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CLOHESSY v. BACHELOR5/21/1996
ble foreseeability." We now examine the respective merits of each of these schools of thought.
A
In 1965, six years after Strazza and three years before Dillon, the American Law Institute adopted §§ 313
and 436 of the Restatement (Second) of Torts (1965), which generally allow recovery for emotional distress suffered by a bystander under the zone of danger theory. Simply stated, the zone of danger rule "allows one who is himself or herself threatened with bodily harm in consequence of the defendant's negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family . . . ." Bovsun v. Sanperi, 61 N.Y.2d 219,
228, 461 N.E.2d 843, 473 N.Y.S.2d 357 (1984). The rule is premised on the "concept that by unreasonably endangering the plaintiff's physical safety the defendant has breached a duty owed to him or her for which he or she should recover all damages sustained including those occasioned by witnessing the suffering of an immediate family member who is also injured by the defendant's conduct." Id., 229; 2 Restatement (Second), supra, § 313. Although permitting recovery for damages on a claim of bystander emotional distress, advocates of the zone of danger rule argued that " se of the [rule] . . . mitigates the possibility of unlimited recovery . . . by restricting liability in a much narrower fashion than does the Dillon rule." Bovsun v. Sanperi, supra, 229. The New York Court of Appeals has further restricted liability under the zone of danger rule by holding that " ecovery of damages by bystanders for the negligent infliction of emotional distress should be limited only to the immediate family." Trombetta v. Conkling, 82 N.Y.2d 549, 551, 626 N.E.2d 653, 605 N.Y.S.2d 678 (1993).
Prior to the adoption of § 313 of the second Restatement of Torts, the first Restatement suggested, in its comments, a reasonable foreseeability rule. Indeed, as the Supreme Judicial Court of Massachusetts pointed out, the addition of the zone of danger test in § 313(2) of the Restatement (Second) of Torts "was recommended with reluctance by the Reporter (Dean Prosser) and the advisers (Restatement [Second] of Torts 9-11 [Tent. Draft No. 5, 1960]), but the recommendation was thought to be compelled by the absence of then recent authority in support of a contrary view. . . . As a result of adding § 313(2), a caveat appearing in the first Restatement of Torts was deleted. That caveat had left open the question whether a person might be liable `to the parent or spouse who witnesses the peril or harm of the child or spouse and thereby suffers anxiety or shock' causing bodily harm to the parent or spouse. Restatement of Torts § 313, at 851 (1934)." (Citation omitted.) Dziokonski v. Babineau, 375 Mass. 555, 563, 380 N.E.2d 1295 (1978).
B
Dillon was decided three years after the American Law Institute had adopted the zone of danger limitation on bystander emotional distress set forth in §§ 313 and 436 of the Restatement (Second), supra. Dillon changed the landscape for claims of bystander emotional distress. As previously noted, the California Supreme Court decided Dillon based upon general principles of foreseeability, with its limitations to be decided on a case-by-case basis. The three factors in Dillon were not conditions or limitations, but rather circumstances to consider in determining whether the emotional injury was reasonably foreseeable. In 1989, however, a majority of the California Supreme Court in Thing v. La Chusa, 48 Cal.3d 644, 771 P.2d 814, 257 Cal.Rptr. 865 (1989), found that recovery of bystander emotional distress based upon "reason
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