Molien v. Kaiser Foundation Hospitals: California's New Tort of Negligent Infliction of Serious Emotional Distress
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Molien v. Kaiser Foundation Hospitals:
California's New Tort of Negligent
Infliction of Serious Emotional
Distress
I. INTRODUCTION
Legal history shows that artificial islands of exceptions, created
from the fear that the legal process will not work, usually do
not withstand the waves of reality and, in time, descend into
oblivion. '
Whether the law should protect emotional tranquility has long
been a subject of controversy in state courts across the nation.2 It
has been suggested that protection should apply to any highly
unpleasant psychic reaction, including fright, grief, shame, humil-
iation, embarassment, anger, chagrin, disappointment, worry and
nausea resulting from the negligent conduct of a defendant.3
However, the courts have had great difficulty confronting such
forms of emotional distress4 because of the problems inherent in
defining workable parameters for a potentially unlimited variety
of claims.5 In the wake of these uncertainties the California
Supreme Court decision of Molien v. Kaiser Foundation Hospitals6
has defined a new cause of action in the tort field. A plaintiff may
now recover solely for the negligent infliction of serious emotional
1. Dillon v. Legg, 68 Cal. 2d 728, 747, 441 P.2d 912, 925, 69 Cal. Rptr. 72, 85
(1968) [hereinafter cited as Dillon].
2. See Comment, Negligentiy Inflicted Mental Distress, The Case for an In-
dependent Tort, 59 GEO. L.J. 1237 (1971) [hereinafter cited as Independet Tort]; Ma-
gruder, Mental and Emotional Disturbance in the Law of Torts, 49 HARV. L. REV.
1033, 1048 (1936) [hereinafter cited as Magruder]; W. PROSSER, THE LAW OF TORTS
§§ 42 and 43 (4th ed. 1971) [hereinafter cited as PROSSER].
3. RESTATEMENT (SECOND) OF ToRTs § 46, comment J at 77-78 (1965). To
date, independent legal protection for negligent infliction of emotional distress has
been recognized in Hawaii and California. See Rodrigues v. State, 52 Haw. 156, 472
P.2d 509 (1970) [hereinafter cited as Rodrigues]; Molien v. Kaiser infra note 6.
4. Emotional distress may be used interchangeably with other terms. See Cal.
Jury Instns., Clv. Supp. Service, pamph. No. 2, No. 12.72 at 43 (1976), where emo-
tional distress is defined as various other terms such as mental distress, mental suf-
fering, or mental anguish. It includes all highly unpleasant mental reactions such as
fright, horror, grief, shame, humiliation, disappointment and worry.
5. See PROSSER, supra note 2 § 54, at 326.
6. 27 Cal. 3d 916, 616 P.2d 813, 167 Cal. Rptr. 831 (1980) [hereinafter cited as
Molien]](ViewImageLocal?handle=hein.journals/cwlr18&div=15&collection=&method=preview&ext=.png&size=3)
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Molien v. Kaiser Foundation Hospitals: California's New Tort of Negligent Infliction of Serious Emotional Distress
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