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CLOHESSY v. BACHELOR5/21/1996
und actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Citations omitted; internal quotation marks omitted.) Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981). On the basis of this concept of foreseeability, we concluded more than fifty years ago that it is "well within the logic of the law that where results which are regarded as proper elements of recovery as a consequence of physical injury are caused by fright or nervous shock due
to negligence, recovery should be permitted." Orlo v. Connecticut Co., supra, 128 Conn. 238. Although in Orlo the plaintiff sought damages as a result of being fearful for his own safety, the sight of a loved one being injured can result in an emotional injury that is no less foreseeable than that experienced as the fear of injury to oneself. "Thus, we see no good reason why the general rules of tort law, including concepts of negligence, proximate cause and foreseeability, long applied to all other types of injury, should not govern . . . ." Dillon v. Legg, supra, 68 Cal.2d 746.
Second, although the zone of danger test has an inherent limitation on liability that is relatively easy to determine, application of that doctrine could result in anomalous situations. For example, varying the factual allegations of this case slightly, assume that Clohessy stayed behind on the steps of the church watching her children, Brendan and Liam, proceed to cross Hillhouse Avenue, when Brendan was struck by the automobile being driven by the defendant. In that situation, Liam could recover, because he was in the zone of danger with his brother, but Clohessy could not. Her emotional trauma, however, would not be any less. Such was the situation in Dillon, wherein the court responded: "In the first place, we can hardly justify relief to the [sibling] for trauma which she suffered upon apprehension of the child's death and yet deny it to the mother merely because of a happenstance that the [sibling] was some few yards closer to the accident. The instant case exposes the hopeless artificiality of the zone-of-danger rule." Id., 733. Recognizing this artificiality, the Supreme Court of Pennsylvania in Sinn v. Burd, 486 Pa. 146, 157, 404 A.2d 642 (1979), concluded that the zone of danger requirement "creates the very evil that the test was designed to eliminate, i.e., arbitrariness," and therefore abandoned it for the foreseeability rule.
In addition to noting the arbitrariness of the zone of danger rule, the Sinn court found a basic flaw in the rule: " xperience has taught us that the zone of danger requirement can be unnecessarily restrictive and prevent recovery in instances where there is no sound policy basis supporting such a result. It has unquestionably not been effective in every instance of assuring that one may `seek redress for every substantial wrong.' The restrictiveness of the zone of danger test is glaringly apparent where it is allowed to deny recovery to a parent who has suffered emotional harm from witnessing a tortious assault upon the person of his or her minor child. A majority of the commentators and a growing number of jurisdictions have considered this problem in recent years and have concluded that it is unreasonable for the zone of danger requirement to exclude recovery in such cases. This new awareness of the unfairness of the zone of danger requirement in these cases is based upon the implicit acceptance that the emotional impact upon a parent witnessing the kil
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