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CLOHESSY v. BACHELOR5/21/1996
able foreseeability"
required limitations. The court in Thing was concerned with the broad scope of liability under the foreseeability rule: " t is clear that foreseeability of the injury alone is not a useful `guideline' or a meaningful restriction on the scope of the [bystander emotional distress] action. The Dillon experience confirms, as one commentator observed, that ` oreseeability proves too much. . . . Although it may set tolerable limits for most types of physical harm, it provides virtually no limit on liability for nonphysical harm.' Rabin, [`Tort Recovery for Negligently Inflicted Economic Loss: A Reassessment,' 37 Stan. L. Rev. 1513, 1526 (1985)]. It 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 injury. In order to avoid limitless liability out of all proportion to the degree of a defendant's negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread, the right to recover for negligently caused emotional distress must be limited." Thing v. La Chusa, supra, 663-64. The California Supreme Court concluded that "drawing arbitrary lines is unavoidable if we are to limit liability and establish meaningful rules for application by litigants and lower courts>." Id., 666.
Accordingly, in Thing, the court held "that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress — a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances." Id., 667-68.
A number of jurisdictions have adopted the Thing guidelines in an effort to limit the scope of the defendant's duty to third party bystanders. See Cameron v. Pepin, 610 A.2d 279, 284 (Me. 1992) ("defendant's duty should be limited to the emotional vulnerability that arises in parents upon actually witnessing their child receiving an injury "); Nugent v. Bauermeister, 195 Mich. App. 158, 161, 489 N.W.2d 148 (1992) (limited recovery to immediate family members as opposed to close friends); Marchetti v. Parsons, 638 A.2d 1047, 1052 (R.I. 1994) (" e find the reasoning of the California Supreme Court [in Thing] persuasive and follow its lead in modifying the Dillon standard that we [previously] followed"); Heldreth v. Marrs, 188 W. Va. 481, 488, 425 S.E.2d 157 (1992) (" aving the benefit of the Thing court's hindsight, we too adopt the requirement that a plaintiff in a negligent infliction of emotional distress action be present at the scene of the injury-producing event at the time it occurs and is aware that it is causing injury to the victim").
Nevertheless, a number of jurisdictions continue to apply the foreseeability rule as set forth in Dillon, rejecting completely or in part the limitations subsequently established by the court in Thing. See Beck v. Dept. of Transportation & Public Facilities, 837 P.2d 105, 110 (Alaska 1992) (retained liberal interpretation of Dillon guidelines and rejected restrictive approach taken by court in Thing regarding contemporaneous observation requirement); Dunphy v. Gregor, 136 N.J. 99, 106-108, 642 A.2d 372 (1994) (noting that it previously narrowed Dillon, the court rejected "a departure from our accustomed application of the traditional principles of tort law
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