supra note 12, at 801-02 (“[S]erious distress is noncompensable absent the happenstance of subsequent physical symptoms.“).

⁶³ See Comment, supra note 12, at 801-02. See also Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433,437 (Me. 1982) (noting that physical manifestations requirement is overinclusive and underinclusive).

⁶⁴ James, 375 N.W.2d at 116 (quoting Fournell v. Usher Pest Control Co., 305 N.W.2d 605, 611 (Neb. 1985)).

⁶⁵ See Comment, Negligently Inflicted Mental Distress: The Cases for an Independent Tort, 59 GEO. L.J. 1237, 1252-53(1971). The author concludes that medical science can satisfy concerns about the genuineness of emotional distress claims. Id. at 1253.

⁶⁶ Comment, supra note 12, at 802.

⁶⁷ Nolan, Virginia E. & Ursin, Edmund, Negligent Infliction of Emotional Distress: Coherence Emerging from the Chaos, 33 HASTINGS L.J. 583 (1982)Google Scholar.

⁶⁸ Simply put, the foreseeability approach asks whether a reasonable person would find it foreseeable that the conduct at issue would cause emotional harm. For a further discussion of foreseeability in the context of NIED actions, see id. at 606-19.

⁶⁹ Id. at 609-11. Although many courts have adopted a serious and genuine injury requirement, it is only in conjunction with other added requirements. See, e.g., Thing v. LaChusa, 771 P.2d814, 828 (Cal. 1989).

⁷⁰ Some jurisdictions have seemingly adopted a broad foreseeability standard, only to retreat from that stance in later cases. For example, the California Supreme Court appeared to adopt a broad right of recovery based primarily on foreseeability in Molien v. Kaiser Found. Hosp., 616 P.2d 813 (Cal. 1980). However, in Thing, 771 P.2d at 814, the court backed away from its stance, stating that foreseeability could not be applied meaningfully to cases involving intangible harm. Id. at 826.

⁷¹ See infra notes 131-48 and accompanying text. For an opposing view regarding the restriction of liability on these grounds, see generally Bell, supra note 8, at 347-91. Professor Bell argues that a foreseeability test alone is sufficient, analyzing the issue from the standpoint of economic efficiency. He concludes that costs should be internalized by the tortfeasor.

⁷² A direct victim is generally understood to be one to whom a pre-existing duty is owed. A bystander is generally a person standing in a particular kind of close relationship with the party injured by the defendant's negligent conduct. See Davies, supra note 33, at 9. The author delineates the distinction between “direct” and “bystander” actions. Id.

⁷³ 441 P.2d 912(Cal. 1968).

⁷⁴ Id. at 914.

⁷⁵ Id. at 919.

⁷⁶ Id. at 920.

⁷⁷ Id.

⁷⁸ See Consolidated Rail Corp. v. Gottshall, 114 S. Ct. 2396, 2407 n.10 (1993) (listing states that have adopted the bystander theory of recovery as Alaska, California, Florida, Iowa, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, Washington, West Virginia, and Wyoming). See also Comment, supra note 12, at 806-07 (listing jurisdictions adopting the Dillon analysis).

⁷⁹ Dillon, 441 P.2d at 920-21.

⁸⁰ The California Supreme Court has since diminished the role of foreseeability in determining whether a duty to avoid emotional distress exists. In Thing v, LaChusa, 771 P.2d814(Cal. 1989), the court stated that “[i]t is apparent that reliance on foreseeability of injury alone in finding a duty, and thus a right to recover, is not adequate when the damages sought are for an intangible harm.” Id. at 826.

⁸¹ But see id. (stating that “[t]heDillon experience confirms… that ‘[f]oreseeability proves too much [I]t provides virtually no limit on liability for nonphysical harm.'” (quoting Rabin, Tort Recovery for Negligently Inflicted Economic Loss: A Reassessment, 37 STAN. L. REV. 1513, 1526(1985))).

⁸² For example, the New York Court of Appeals has rejected the Dillon approach. Tobin v. Grossman, 249 N.E.2d 419, 423 (N.Y. 1969). The court believed that none of the Dillon factors set appropriate limits on liability and stated that its decision was primarily based on a consideration of the possibility of unlimited liability for defendants. Id. at 422-23. See also Pearson, supra note 7, at 516 (contending that expansion of liability beyond the zone of danger rule is inappropriate).

⁸³ Compare Andersen v. Baccus, 439 S.E.2d 136, 139 (N.C. 1994) (upholding a summary judgment ruling against a claim where a husband of an injured victim arrived on the scene shortly after the accident) with Dziokonski v. Babineau, 380 N.E.2d 1295, 1302 (Mass. 1978) (allowing a claim where a mother arrived on the scene shortly after the accident and saw her daughter).

⁸⁴ See, e.g., Elden v. Sheldon, 758 P.2d 582, 588 (Cal. 1988) (requiring marital or blood relationship for recovery and refusing claim of unmarried cohabitant bystander); Frame v. Kothari, 560 A.2d 675, 678 (N.J. 1989) (requiring the injury to be capable of “immediate sensory perception“).

⁸⁵ The elements of the Dillon bystander standard have been given different emphasis and weight in various jurisdictions. See Comment, supra note 12, at 808 (discussing the varied applications of the Dillon test).

⁸⁶ See, e.g., James v. Lieb, 375 N.W.2d 109, 115 (Neb. 1985) (emphasizing the relationship prong over the physical proximity prong); Dunphy v. Gregor, 642 A.2d 372, 373-76 (N.J. 1994) (broadening the relationship prong to include unmarried cohabitants); Portee v. Jaffee, 417 A.2d 521, 526 (N.J. 1980) (noting that the “existence of a close relationship” is the crucial factor).

⁸⁷ See, eg., Frame, 560 A.2d at 678 (strict application of contemporaneous observation requirement); Gendek v. Poblete, 636 A.2d 113,117 (N.J. Super. Ct. App. Div. 1994) (same); Gates v. Richardson, 719 P.2d 193, 199 (Wyo. 1986) (emphasizing the contemporaneous perception prong of the bystander test).

⁸⁸ Several policy issues are at stake when analyzing the proper scope and availability of NIED actions. Most courts consider: (1) the foreseeability of harm; (2) the closeness of the connection between the defendant's conduct and the plaintiff's harm; (3) the possibility of trivial or fraudulent claims; (4) the culpability of the defendant's conduct; (5) the extent that liability will deter future conduct; (6) the burden on the defendant; (7) the possibility of a flood of litigation; and (8) the availability and cost of insurance. See Gates, 719 P.2d at 196 (listing factors to be considered). See also infra part III.

⁸⁹ 758 P.2d 582 (Cal. 1988).

⁹⁰ Id. at 588.

⁹¹ Id.

⁹² 642 A.2d 372 (N.J. 1994).

⁹³ Id. at 377.

⁹⁴ Elden, 758 P.2d at 587.

⁹⁵ Id. at 588.

⁹⁶ Dunphy, 642 A.2d at 375.

⁹⁷ Id. at 376.

⁹⁸ Id.

⁹⁹ Id. at 377.

¹⁰⁰ Id.

¹⁰¹ Id.

¹⁰² Id. (quoting Elden v. Sheldon, 758 R2d 582, 593 (Cal. 1988) (Broussard, J., dissenting)).

¹⁰³ Id. at 380.

¹⁰⁴ See Comment, supra note 12, at 808.

^l05 Bro v. Glaser, 27 Cal. Rptr. 2d 894 (Cal. Ct. App. 1994).

¹⁰⁶ Id. at 906. The test is very similar to that advocated by Professor Davies. See Davies, supra note 33, at 37. The test presented in this Note is a variation of the test discussed in that article. See infra part IV.

¹⁰⁷ Bro, 27 Cal. Rptr. 2d at 921.

¹⁰⁸ Id.

¹⁰⁹ Id. at 894.

¹¹⁰ Id. at 897.

¹¹¹ Id.

¹¹² Id. at 922. See supra notes 105-08 and accompanying text.

¹¹³ Id. at 896 (quoting Merenda v. Superior Court, 4 Cal. Rptr. 2d 87, 94 (Cal. Ct. App. 1992)).

¹¹⁴ Molien v. Kaiser Found. Hosp., 616 P.2d 813 (Cal. 1980). In Molien, the defendant-doctor misdiagnosed the plaintiff's wife as having syphilis. In the subsequent NIED suit against the doctor, the California Supreme Court found a duty flowing directly from the doctor to the plaintiff, and declined to apply the Dillon bystander test to the husband's claim. The court characterized the husband as a “direct” victim and Molien appeared to adopt a simple foreseeability standard for NIED claims. Id. at 816. Lower California courts subsequently found it difficult to determine the scope of NIED claims. Bro, 27 Cal. Rptr. 2d at 902. See also Greenberg, supra note 7, at 1286 (noting the confusion in California case law after Molien).

¹¹⁵ Bro, 27 Cal. Rptr. 2d at 907.

¹¹⁶ Id. at 906, 920.

¹¹⁷ See Davies, supra note 33, at 37-53 (arguing in favor of adopting a pre-existing relationship approach). Professor Davies concludes that, “[b]y accepting the actionability of emotional distress damages in a broader range of situations—including special relationships and undertakings to act—courts can more fully recognize that many types of interactions between plaintiffs and defendants are equally suitable for awards of emotional distress damages.” Id. at 50-51.

¹¹⁸ This limitation addresses two concerns. First, because the pre-existing relationship limits the number of potential plaintiffs in any given case, defendants will not be subject to unlimited liability. Second, defendants will be able to constrain their behavior in appropriate cases, because potential plaintiffs represent a discrete class of persons with whom the defendant already has a relationship.

¹¹⁹ See infra notes 122-30 and accompanying text.

¹²⁰ Bro, 27 Cal. Rptr. 2d at 921.

¹²¹ See Crump, supra note 4,465-71. Professor Crump sets out several hypothetical fact patterns and argues that a general NIED right of recovery would allow claims where, for example, an employer fires an employee clumsily, resulting in the employee's emotional distress. However, by adopting an “outrageousness” standard, courts would be able to distinguish between mere clumsiness and a reckless disregard for the emotional security of others. Also, Professor Crump argues that the generally recognized tort of intentional infliction of emotional distress should cover many of the cases in which recovery for emotional harm would be proper. Id. at 453-57. He believes that plaintiffs attempt to plead NIED in order to reach the deeper pockets of insurance companies, whose policies usually cover negligent, but not intentional behavior. Id. at 442-43. He concludes that the better policy restricts plaintiffs to the intentional infliction of emotional distress claim and keeps many insurance issues off the table. Id. at 488-90. A complete rebuttal of Professor Crump's argument is beyond the scope of this Note. However, NIED claims, to the extent that they reach insurance companies and force them to raise premiums, may be the only way to adequately deter defendants who do not have deep pockets of their own.

¹²² I derive the term accident from Professor Bell. See Bell, supra note 8, at 347. Professor Bell defines the term as “any interaction between person(s) which results in harm.” Id. at 347 n.66. Professor Bell is also careful to note that this definition does not include intentional harm.

¹²³ This is Judge Learned Hand's famous formula, first announced in United States v. Caroll Towing Co., 159 F.2d 169 (2d Cir. 1947).

¹²⁴ A simple hypothetical illustrates this point. Suppose the cost of taking care to avoid the potential accident is $100. Further, suppose that the probability that an accident will occur is 10% (an accident will occur one out of every 10 times the actor engages in the risky conduct) and the average cost of the injury is $900. The expected accident cost is then $90. Because the cost of taking care, $ 100, is greater than the expected accident cost, $90, forcing the actor to internalize this cost is inefficient and does not maximize social wealth. In addition, this high cost of liability may stop some actors from engaging in risky but socially useful activity.

¹²⁵ See Comment, supra note 12, at 790 (discussing the concern over undue liability of defendants and overdeterrence of socially beneficial activity).

¹²⁶ See Bell, supra note 8, at 349.

¹²⁷ Id.

¹²⁸ Id.

¹²⁹ Id.

¹³⁰ Id.

¹³¹ See Miller, supra note 8, at 16.

¹³² See Crump, supra note 4, at 461.

¹³³ Id. at 461-62.

¹³⁴ See, e.g., James v. Lieb, 375 N.W.2d 109, 116 (Neb. 1985) (stating that “physical manifestation of the psychological injury may be highly persuasive, [but] such proof is not necessary given the current state of medical science and advances in psychology“); Paugh v. Hanks, 451 N.E.2d 759, 767 (Ohio 1983) (“[E]xpert medical testimony can assist the judicial process in determining whether the emotional injury is indeed, serious.“). See generally Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 GEO. L.J. 1237 (1971) (engaging in extended analysis of questions of proof of emotional harm). Nonetheless, some courts still emphasize the need to prevent fraudulent claims. See, e.g., Payton v. Abbott Labs, 437 N.E.2d 171, 178 (Mass. 1982).

¹³⁵ Paugh, 451 N.E.2d at 767.

¹³⁶ James, 375 N.W.2d at 115 (noting the “profound, systematic mental and emotional reaction likely to befall a close relative“); Carey v. Lovett, 622 A.2d 1279, 1287 (N.J. 1993) (noting that the relationship between a mother and baby serves to prove the genuineness of an NIED claim).

¹³⁷ Gates v. Richardson, 719 P.2d 193, 197 (Wyo. 1986) (quoting Nehring v. Russell, 582 P.2d 67, 79 (Wyo. 1978)).

¹³⁸ See Comment, supra note 12, at 790; Davies, supra note 33, at 18.

¹³⁹ Consolidated Rail Corp. v. Gottshall, 114 S. Ct. 2396, 2408-09 (1994).

¹⁴⁰ 249 N.E.2d 419 (N.Y. 1969).

¹⁴¹ Id. at 423.

¹⁴² See, e.g., James v. Lieb, 375 N.W.2d 109, 115 (Neb. 1985) (characterizing the Tobin court's fear as “unfounded“); Paugh v. Hanks, 451 N.E.2d 759, 766-67 (Ohio 1983) (jury determination of the closeness of the relationship can appropriately limit the class of potential plaintiffs); Dziokonski v. Babineau, 380 N.E.2d 1295, 1299, 1302 (Mass. 1978) (rejecting arguments against limiting liability and adopting a reasonable foreseeability test). See also Consolidated Rail Corp., 114 S. Ct. at 2407 (noting that nearly half the states now recognize bystander recovery).

¹⁴³ See, e.g., Tobin, 249 N.E.2d at 423 (NIED based on foreseeability cannot be confined); Boyles v. Kerr, 855 S.W.2d 593, 602 (Tex. 1993) (NIED cause of action overly broad).

¹⁴⁴ Davies, supra note 33, at 6.

¹⁴⁵ Boyles, 855 S.W.2d at 602. The facts of the case are summarized at the outset of this Note. The Texas court believed that recognizing a right in the context of a personal relationship would unduly extend recovery for emotional distress. Instead, the court required a “specific duty of care that, under the law, arises from the relationship.” Id. at 600. The court ultimately noted that Texas recognizes the tort of intentional infliction of emotional distress, including that caused by “outrageous” conduct, and remanded the case for a new trial. The opinion makes it fairly clear that the court believed that Ms. Kerr would be successful under an intentional infliction of emotional distress claim. Id. at 600-03.

Interestingly, Mr. Boyles's appellate counsel was Professor David Crump, who argued to the court that insurance played the motivating factor in Ms. Kerr's failed reliance on an NIED theory. Evidently, Mr. Boyles's insurance would have covered all negligently caused harm, but did not cover intentionally caused harm. Crump, supra note 4, at 442. In his article, Professor Crump laments the “hardball tactics and get-the-insurance” strategy employed by Ms. Kerr's counsel. Id. He concludes that insurance should not have to pay for the kind of behavior at issue in the Boyles case. However, the possibility of rising insurance costs may be the only incentive judgment proof defendants have to avoid negligently inflicting emotional harm. See supra notes 122-30 and accompanying text.

¹⁴⁶ A “pure” NIED claim is one in which no other legal duty or standard of care exists. For example, in an NIED claim based on malpractice resulting in the stillbirth of a child, the negligent conduct is the medical malpractice. See, e.g., Carey v. Lovett, 622 A.2d 1279 (N.J. 1993). The standard for determining whether the emotional distress was inflicted negligently is rarely at issue in this type of case because the medical malpractice is the negligence that gives rise to the NIED claim. In a “pure” NIED claim such as that at issue in Boyles v. Kerr, Boyles violated no separate legal standard of conduct. Boyles, 855 S.W.2d at 600. The claim was simply that Boyles's actions in videotaping and showing the act of sexual intercourse to others itself negligently inflicted emotional distress. Id. at 594.

¹⁴⁷ For example, in Bro v. Glaser, 27 Cal. Rptr. 2d 894 (Cal. Ct. App. 1994), the court adopted an “outrageousness” requirement for NIED claims when no other independent legal duty, such as a medical standard of care, exists. Id. at 922.

¹⁴⁸ See Dunphy v. Gregor, 642 A.2d 372, 375-76 (N.J. 1994) (expressing apparent satisfaction with the status of New Jersey's bystander jurisprudence).

¹⁴⁹ See supra note 35.

¹⁵⁰ See supra notes 88-104 and accompanying text.

¹⁵¹ See Miller, supra note 8, at 18.

¹⁵² Id. at 16.

¹⁵³ For a list of the various policy concerns at issue, see supra note 88.

¹⁵⁴ Professor Davies's article is primarily concerned with direct actions for emotional harm. Professor Davies argues that a proper understanding of the zone of danger rule involves determining whether the defendant had a pre-existing obligation to avoid inflicting emotional harm. See Davies, supra note 33, at 23. This Note uses the term relationship rather than obligation, but the terms are used in a substantially similar manner. Both approaches attempt to emphasize that an understanding of the philosophies which buttress direct actions should lead to a limited expansion of the scope of liability by eliminating the “rigidity and arbitrariness” inherent in the applications of the current rules. Id. at 30.

Professor Leibson, on the other hand, focuses on the importance of relationships in the context of bystander actions. See Leibson, supra note 8, at 195-96. He concludes that, medically speaking, the Dillon requirements of contemporaneous observation and location near the scene of the accident are irrelevant. Id. Similarly, this Note argues that the only important inquiry for determining whether a bystander should recover concerns the relationship of the plaintiff to the injured victim. The Note essentially attempts to combine the insights of Professors Davies and Leibson, among others, into a single, working theory to govern NIED claims.

¹⁵⁵ NIED claims have traditionally involved a claim based on an independent tort, such as medical malpractice.

¹⁵⁶ See supra note 146.

¹⁵⁷ This is the standard adopted by the court in Bro v. Glaser, 27 Cal. Rptr. 2d 894 (Cal. Ct. App. 1994). See supra notes 105-21 and accompanying text.

¹⁵⁸ Professor Leibson argues that the inquiry into the relationship between the plaintiff and the injured party is the only one that is relevant. See Leibson, supra note 8, at 196. Further, he argues that eliminating the other prongs of the Dillon bystander test will not lead to a great expansion in NIED recovery. Historically, most of the litigation in this area has been between the defendant and the mother of a dead or injured child. Occasionally, actions have been brought by fathers, spouses, or on behalf of children who have lost a parent or sibling. If defendants’ duty were extended, an overwhelmingly large percentage of future litigation would undoubtedly still be brought by these same people, the largest percentage of whom would still be emotionally distraught mothers. Id. at 195-96.

¹⁵⁹ The serious and genuine requirement is essentially just a screening device. Its function is simply to ensure that plaintiffs allowed to proceed on an NIED theory have actually suffered serious harm. The requirement has two primary benefits: (1) it denies recovery to persons suffering very trivial distress; and (2) it limits the kinds of claims brought to those that involve fairly serious emotional injury. For a general discussion of the seriousness requirement, see Nolan & Ursin, supra note 67, at 609-19.

¹⁶⁰ A word must be said about the distinction between “direct” and “bystander” claims for emotional distress. Under the proposed approach, the distinction is relatively simple. Plaintiffs able to establish a pre-existing relationship with the defendants are “direct” victims. Plaintiffs unable to show a pre-existing relationship with the defendant can be labelled “bystanders” and must satisfy the extra “intimate” relationship prong in order to recover for NIED. However, because the difference in the tests for recovery occurs at the initial relationship inquiry, the direct-bystander distinction serves a diminished purpose under the proposed test. If a plaintiff establishes a pre-existing relationship with the defendant or an “intimate” relationship with the victim, then the inquiry simply turns to an assessment of the defendant's conduct and the validity and extent of the plaintiff's injury.

¹⁶¹ Although this Note uses the term relationship, it is not limited to those with whom the defendant has already had contact, but also includes those individuals to whom the defendant owes a duty imposed by law. See, e.g., Dillon v. Legg, 441 P.2d 912 (Cal. 1968) (pre-existing duty imposed by law creates legal relationship). See also supra note 15.

¹⁶² See supra notes 122-30 and accompanying text.

¹⁶³ See Davies, supra note 33, at 51.

¹⁶⁴ Simply put, the defendant has no way of determining: (1) whether he will be held liable for the conduct that causes emotional distress; and (2) whether the cost of avoiding the emotional harm is greater or less than the possible resulting emotional harm. See also supra notes 122-30 and accompanying text.

¹⁶⁵ See Crump, supra note 4, at 465-71.

¹⁶⁶ Id. at 507.

¹⁶⁷ See, e.g., Hepler, Deborah K., Providing Creative Remedies To Bystander Emotional Distress Victims: A Feminist Perspective, 14N. ILL. U. L. REV. 71, 79 (1993)Google Scholar (advocating an emphasis on relationships when developing remedies for bystander emotional distress); Goodzeit, Carolyn A., Note, Rethinking Emotional Distress Law: Prenatal Malpractice and Feminist Theory, 63 FORDHAM L. REV. 175, 177 (1994)Google Scholar (noting that “relational” feminism can have direct implications for tort law). See generally CAROL GILLIOAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN's DEVELOPMENT (1982) (developing theory of relational feminism that emphasizes an “ethic of care” in dealing with moral reasoning).

¹⁶⁸ See Hepler, supra note 167, at 72. “Legitimation” is essentially a recognition that a plaintiff's injuries are real and valid, and that society condemns the behavior that caused those injuries. Recognizing claims for NIED is, of course, one way to do this. Id.

¹⁶⁹ “[T]he emotionally traumatized person also needs to know that society views the injury as legitimate. This knowledge is an essential part of the healing process.” Id.

¹⁷⁰ Id. at 83.

¹⁷¹ Id. at 84. See also Goodzeit, supra note 167, at 203-04.

¹⁷² 27 Cal. Rptr. 2d 894, 923 (Cal. Ct. App. 1994). The Bro court also noted that the outrageousness requirement stems from the moral culpability of the defendant's conduct. Id. at 920. The fact that the defendant has acted with a high degree of moral culpability only supports a right of recovery in the direct victim context.

¹⁷³ The claim in Bro concerned the negligent presentation of the child to the parents with the bandaged cut on her cheek. Id. at 897. See supra notes 105-21 and accompanying text.

¹⁷⁴ Familial is used here to denote relationships that are characteristically similar to those found in a family. However, courts should not draw a bright relationship line between blood or marital ties and other kinds of relationships. Drawing a bright line simply undermines the purposes of focusing on relationships, namely that the emotional harm suffered in the context of close relationships is the kind of harm society is prepared to recognize as valid and that defendants can adequately foresee the possibility of harm to this class of persons.

¹⁷⁵ See Leibson, supra note 8, at 195.

¹⁷⁶ For example, the Supreme Court of Wyoming states that “we do not expect everyone to easily overcome the sight of violent injury or death to a loved one, we expect them to cope with the sight of violent injury or death to acquaintances or strangers.” Gates v. Richardson, 719 P.2d 193, 198 (Wyo. 1986). See also Portee v. Jaffee, 417 A.2d 521, 526 (N.J. 1980). In Portee, the court stated that “the interest assertedly injured is more than a general interest in emotional tranquility … . The knowledge that loved ones are safe and whole is the deepest well-spring of emotional welfare.” Id.

¹⁷⁷ See, e.g., Consolidated Rail Corp. v. Gottshall, 114 S. Ct. 2396, 2407 (1994) (citing Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968)).

¹⁷⁸ See, e.g., Dillon, 441 P.2d at 920-21.

¹⁷⁹ 622 A.2d 1279 (N.J. 1993).

¹⁸⁰ Id. at 1286-87.

¹⁸¹ Id.

¹⁸² 636 A.2d 113 (N.J. Super. Ct. App. Div. 1994).

¹⁸³ Id. at 116.

¹⁸⁴ Id.

¹⁸⁵ Id. at 117.

¹⁸⁶ The requirement that a plaintiff be located at or near the scene of the accident is also justified on these grounds. This requirement is rarely an issue because if the plaintiff actually saw the accident, then he must have been at or near its location. However, it suffers from the same defects as the observation requirement. See Comment, supra note 12, at 811 (noting that the proximity factor is rarely an issue in NIED cases).

¹⁸⁷ Even New York's highest court, in its famous criticism of the Dillon approach, recognized that a limitation on the number of plaintiffs in and of itself is not sufficient to warrant a limiting rule. Tobin v. Grossman, 249 N.E.2d 419, 422 (N.Y. 1969).

¹⁸⁸ Indeed, it is difficult to explain any material difference between the two cases in terms of the level of emotional harm suffered, the foreseeability that the mothers would be distressed, or the level of culpable conduct committed by the doctors. Fortunately for the doctors in the Gendek case, they waited until one day after birth before committing malpractice.

¹⁸⁹ See Leibson, supra note 8, at 196.

¹⁹⁰ Although the proximity requirement is not currently the primary factor at issue in most NIED cases, if the observation requirement alone were eliminated then clearly the proximity requirement would become the major limiting device. However, this requirement suffers from all of the weaknesses discussed in connection with the observation requirement. See id.