Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
Why did the Mitchell court hold that there was no common law cause of action for
negligent infliction of emotional distress, absent some physical impact? Recall that the tort of
assault does not require a showing of physical impact.
2. A gender bias? Plaintiffs in early negligent infliction of emotional distress cases were
often women. Did the common law’s exclusion of stand-alone emotional distress damages
indicate a bias against women? According to Professors Martha Chamallas and Linda Kerber, it
did. The early doctrine of emotional distress, they argue, “marginaliz[ed] . . . the harm suffered
by women.” In particular, Professors Chamallas and Kerber note that
[t]he law of torts values physical security and property more highly than emotional
security. . . . This apparently gender-neutral hierarchy of values has privileged men,
as the traditional owners and managers of property, and has burdened women, to
whom the emotional work of maintaining human relationships has commonly been
assigned. The law has often failed to compensate women for recurring harms—
serious though they may be in the lives of women—for which there is no precise
masculine analogue. This phenomenon is evident in the history of tort law’s
treatment of fright-based physical injuries, a type of claim historically brought more
often by female plaintiffs. . . . These claims were classified in the law as emotional
harms and a number of special doctrinal obstacles were created to contain recovery
in such cases. . . . The inequity of the doctrines comprising the law of fright not
surprisingly reflected and reinforced inequities present in the larger social and
cultural settings.
Martha Chamallas & Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88
MICH. L. REV. 814, 814, 864 (1990). Some scholars object that the difficulty of discerning
causation in such cases is a better explanation for the doctrine. See Gary T. Schwartz, Feminist
Approaches to Tort Law, 2 THEORETICAL INQUIRIES L. 175, 203 (2001).
3. Narrower tests. Is there a narrower way to accomplish the goals articulated by the
Mitchell court? Another case involving a woman plaintiff raised that question some seventy years
after Mitchell.
Falzone v. Busch, 214 A.2d 12 (N.J. 1965)
PROCTOR, J.
Charles Falzone, was standing in a field adjacent to the roadway when he was struck and
injured by defendant’s negligently driven automobile. The second count alleges that the plaintiff,
Mabel Falzone, wife of Charles, was seated in his lawfully parked automobile close to the place
where her husband was struck and that the defendant’s negligently driven automobile “veered
across the highway and headed in the direction of this plaintiff,” coming “so close to plaintiff as to
put her in fear for her safety.” As a direct result she became ill and required medical attention.
There is no allegation that her fear arose from apprehension of harm to her husband.
The Law Division granted the defendant’s motion for summary judgment on the second . .
402