Direct Actions for Emotional Harm: Is Compromise Possible?

While most courts and commentators acknowledge that emotional injury resulting from negligence may merit compensation, they share the conviction that some limits must be placed on such claims. They identify two basic policy rationales as the justifications for limiting claims for emotional harm: (1) the desire to ensure that a defendant\u27s liability for negligence is not disproportionate to his or her fault, and (2) the desire to prevent litigation of trivial or fraudulent claims. This Article argues that the two rules most frequently applied by courts to effectuate limitations on recovery—the zone-of-danger rule and the foreseeability-plus-serious-injury rule—suffer from serious deficiencies. The Article considers an approach suggested by the California Supreme Court\u27s decision in Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. There, the court utilized many of the same rules applicable in tort actions for personal injury and property damage, concluding that these rules struck an acceptable and logical balance between the conflicting goals of limitation and compensation. The Article evaluates the ramifications of such an approach and concludes that the duty rules identified by the court would provide a fair and workable framework for determining the class of plaintiffs permitted to sue for negligently inflicted emotional harm. The Article cautions, however, that even if the duty rules discussed are utilized, courts will continue to confront difficult policy questions in some types of cases