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

Witt & Tani, TCPI 8. Duty Problem
4. Condominiums, co-ops, and housing developments. What about housing collectives in
which tort duties among the members could be displaced by contract? In at least some
condominium developments, the practice is to use homeowners’ insurance as a substitute for tort
causes of action. Consider the following model condominium document:
1.c. Each Unit Owner and Executive Board hereby waives and releases any and all
claims which he or it may have against any other Unit Owner, the Association, the
Executive Board and members thereof, the Declarant and their respective
employees and agents, for damage to the Common Elements, the Units, or to any
personal property located in the Units or Common Elements, caused by fire or other
casualty or any act or omission of any such party to the extent that such damage is
covered by fire or other form of hazard insurance.
RONALD B. GLAZER, PENNSYLVANIA CONDOMINIUM LAW AND PRACTICE art. 15 (3d ed. 1995).
C. Negligent Infliction of Emotional Distress
Recall that in Chapter 1 we encountered the tort of assault, which is a centuries-old cause
of action for intentional infliction of emotional harm, namely fear of an unlawful contact. We
also encountered the newer tort of intentional infliction of emotional distress, which allows
recovery even in the absence of apprehension of contact. What happens when emotional harm
arises accidentally?
Mitchell v. Rochester Railway, 45 N.E. 354 (N.Y. 1896)
MARTIN, J.
The facts in this case are few and may be briefly stated. On the first day of April, 1891,
the plaintiff was standing upon a crosswalk on Main street in the city of Rochester, awaiting an
opportunity to board one of the defendant’s cars which had stopped upon the street at that place.
While standing there, and just as she was about to step upon the car, a horse car of the defendant
came down the street. As the team attached to the car drew near, it turned to the right and came
so close to the plaintiff that she stood between the horses’ heads when they were stopped.
She testified that from fright and excitement caused by the approach and proximity of the
team she became unconscious, and also that the result was a miscarriage and consequent illness.
Medical testimony was given to the effect that the mental shock which she then received was
sufficient to produce that result.
Assuming that the evidence tended to show that the defendant’s servant was negligent in
the management of the car and horses, and that the plaintiff was free from contributory
negligence, the single question presented is whether the plaintiff is entitled to recover for the
defendant’s negligence which occasioned her fright and alarm, and resulted in the injuries already
mentioned. While the authorities are not harmonious upon this question, we think the most
reliable and better considered cases, as well as public policy, fully justify us in holding that the
plaintiff cannot recover for injuries occasioned by fright, as there was no immediate personal
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