Document Type


Publication Date

Fall 2004


This article examines negligent infliction of emotional distress, one of the most controversial and least uniform fields of tort law. A review of the judicial and scholarly literature has shown that traditional tort analysis fails. In its stead, the common law has not found an alternative theory of liability that balances the competing interests. Rather, the approach has been to create rules of law based on probabilistic templates. Its dual purpose is to preclude individualized analysis and to limit aggregate liability. This article rejects the current doctrines as inherently arbitrary and proposes a complete overhaul of the law. To find a more principled solution, the notion of duty must be reconceptualized beyond arbitrary divisions and foreseeability of risk. Because of the unpredictable nature of mental injuries and its consequences on the application of the rules of law, the concepts of duty and foreseeability must be distinguished in finer gradations. The formulation of duty should be a dynamic calculus that considers the plaintiff's interests, the defendant's culpability, and the social policy considerations. When such analysis is engaged, it is entirely possible for a more principled theory to coexist with the practical policy of limiting liability. This approach requires that the rules of liability and damage be adjusted to reflect the interests and culpabilities at issue.

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