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

Witt & Tani, TCPI 8. Duty Problem
were] entitled to sue for the cancer, the funds available for compensation in all likelihood will
have disappeared, depleted by verdicts awarding damages for unrealized fear, verdicts the
majority is so willing to embrace.” Id. at 168.
Justice Breyer added a separate dissenting opinion, emphasizing that “the Second
Restatement neither gives a definition of the kind of ‘emotional disturbance’ for which recovery is
available nor otherwise states that recovery is available for any kind of emotional disturbance
whatsoever.” Id. at 182.
The underlying history underscores the openness of the legal question and the
consequent uncertainty as to the answer. When Congress enacted the Federal
Employers’ Liability Act (FELA) in 1908, the kinds of injury that it primarily had
in mind were those resulting directly from physical accidents, such as railway
collisions and entanglement with machinery.
“Given the legal uncertainty,” Justice Breyer wrote, “this Court, acting like any court interpreting
the common law . . . should determine the proper rule of law through reference to the underlying
factors that have helped to shape related ‘emotional distress’ rules. Those factors argue for the
kind of liability limitation that Justice Kennedy has described.” Id. at 182-84.
4. Whither negligent infliction of emotional distress? What is the current state of play in the
oscillation of crystals and mud in the law of negligently inflicted emotional distress? Where do
Dillon, Buckley, and Ayers leave the law in this area?
D. To Whom Does a Defendant Owe a Duty?
1. The Duty Debate (Part 1)
Now that we have seen a few examples of the duty analysis in action, it is worth stepping
back and taking a brief look at the theoretical debates that scholars have carried on about the
subject. We will return to these debates at the end of this section, but for now consider a classic
statement from one of the leading twentieth-century critics of the duty inquiry followed by a more
recent defense of the duty idea from two leading torts scholars from closer to our own time:
William L. Prosser, Handbook of the Law of Torts § 31, at 180, 185 (1941)
The statement that there is or is not a duty [of care] begs the essential question—
whether the plaintiff’s interests are entitled to legal protection against the
defendant’s conduct. . . . It is a shorthand statement of a conclusion, rather than an
aid to analysis in itself. . . . ‘[D]uty’ is not sacrosanct in itself, but only an expression
of the sum total of those considerations of policy which lead the law to say that the
particular plaintiff is entitled to protection. . . . The real problem, and the one to
which attention should be directed, would seem to be one of social policy: whether
the defendants in such cases should bear the heavy negligence losses of a complex
416