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CLOHESSY v. BACHELOR5/21/1996
ts. Many harms are quite literally `foreseeable,' yet for pragmatic reasons, no recovery is allowed. . . . A further inquiry must be made, for we recognize that `duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong,
this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Citations omitted; internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385-86, 650 A.2d 153 (1994).
We believe the time is ripe to recognize a cause of action for bystander emotional distress. Under certain circumstances, which are hereinafter delineated, we conclude that a tortfeasor may owe a legal duty to a bystander. Consequently, a tortfeasor who breaches that duty through negligent conduct may be liable for a bystander's emotional distress proximately caused by that conduct. Accordingly, we now overrule Strazza to the extent that it conflicts with our opinion in this case.
We first conclude, as indicated below with respect to our justification for adopting the reasonable foreseeability theory, that bystander emotional distress is reasonably foreseeable. We further conclude that public policy requires that we recognize this duty owed by a tortfeasor to a bystander. See Bohan v. Last, 236 Conn. 670, 678, 236 A.2d 670 (1996) (change in public policy guided this court in recognizing cause of action against purveyors of alcohol to minors at bar who subsequently cause injury to innocent third parties). In drawing this conclusion, we have carefully weighed various public policy factors, including social and financial costs associated with recognizing this cause of action. We concur with the statement of the New Jersey Supreme Court that "the interest in personal emotional stability is worthy of legal protection against unreasonable conduct. The emotional harm following the perception of the
death or serious injury to a loved one is just as foreseeable as the injury itself, for few persons travel through life alone. Ultimately we must decide whether protecting these emotional interests outweighs an interest against burdening freedom of conduct by imposing a new species of negligence liability. We believe that the interest in emotional stability we have described is sufficiently important to warrant this protection. At the same time we are confident that limiting judicial redress to harm inflicted on intimate emotional bonds by the death or serious injury of a loved one serves to prevent liability from exceeding the culpability of defendant's conduct." Portee v. Jaffee, supra, 84 N.J. 101.
In recognizing this cause of action, we adopt the "reasonable foreseeability" rule subject to the conditions set forth in this opinion. We do so for two principal reasons. First, an important consideration in determining whether a duty exists under our law of negligence has been the rule of foreseeability. RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 385-86. We have long held that the "ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. . . . By that is not meant that one charged with negligence must be fo
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