Hazards: Technology and Fairness (1986)

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HAZARDS EQUITY: A PERSPECTIVE ON THE COMPENSATION SYSTEM 112 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. a duty to do or refrain from doing only that which foreseeably may harm the person or property of another. Put in other words, liability should not extend beyond the consequences that a person reasonably would expect to flow from his or her conduct. The problem—perhaps understandably—lies in the varying judicial interpretations of foreseeability. Foreseeability, after all, is a public- policy mechanism to limit liability. Foreseeability frequently is not an objective conclusion deduced from the facts at hand. Mental Suffering Cases Assume a mother looks out the window of her home and watches her young child begin to cross the street in the cross walk with a green light in his favor. Suddenly a drunk driver drives his automobile through the intersection at high speed and against the red light and runs over and kills the child. Also assume that everyone concedes the mother has a nervous breakdown as a result of witnessing the child's death. Can the mother recover damages for her nervous breakdown from the negligent driver? In California—yes (Dillon v. Legg); in Colorado—an open question (Towns v. Anderson); in New Hampshire—no (Jelley v. La Flame). And so the story goes from state to state. What if the mother (who can recover damages if she witnessed the death in California) did not witness the death, but was told about it by telephone and suffered the same nervous breakdown? She probably could not recover in California or elsewhere. What if the eyewitness in California was a stranger, rather than the mother of the victim, and also suffered a nervous breakdown? The stranger probably could not recover in California or elsewhere (Keeton and Prosser, 1984, pp. 365–366). What if the mother who looked out the window in Colorado and was not allowed a recovery for her mental distress had, in fact, been in the cross walk with her child, but had jumped out of the way and avoided being hit by the car that killed her child? Here, the Colorado court would allow a recovery for her nervous breakdown on the ground that she was in the "apparent zone of danger" (Towns v. Anderson). In each of these situations, the court in question will rationalize its decision in the name of foreseeability. The important point is that the court will not create a duty running from the drunken driver to the mother in absence of a determination, albeit often in nature of lip service, that it was foreseeable that the mother of the child-victim would suffer as a result of the driver's conduct. Fire and Wind Cases The fire and wind cases are another interesting example of irreconcilable conflict in the application of the foreseeability principle in law. New York