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26 Suffolk U. L. Rev. 79 (1992)
Safe Haven for a Troubled Tort: A Return to the Zone of Danger for the Negligent Infliction of Emotional Distress

handle is hein.journals/sufflr26 and id is 99 raw text is: SAFE HAVEN FOR A TROUBLED TORT: A RETURN TO THE ZONE OF DANGER FOR THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS One who witnesses a severe injury to a family member, or who later learns of such a tragedy, may suffer emotional distress long after the vic- tim's wounds have healed or the funeral service has ended. A person who observes tragedy befall a complete stranger could also suffer long-lasting trauma and emotional scars. There is little, if any, judicial debate over these realities. There is conflict, however, over when such emotionally scarred individuals, otherwise unscathed by a perpetrator's negligent ac- tions, should recover for their distress. Because a single tragedy may un- leash a wave of emotional distress extending to virtually anyone connected in some way with a victim, determining the extent of a defendant's liability strains the limits of the traditional negligence concepts of duty, foreseeabil- ity, and causation. Responding to tragic events in certain cases, several courts fashioned liberal rules permitting a cause of action for negligent infliction of emo- tional distress where the zone of danger rule would otherwise preclude re- covery. While these alternatives to the zone of danger rule may seemingly achieve justice in certain situations, courts fashioned these rules such that they either provide no limitations to guide juries in determining liability, or narrowly restrict recovery to family members of victims. The zone of dan- ger rule balances these two extremes by means of a single, easily under- stood threshold requirement: to assert a claim for negligent infliction of emotional distress, courts must first find that a defendant's actions might reasonably have placed the plaintiff in fear of physical injury. The zone of danger rule reasonably restricts liability, provides a yardstick for juries, and does not favor one plaintiff over another merely based upon the first plaintiff's familial relationship with the victim. Although it may occasion- ally leave a seemingly deserving plaintiff without recovery, the zone of dan- ger rule far surpasses other approaches by providing a practical and equitable means of determining liability in a potentially uncontrollable area of negligence law. I. INTRODUCTION In 1984, two passengers on an aerial tramway allegedly suffered emo- tional distress from witnessing a piece of the tram car crash through the tram's skylight, killing another passenger.1 In the 1990 case of Ballinger I. See Ballinger v. Palm Springs Aerial Tramway, 269 Cal. Rptr. 583, 584 (Cal. Ct. App. 1990) (discussed infra at notes 129-36 and accompanying text).