Subsequent Court Decisions Impact on Avery

The later Second Restatement reflects subsequent court decisions that liberalized this rule—(in the earlier Restatement’s words) by extending recovery beyond “physical harm” produced by “emotional disturbance,” and by removing the words “similar and immediate.” §456. Linguistically speaking, these changes to the Restatement might reflect judicial extension of the scope of “emotional disturbance” far beyond “expectable” or “intended” fears that normally accompany, say, a collision or other machinery-related accident, Second Restatement §905, Comment e, p. 458 (1977). They Restatement’s examples resolve the problem. might reflect judicial extension of liability to the kind of “brooding, contemplative fear” at issue here, ante, at 7 (KENNEDY, J., concurring in part and dissenting in part). But they also might reflect more limited judicial holdings—say, holdings that extend liability to fears that arise directly from the compensable injury itself (e.g., the fear of “shortness of breath,” App. 298–299) or which arise directly from the conduct that caused the injury (say, the fear of inhaling asbestos fibers in a visible cloud of dust). The Second Restatement does not say.

Nor do the Second Restatement’s examples resolve the problem. The most expansive example of recovery involves not worry connected with toxic torts or the like, but a considerably more restricted, directly connected worry “about the securing of shelter for [one’s self] and family” after “wanto[n]” eviction—the wantonness of the eviction being a special factor warranting particularly broad recovery. Second Restatement §905, Illustration 8, at 458; see also Id., §905, Comment e, at 458.

Most important, different courts have come to different conclusions about recovery for fear of cancer itself (even when triggered by physical injury). The Restatements are not statutes. They simply reflect predominant judicial views. And the variety of answers courts have given to the question at issue here demonstrates that courts have not reached a consensus. See ante, at 12–14, and n. 11 (majority opinion); ante, at 8–9 (opinion of KENNEDY, J.).

Given the legal uncertainty, this Court, acting like any court interpreting the common law, see ante, at 12 (opinion of KENNEDY, J.), 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, ante, at 12.