Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos
![handle is hein.journals/hastlj33 and id is 613 raw text is: Negligent Infliction of Emotional
Distress: Coherence Emerging
from Chaos
By
VIRGINIA E. NOLAN*
and
EDMUND URSIN**
During the past two decades, the California Supreme Court has
led the nation's courts in creating new paths for tort recovery by in-
jured victims.' In the area of negligent infliction of emotional distress,2
however, the court's holdings have appeared chaotic. While the court
has dramatically expanded this tort cause of action, establishing itself
as the leader here, as elsewhere, in tort law, it has also analyzed emo-
tional distress in a manner that flatly contradicts these liability-ex-
panding holdings. The consequence has been confusion among
lawyers, judges, and commentators who perceive a California case law
in disarray. This Article, however, will suggest the means to bring or-
der to this apparent disarray.
In 1968, in Dillon v. Legg,3 California became the first American
jurisdiction to hold that a mother who witnesses the negligent infliction
of death or injury to her child may recover for her emotional trauma
and accompanying physical injury even though she was not within the
Copyright © 1981, by Virginia E. Nolan and Edmund Ursin.
* Professor of Law, University of San Diego. B.S., 1969, Russell Sage College; J.D.,
1972, Albany Law School; LL.M., 1975, George Washington University.
** Professor of Law, University of San Diego. A.B., 1964, J.D., 1967, Stanford
University.
1. See Ursin, Judicial Creativity and Tort Law, 49 GEo. WASH. L. REv. 229, 295
(1981).
2. In this Article, the language of negligence is used because that is the manner in
which this tort cause of action usually is discussed. An action for emotional distress, how-
ever, may arise in circumstances in which the basis of liability is not negligence. See, e.g.,
Shepard v. Superior Court, 76 Cal. App. 3d 16, 142 Cal. Rptr. 612 (1977) (bystander emo-
tional distress recoverable in strict products liability).
3. 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968), overruling Amaya v. Home
Ice, Fuel & Supply Co., 59 Cal. 2d 295, 379 P.2d 513,29 Cal. Rptr. 33 (1963). InAmaya, the
California Supreme Court had adhered to the zone-of-danger rule.
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Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos
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