Statement of the Case: Part III B

Unlike stand-alone claims for negligently inflicted emotional distress, claims for pain and suffering associated with, or “parasitic” on, a physical injury are traditionally compensable. The Restatement (Second) of Torts §456 (1963–1964) (hereinafter Restatement) states the general rule:

“If the actor’s negligent conduct has so caused any bodily harm to another as to make him liable for it, the actor is also subject to liability for “(a) fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct which causes it . . . .” (Emphases added.)

A plaintiff suffering bodily harm need not allege physical manifestations of her mental anguish. Id., Comment c. “The plaintiff must of course present evidence that she has suffered, but otherwise her emotional distress claims, in whatever form, are fully recoverable.” D. Dobbs, Law of Torts 822 (2000).

By 1908, when the FELA was enacted, the common law had evolved to encompass apprehension of future harm as a component of pain and suffering. The future harm, genuinely feared, need not be more likely than not to materialize. See Minneman, Future Disease or Condition, or Anxiety Relating Thereto, as Element of Recovery, 50 A. L. R. 4th 13, 25, §2[a] (1986) (mental anguish related to physical injury is recoverable even if “the underlying future prospect is not itself compensable inasmuch as it is not sufficiently likely to occur”).

Physically injured plaintiffs, it is now recognized, may recover for “reasonable fears” of a future disease. Dobbs, supra, at 844. As a classic example, plaintiffs bitten by dogs succeeded in gaining recovery, not only for the pain of the wound, but also for their fear that the bite would someday result in rabies or tetanus. The wound might heal, but “[t]he ghost of hydrophobia is raised, not to down during the life-time of the victim.” The Lord Derby, 17 F. 265, 267 (ED La. 1883).8

8See also Gamer v. Winchester, 110 S. W. 2d 1190, 1193 (Tex. Civ. App. 1937) (rabies, lockjaw, blood poisoning); Serio v. American Brewing Co., 141 La. 290, 299, 74 So. 998, 1001 (1917) (hydrophobia); Ayers v. Macoughtry, 29 Okla. 399, 402, 117 P. 1088, 1090 (1911) (fear of rabies); Buck v. Brady, 110 Md. 568, 573, 73 A. 277, 279 (1909) (hydro-phobia);

Heintz v. Caldwell, 9 Ohio Cir. Dec. 412 (1898) (hydrophobia and lockjaw); Warner v. Chamberlain, 12 Del. 18, 21, 30 A. 638, 639 (1884) (hydrophobia); Godeau v. Blood, 52 Vt. 251 (1880) (apprehension of poison from dog bite).

Courtesy of Supreme Court of the United States NORFOLK & WESTERN RAILWAY CO. v. AYERS ET AL