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Canfield, 36 Minn. Knight, 9 H. Railway Co. The number of actions brought is very great. This should lead courts well to consider the grounds on which claims for compensation proper ly rest, and the necessary limitations of the right to recover. We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and, if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without.

The logical vindication of this rule is that it is unreasonable to hold persons who are merely negligent bound to anticipate and guard against fright and the consequences of fright, and that this would open a wide door for unjust claims, which could not successfully be met. These views are supported by the following decisions: Commissioners v. Coultas, 13 App. App; Dec. In the following cases a different view was taken; Bell v. It is hardly necessary to add that this decision does not reach those classes of actions where an intention to cause mental distress or to hurt the feelings is shown, or is reasonably to be inferred, as, for example, in cases of seduction, slander, malicious prosecution, or arrest, and some other.

Nor do we include cases of acts done with gross carelessness or recklessness showing utter indifference to such consequences, when they must have been in the actor' s mind. Lennow and Fillebrown v. Hoar, already cited; Meagher v. Driscoll, 99 Mass. In the present case no such considerations entered into the rulings or were presented by the facts. The entry therefore must be: Exceptions sustained. The drilling generated dust containing asbestos fibers to which Carter and Wilson were exposed.

They had no protective gear to prevent them from inhaling the dust. Carter worked on the project from four to six weeks, and Wilson worked on it about two weeks. Not until the work was almost complete did the laboratory manager warn Carter and Wilson of the asbestos, at which point they stopped work on the project. Temple-Inland then tested and decontaminated the lab.

Some eighteen months later Carter and Wilson were examined by Dr. Daniel Jenkins, to whom they had been referred by their attorney. Although Dr. Jenkins concluded that neither Carter nor Wilson had any asbestos-related disease, they sued Temple-Inland for mental anguish damages caused by its having negligently exposed them to asbestos fibers.

Carter and Wilson also alleged that Temple-Inland had failed to develop a hazard communication program as required by federal regulation 3 to protect persons working on its premises. Jenkins testified at his deposition that Wilson complained of shortness of breath on exertion, that Wilson' s X-ray showed some bilateral pleural thickening, and that his pulmonary function report suggested some obstruction in the small peripheral airways.

According to Dr. Jenkins, Wilson' s shortness of breath and pleural thickening were possibly related to his obesity, and the pleural thickening could have been related to a history of asbestos exposure predating the Temple-Inland work. Jenkins did not attribute any of Wilson' s symptoms to his exposure to asbestos on Temple-Inland' s premises and agreed that that exposure was probably too recent to have resulted in any of Wilson' s conditions, given the long latency period ordinarily involved in asbestosrelated diseases.

Carter' s X-ray showed no abnormalities whatever, and his pulmonary function was close to normal. Jenkins thus concluded that Wilson and Carter suffered from no disease as a result of their exposure to asbestos and that they were not disabled. In their depositions Carter and Wilson reported no other symptoms.

Jenkins, however, insisted that Wilson and Carter had been injur ed by their exposure to asbestos and probable inhalation of asbestos fibers at the Temple-Inland lab. He estimated that the chances of their developing a disease as a result had increased from one in a million, which he estimated to be the risk that a person would ever develop a disease from asbestos exposure not occupationally related, to about one in , for the next ten or fifteen years, and as much as one in over twenty or thirty years.

Based on the depositions of Dr. Jenkins, Carter, Wilson, and others, Temple-Inland moved for summary judgment on the ground that Carter and Wilson had not suffered any injury for which they could recover mental anguish damages.

Temple-Inland argued that plaintiffs' claims for fear of the mere possibility of developing some disease in the future amounted to nothing more 2 3 42 Tex. The sole issue in this case is whether a person who has been exposed to asbestos but does not have an asbestos-related disease may recover damages for fear of the possibility of developing such a disease in the future. The district court granted summary judgment for the defendant on plaintiff' s claims for actual and punitive damages.

A divided court of appeals reversed only on the actual damages claim. I S. Plaintiffs cited 29 C. Temple-Inland also contended that as a matter of law it had not been grossly negligent. The trial court granted summary judgment. The court of appeals affirmed the judgment denying punitive damages but, by a divided vote, reversed the judgment on plaintiffs' actual damage claims. Fibreboard Corp. CARTER II The summary judgment record establishes that Carter and Wilson were exposed to asbestos at Temple-Inland' s lab but do not presently suffer from any asbestos-related disease, and that while their risk of developing such a disease was increased by their exposure to asbestos, that risk is still no higher than one chance in a hundred over twenty to thirty years.

The issue is whether they can recover for their fear that they will someday develop such a disease from their work at Temple-Inland' s lab. A Carter and Wilson first argue that they are entitled to recover mental anguish damages even if they sustained no physical injury, as long as their fear of developing some asbestos-related disease is reasonable. This argument conflicts with our decision in Boyles v. Nor is mere fright the subject of damages.

City of Pasadena, S. Oglesby, S. Wechter, S. Atkinson, S. Trott, 86 Tex. Western Union Tel. Wyatt, S. F or many breaches of legal duties, even tortious ones, the law affords no right to recover for resulting mental anguish. Moreover, a landowner' s tortious breach of his duty to invitees--like Temple-Inland' s negligently exposing Carter and Wilson to asbestos--is not a wrong for which mental anguish is compensable absent physical injury.

Accordingly, Carter and Wilson cannot recover mental anguish damages absent physical injury. B Alternatively, Carter and Wilson argue that they have been physically injured because of their exposure to asbestos fibers. Carter' s and Wilson' s testimony, as well as that of Dr. Jenkins, supports the inference that they inhaled asbestos fibers in the lab, and Temple-Inland has not refuted this inference. Also, D r.

Jenkins' testimony that plaintiffs were physically injured by the inhalation of asbestos is uncontradicted in the record. We therefore assume, as we must for summary judgment purposes, that Carter and Wilson were physically injured by their exposure to asbestos on 15 16 17 Motor Express, Inc.

Rodriguez, S. Likes, S. Motor Express, S. Temple-Inland' s premises, so that they reasonably fear developing some asbestos-related disease. The question comes to this: given that plaintiffs inhaled asbestos fibers, can they recover mental anguish damages for their increased risk and reasonable fear of possibly developing asbestos-related diseases that they do not currently have and may never have? While the existence of physical injury is ordinarily necessary for recovery of mental anguish damages except in those instances already mentioned, such injury may not be sufficient for recovery of mental anguish damages when the injury has not produced disease, despite a reasonable fear that such disease will develop.

As we recently observed in City of Tyler v. Gottshall, U. Watkins v. Nuclear Utility Services, Inc. N one of them was decided by the highest court of the relevant State. But see Farrall v. But cf. Clean Air Sys. Jacquays Mining Corp. Asbestos Corp. Cox, So. Bailey, S. Abbott Labs, Mass. Pacor, Inc. Joy Tech. Raymark Indus. Johns-Manville Sales Corp. Johns-Manville Corp. Kansas City So. CARTER accompanying mental anguish damages, even if the mental anguish is not itself physically manifested.

A person exposed to asbestos can certainly develop serious health problems, but he or she also may not. The difficulty in predicting whether exposure will cause any disease and if so, what disease, and the long latency period characteristic of asbestos-related diseases, make it very difficult for judges and juries to evaluate which exposure claims are serious and which are not.

This difficulty in turn makes liability unpredictable, with some claims resulting in significant recovery while virtually indistinguishable claims are denied altogether. S o me c la i m an t s w ou l d i n e v it a b l y be overcompensated when, in the course of time, it happens that they never develop the disease they feared, and others would be undercompensated when it turns out that they developed a disease more serious even than they feared.

Suits for mental anguish damages caused by exposure that has not resulted in disease would compete with suits for manifest diseases for the legal system' s limited resources. If recovery were allowed in the absence of present disease, individuals might feel obliged to bring suit for such recovery prophylactically, against the possibility of future consequences from what is now an inchoate risk. The question is not, of course, whether Carter and Wilson have themselves suffered genuine distress over their own exposure.

We assume they have, and that their anxiety is reasonable. The 27 City of Likes, S. Sepulveda, S. Haussecker, S. DAMAGES question, rather, is whether this type of claim--for fear of an increased risk of developing an asbestos-related disease when no disease is presently manifest--should be permitted, regardless of any individual plaintiff' s circumstances, when the effort in determining the genuineness of each claim and assuring appropriate recovery is beset with the difficulties we have described.

The jury found that plaintiffs' exposure had not caused them any disease but had caused them mental anguish. The Fifth Circuit concluded that Texas law, which governed the case, allowed recovery of mental anguish damages in such circumstances. Pool, 32 and a prior decision of the Circuit, Dartez v. Rather, it has developed recovery-permitting categories the contours of which more distantly reflect this, and other, abstract general policy concerns. T he point of such categorization is to deny courts the authority to undertake a case by case examination.

Assuming that that proposition is correct, something we do not decide her e, Pool does not support Watkins' conclusion that a person who has no asbestos-related disease can likewise recover for fear of possible future disease. Dartez does appear to support Watkins' conclusion, but its reasoning is flawed. The plaintiff in Dartez claimed mental anguish damages for his increased risk of developing cancer or mesothelioma due to his exposure to asbestos. The court noted that no Texas court had permitted such recovery but concluded that Texas law would allow it based on a number of analogous cases.

In each of the Texas cases the court cited, however, plaintiff suffered present and manifest physical injuries as well as a fear of future complications as a result. But the plaintiff in Gideon suffered from asbestosis and claimed a fear of developing mesothelioma. Neither Gideon nor any Texas court 35 id. Noel, S. Wood, S. Winchester, S. O' Brien, 18 Tex. McSwain, 55 Tex. Watkins does not correctly state Texas law, nor did it attempt to analyze the development of the common law as Buckley did.

III We add this cautionary note. The principles we have used to deny recovery of mental anguish damages for fear of the possibility of developing a disease as a result of an exposure to asbestos may not yield the same result when the exposure is to some other dangerous or toxic element. Exposure to asbestos, a known carcinogen, is never healthy but fortunately does not always result in disease. The consequences of exposure to other toxic materials vary, and while the analysis in other circumstances should be the same as that which we have employed here, the outcomes may be different.

Commentators have noted the unique characteristics of asbestos and the difficulties of applying traditional tort principles: George L. On August 6, , another patient, also named Emma Johnson, died. Later that day, the hospital sent a telegram addressed to Nellie Johnson of Albany, claimant' s aunt and the sister of the living Emma Johnson. M etro-North Commuter R. An undertaker was engaged; the body of the deceased Emma Johnson was released by the hospital and taken to Albany that night.

A wake was set for August 11, with burial the next day. In the interim claimant incurred expenses in preparing the body for the funeral, and in notifying other relatives of her mother' s death. On the afternoon of the wake, claimant and her aunt went to the funeral home to view the body. Nellie Johnson also expressed doubt that the corpse was that of her sister Emma.

Thereafter the doubts built up, and upon returning that evening for the wake, claimant, in a state of extreme distress, examined the corpse more closely and verified that it was not that of her mother. The hospital was called, and the mistake confirmed. Claimant' s mother was alive and well in another wing of the hospital. Later that evening at the hospital, the deputy director, with the authorization of the director, admitted the mistake to claimant and her aunt.

After this incident, claimant did not work in her employment for more than 11 days. She seemed to be under a considerable amount of pressure. She cried easily when relating events that occurred. I though that she spoke rather rapidly and obviously perspiring. H er expert, as indicated, testified that she showed objective manifestations of that condition. One to whom a duty of care is owed, it has been held, may recover for harm sustained solely as a result of an initial, negligently-caused psychological trauma, but with ensuing psychic harm with residual physical manifestations Battalla v.

State of New York, 10 N. Galluchio, 5 N. Grossman, 24 N. Weicker v. Weicker, 22 N. Contemporaneous or consequential physical harm, coupled with the initial psychological trauma, was, however , thought to provide an index of reliability otherwise absent in a claim for psychological trauma with only psychological consequences. There have developed, however, two exceptions. Speight, U. The Federal rule does, however, permit recovery where the psychological trauma results in physical illness, see Kaufman v.

Recovery in these cases has ostensibly been grounded on a violation of the relative' s quasi-property right in the body see Darcy v. Presbyterian Hosp. Owens v. Liverpool Corp. Upper Queens Med. Group, City Ct. The instant claim provides an example of such a case. As the Appellate Division correctly found and the State in truth concedes, the hospital was negligent in failing to ascertain the proper next of kin when it mistakenly transmitted the death notice to claimant' s aunt and through her, at its behest, to claimant.

While for one to be held liable in negligence he need not foresee novel or extraordinary consequences, it is enough that he be aware of the risk of danger. Long Is. Thus, the hospital owed claimant a duty to refrain from such conduct, a duty breached when it negligently sent the false message.

The false message and the events flowing from its receipt were the proximate cause of claimant' s emotional harm. Hence, claimant is entitled to recover for that harm, especially if supported by objective manifestations of that harm. Tobin v. Grossman 24 N. In the Tobin case, the court held that no cause of action lies for unintended harm sustained Johnson v.

State of New York DAMAGES by one, solely as a result of injuries inflicted directly upon another, regardless of the relationship and whether the one was an eyewitness to the incident which resulted in the direct injuries p. In this case, however, the injury was inflicted by the hospital directly on claimant by its negligent sending of a false message announcing her mother' s death.

Claimant was not indirectly harmed by injury caused to another; she was not a mere eyewitness of or bystander to injury caused to another. Instead, she was the one to whom a duty was directly owed by the hospital, and the one who was directly injured by the hospital' s breach of that duty. Thus, the rationale underlying the Tobin case, namely, the real dangers of extending recovery for harm to others than those directly involved, is inapplicable to the instant case.

Nor is Matter of Wolfe v. There recovery was allowed solely on the elastic basis permitted by the Workmen' s Compensation Law as applied in the courts. Moreover, not only justice but logic compels the further conclusion that if claimant was entitled to recover her pecuniary losses she was also entitled to recover for the emotional harm caused by the same tortious act.

The recovery of the funeral expenses stands only because a duty to claimant was breached. Such a duty existing and such a breach of that duty occurring, she is entitled to recover the proven harmful consequences proximately caused by the breach.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for a determination of the facts in accordance with CPLR Order reversed, with costs, and case remitted to Appellate Division, Third Department, for further proceedings in accordance with the opinion herein. In Lafferty v. Manhasset Medical Center Hospital, 54 N. She suffered these upon witnessing a negligent transfusion of mismatched blood into her mother-in-law and upon participating in the events that occurred during the period immediately following the start of the transfusion.

Would the court impose liability based upon Johnson v. State of New York? A northbound car, owned by defendant Hertz Corporation, a Delaware corporation authorized to do business in New York, and operated by defendant Ponzini, a citizen of New York, crossed over a double yellow line in the highway into the southbound lane and struck the Steinhauser car heavily on the left side. The occupants did not suffer any bodily injuries.

The plaintiffs' evidence was that within a few minutes after the accident Cynthia began to behave in an unusual way. On the way home she complained of a headache and became uncommunicative. In the following days things went steadily worse.

Cynthia thought that she was being attacked and that knives, guns and bullets were coming through the windows. She was hostile toward her parents and assaulted them; becoming depressed, she attempted suicide. The family physician recommended hospitalization. Royce, which continued until September She then entered the Hospital of the University of Pennsylvania and, one month later, transferred to the Institute of Pennsylvania Hospital for long-term therapy.

Discharged in January , she has required the care of a psychiatrist. The evidence was that the need for this will continue, that reinstitutionalization is likely, and that her prognosis is bad. As the recital makes evident, the important issue was the existence of a causal relationship between the rather slight accident and Cynthia' s undoubtedly serious ailment.

However, she had fallen from a horse about two years earlier and suffered what was diagnosed as a minor concussion; she was not hospitalized but missed a month of school. The other evidence relied on by the defendants to show prior psychiatric abnormality was derived largely from the history furnished, apparently in large part 1 The fact that no physical harm was suffered as a result of the accident does not affect plaintiff' s right to recover.

New York has abandoned the rule disallowing recovery for mental disturbance in the absence of a physical impact, see Battalla v. State, 10 N. State, 43 Misc. Although the fact that Cynthia had latent psychotic tendencies would not defeat recovery if the accident was a precipitating cause of schizophrenia, this may have a significant bearing on the amount of damages.

The defendants are entitled to explore the probability that the child might have developed schizophrenia in any event. While the evidence does not demonstrate that Cynthia already had the disease, it does suggest that she was a good prospect. In Evans v. See also the famous case of Dillon v.

It is no answer that exact prediction of Cynthia' s future apart from the accident is difficult or even impossible. However taxing such a problem may be for men who have devoted their lives to psychiatry, it is one for which a jury is ideally suited. Reversed for a new trial. Does it make sense to draw the line between compensable and noncompensable emotional injuries based on whether they are accompanied by physical injury?

If not, where should the line — if any — be drawn? Note that in the Spade case the judge distinguished negligently caused emotional injury from other types of compensable harm, such as libel or slander see Chapter Fourteen for a discussion of these torts. If a newspaper had printed a story in which it incorrectly identified Nellie Smith as the daughter of a mental patient, Nellie Smith might sue the newspaper for libel.

Does it make a difference if the negligence is on the part of a New York hospital, that sends a telegram to the daughter of the wrong Mrs. Why does tort law generally permit one kind of emotional injury to be compensated without proof of physical harm, but not another?

The Johnson case is significant because the defendants did no physical harm to anyone. In this case, however, there is no physical injury. Does that make the case for recovery stronger or weaker? A well-known case recognizing a claim for negligently inflicted emotional distress, even where no physical injury was caused to anyone, not just to plaintiff , is Molien v.

Kaiser Foundation Hospitals, 27 Cal. In Molien an employee of the defendant hospital negligently examined the plaintiff and erroneously told her that she had contracted syphilis. If the hospital should be forced to compensate the plaintiff for her emotional distress, what theory provides the best justification?

JM also offers policy arguments against any award of punitive damages in this case. Edward Moran, the plaintiff' s deceased, worked for over thirty years installing insulation. During that time he worked with asbestos insulation products made by JM' s corporate predecessors. Moran died of lung cancer at age sixty-one. His executrix prosecuted this action against various manufacturers of asbestos pr oducts under a theory of strict liability in tort.

In the product liability action of Leichtamer v. American Motors Corp. To rebut Moran' s evidence of flagrant indifference to risks to insulation workers, JM argues that the record discloses that the Selikoff study of 1 was the first to document health risks to users, rather than producers, of asbestos products.

This assertion is belied by the summary of prior knowledge given in the Selikoff study itself: Ellman in mentioned a case of asbestosis in an insulation worker. Similarly, Hervieux in France drew attention in to the dangers of such end product use as insulation work. The only large scale survey of asbestos insulation workers was undertaken in the U.

Selikoff at footnotes omitted. Detling v. Chockley, 70 Ohio St. Accord, Drayton v. Jiffee Chem. Admiral Corp. A CAD. MORAN v. Here the harms threatened were chronic debilitating diseases; the corrective was the placement of warning labels on insulation products so that insulation workers might try to protect themselves if they so chose. Under the limited standard of review we may employ, we cannot disturb the jury' s award of punitive damages in this case.

Policy Arguments Against Punitive Damages Award JM offers numerous reasons why an award of punitive damages would be inappr opriate in this case. Whether a defendant' s particular course of conduct has ceased is irrelevant to the accomplishment of this broader purpose. In Drayton v. The trial court had noted both improving industry practices, and a change in corporate ownership, as weighing against such an award. See F. Ohio The trial court' s action may be questioned in light of later Ohio precedent; moreover, our own affirmance, by a divided court, was lukewarm.

Finally, we invoked Rule 52 a , F ED. Nothing we said in Drayton requires us to disallow punitive damages in this case. It points out that the persons responsible for the business decisions giving rise to JM' s liability have long ago left JM' s employ. JM would have us overlook the liability of the legal person. It is agency at the time of the tortious act, not at the time of litigation, that determines the corporation' s liability. JM' s rule would make the corporate veil an impenetrable shield against punitive damages; JM points to nothing in Ohio law from which such a shield could be fashioned.

Punitive damage awards are a risk that accompanies investment. Shimman v. Frank, F. For this reason, courts should be slow to award huge punitive damages awards against unions. The case of a union member and shareholder are, however, not wholly analogous.

Individual workers only seldom can choose which union to belong to; a group of workers cannot change bargaining agents overnight. Investors may typically place their money where they choose and withdraw it when they wish. The prospect of ultimate liability for punitive damages may encourage investors to entrust their capital to the most responsible concerns. JM urges with particular force that punitive damages should not be awarded against a company that faces a multitude of product liability actions.

We have read Judge Friendly' s interesting essay on such a prospect, and its implications for the law, in Roginsky v. Richardson-Merrell, Inc. However eloquent the essay, it is confessed dictum. So it is here. The relief sought by JM may be more proper ly granted by the state or federal legislature than by this Court. Such legislative relief is even now being sought by asbestos-product manufacturer s.

See 68 A. The asbestos cases generated huge litigation costs on both sides. The balance was chewed up in litigation, insurance and administrative expenses. Asbestos has been replaced by tobacco as the new object of scrutiny. Lilly Gray, the driver of the Pinto, suffered fatal burns and year-old Richard Grimshaw, a passenger in the Pinto, suffered severe and permanently disfiguring burns on his face and entire body. Grimshaw and the heirs of Mrs. Gray Grays sued Ford M otor Company and others.

F ollowing a six-month jury trial, verdicts were returned in favor of plaintiffs against Ford Motor Company. Ford appeals from the judgment and from an order denying its motion for a judgment notwithstanding the verdict as to punitive damages. Grimshaw appeals from the order granting the conditional new trial and from the amended judgment entered pursuant to the order. The Grays have cross-appealed from the judgment and from an order denying leave to amend their complaint to seek punitive damages.

Ford assails the judgment as a whole, assigning a multitude of errors and irregularities, including misconduct of counsel, but the primary thrust of its appeal is directed against the punitive damage award. Ford contends that the punitive award was statutorily unauthorized and constitutionally invalid.

In addition, it maintains that the evidence was insufficient to support a finding of malice or corporate responsibility for malice. Grimshaw' s cross-appeal challenges the validity of the new trial order and the conditional reduction of the punitive damage award. The Grays' cross-appeal goes to the validity of an order denying them leave to amend their wrongful death complaint to seek punitive damages. Facts Since sufficiency of the evidence is in issue only regarding the punitive damage award, we make no attempt to review the evidence bearing on all of the litigated issues.

Subject to amplification when we deal with specific issues, we shall set out the basic facts pertinent to these appeals in accordance with established principles of appellate review: We will view the evidence in the light most favorable to the parties prevailing below, resolving all conflicts in their favor, and indulging all reasonable inferences favorable to them.

Aceves v. Regal Pale Brewing Co. City of Santa Monica, 6 Cal. The Grays had trouble with the car from the outset. During the first few months of ownership, they had to return the car to the dealer for repairs a number of times. Their car problems included excessive gas and oil consumption, down shifting of the automatic transmission, lack of power, and occasional stalling. It was later learned that the stalling and excessive fuel consumption were caused by a heavy carburetor float.

On May 28, , Mrs. The Pinto was then six months old and had been driven appr oximately 3, miles. Gray stopped in San Bernardino for gasoline, got back onto the freeway Interstate 15 and proceeded toward her destination at miles per hour. As she approached the Route 30 off-ramp where traffic was congested, she moved from the outer fast lane to the middle lane of the freeway. Shortly after this lane change, the Pinto suddenly stalled and coasted to a halt in the middle lane.

It was later established that the carburetor float had become so saturated with gasoline that it suddenly sank, opening the float chamber and causing the engine to flood and stall. A car traveling immediately behind the Pinto was able to swerve and pass it but the driver of a Ford Galaxie was unable to avoid colliding with the Pinto.

The Galaxie had been traveling from 50 to 55 miles per hour but before the impact had been braked to a speed of from 28 to 37 miles per hour. At the moment of impact, the Pinto caught fire and its interior was engulfed in flames. According to plaintiffs' expert, the impact of the Galaxie had driven the Pinto' s gas tank forward and caused it to be punctur ed by the flange or one of the bolts on the differential housing so that fuel sprayed from the punctured tank and entered the passenger compartment through gaps resulting from the separation of the rear wheel well sections from the floor pan.

By the time the Pinto came to rest after the collision, both occupants had sustained serious burns. When they emerged from the vehicle, their clothing was almost completely burned off. Grimshaw managed to survive but only through heroic medical measures. He has undergone numerous and extensive surgeries and skin grafts and must undergo additional surgeries over the next 10 years. He lost portions of several fingers on his left hand and portions of his left ear, while his face required many skin grafts from various portions of his body.

Because Ford does not contest the amount of compensatory damages awarded to Grimshaw and the Grays, no purpose would be served by further description of the injuries suffered by Grimshaw or the damages sustained by the Grays. Design of the Pinto Fuel System: In , Ford began designing a new subcompact automobile which ultimately became the Pinto. Iacocco [sic], then a Ford Vice President, conceived the project and was its moving force. Ordinar ily marketing surveys and preliminary engineering studies precede the styling of a new automobile line.

Pinto, however, was a rush project, so that styling preceded engineering and dictated engineering design to a greater degree than usual. Among the engineering decisions dictated by styling was the placement of the fuel tank. In addition, the Pinto was designed so that its bumper was little more than a chrome strip, less substantial than the bumper of any other American car produced then or later. The absence of the reinforcing members rendered the Pinto less crush resistant than other vehicles.

These protrusions were sufficient to puncture a gas tank driven forward against the differential upon rear impact. A Pinto with two longitudinal hat sections added to firm up the rear structure passed a mile-per-hour rear impact fixed barrier test with no fuel leakage.

These prototypes as well as two production Pintos were crash tested by Ford to determine, among other things, the integrity of the fuel system in rear-end accidents. For d also conducted the tests to see if the Pinto as designed would meet a proposed federal regulation requiring all automobiles manufactured in to be able to withstand a mile-per-hour fixed barrier impact without significant fuel spillage and all automobiles manufactured after January 1, , to withstand a mile-per-hour fixed barrier impact without significant fuel spillage.

The crash tests revealed that the Pinto' s fuel system as designed could not meet the mile-per-hour proposed standard. Mechanical prototypes struck from the rear with a moving barrier at miles-per-hour caused the fuel tank to be driven forward and to be punctured, causing fuel leakage in excess of the standard prescribed by the proposed regulation.

A production Pinto crash tested at miles-per-hour into a fixed barrier caused the fuel neck to be torn from the gas tank and the tank to be punctured by a bolt head on the differential housing. In at least one test, spilled fuel entered the driver' s compartment through gaps resulting from the separation of the seams joining the real wheel wells to the floor pan.

The seam separation was occasioned by the lack of reinforcement in the rear structure and insufficient welds of the wheel wells to the floor pan. Tests conducted by Ford on other vehicles, including modified or reinforced mechanical Pinto prototypes, proved safe at speeds at which the Pinto failed. Where rubber bladders had been installed in the tank, crash tests into fixed barriers at miles-per-hour withstood leakage from punctures in the gas tank.

Vehicles with fuel tanks installed above rather than behind the rear axle When a prototype failed the fuel system integr ity test, the standard of care for engineers in the industry was to redesign and retest it. If, in addition to the foregoing, a bladder or tank within a tank were used or if the tank were protected with a shield, it would have been safe in a 40 to mile-per-hour rear impact. If the tank had been located over the rear axle, it would have been safe in a rear impact at 50 miles per hour or mor e.

Iacocco, then Executive Vice President of Ford. The feasibility study was conducted under the supervision of Mr. Iacocca, Mr. Robert Alexander, and Mr. During the course of the project, regular product review meetings were held which were chaired by Mr. MacDonald and attended by Mr. The Pinto crash tests results had been forwarded up the chain of command to the ultimate decision-makers and were known to the Ford officials who decided to go forward with production.

Copp' s testimony conc er ning management' s awar eness of the crash tests results and the vulnerability of the Pinto fuel system was corroborated by other evidence. At an April product review meeting chaired by Mr. Major tearup of rear and center floor pans, added rear end structure, and new fuel tanks were believed necessary for all car lines. These engineering assumptions were developed from limited vehicle crash test data and design and development work.

Since these original assumptions, seven vehicle crash tests have been run which now indicate fuel tank relocation is probably not required. Although still based heavily on judgement, Chassis Engineering currently estimates that the 30 mph movable barrier requirement is achievable with a reduced level of rear end tearup.

Although further crash tests may show that added structure alone is adequate to meet the 30 mph movable barrier r equirement, provisions for flak suits or bladders must be provided. H owever, package provision for both the flak suits and the bladder should be included when other changes are made to incorporate 30 mph movable barrier capability.

Curr ent assumptions indicate that fuel system integrity modifications and bumper improvement requirements are nearly independent. However, bumper requirements for and beyond may require additional rear end structure which could benefit fuel system integr ity progr ams. This is based on moving barrier crash tests of a Chevelle and a Ford at 30 mph and other Ford products at 20 mph.

Tests must be conducted to prove that repackaged tanks will live without significantly strengthening rear structure for added protection. Copp' s testimony that management knew the results of the crash tests. Kennedy, who succeeded Mr. Copp as the engineer in charge of Ford' s crash testing program, admitted that the test results had been forwarded up the chain of command to his superiors. Finally, Mr. Copp testified to conversations in late or early with the chief assistant research engineer in charge of cost-weight evaluation of the Pinto, and to a later conversation with the chief chassis engineer who was then in charge of crash testing the early prototype.

In these conversations, both men expressed concern about the integrity of the Pinto' s fuel system and complained about management' s unwillingness to deviate from the design if the change would cost money. In any event, Ford maintains that the punitive damage award must be reversed because of erroneous instructions and excessiveness of the award. The doctrine was a part of the common law of this state long before the Civil Code was adopted.

Mendelsohn v. Anaheim Lighter Co. Scannell, 18 Cal. Manlove, 14 Cal. Middleton, 2 Cal. With respect to a corporate employer, the advance knowledge, r atification, or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. Hearst, Cal. This contention runs counter to our decisional law. As this court recently noted, numerous California cases after Davis v.

Superior Court, Cal. Superior Court, 24 Cal. Farmers Ins. Exchange, 21 Cal. Auto Driveaway Co. California Life Ins. Southern Pacific Co. National Convenience Stores, Inc. Southern Pac. Transportation Co. Superior Court, 49 Cal. Beech Aircraft Corp. Goodrich, Cal. Richardson-Merrell Inc. Pease, Barth and Toole were strict products liability cases. Superior Court, supra, 24 Cal. The court concurred with the Searle G.

Superior Court, supra, 49 Cal. Ford attempts to minimize the precedential force of the foregoing decisions on the ground they failed to address the position now advanced by Ford that intent to harm a particular person or persons is required because that was what the lawmakers had in mind in when they adopted Civil Code section Ford argues that the Legislature was thinking in terms of traditional intentional torts, such as, libel, slander, assault and battery, malicious prosecution, trespass, etc.

A like argument was rejected in Li v. Yellow Cab Co. As the court noted, the code itself provides that insofar as its provisions are substantially the same as the common law, they should be construed as continuations thereof and not as new enactments DAMAGES Civ. To paraphr ase Li v. The record fails to support the contention. Hartford Insurance Co. Manlove, supra, 14 Cal. In these cases the jury are not confined to the loss or injury sustained, but may go further and award punitive or exemplary damages, as a punishment for the act, or as a warning to others.

Zogarts 14 Cal. State of California, Cal. There was ample evidence to support a finding of malice and Ford' s responsibility for malice. Through the results of the crash tests Ford knew that the Pinto' s fuel tank and rear structure would expose consumers to serious injury or death in a 20 to 30 mile-per-hour collision. There was evidence that Ford could have corrected the hazardous design defects at minimal cost but decided to defer correction of the shortcomings by engaging in a cost-benefit analysis balancing human lives and limbs against corporate profits.

Ford' s institutional mentality was shown to be one of callous indifference to public safety. Ford' s argument that there can be no liability for punitive damages because there was no evidence of corporate ratification of malicious misconduct is equally without merit. Draft No. Mutual of Omaha Ins. Co, 59 Cal. The present case comes within one or both of the categor ies described in subdivisions c and d. There is substantial evidence that management was aware of the crash tests showing the vulnerability of the Pinto' s fuel tank to rupture at low speed rear impacts with consequent significant risk of injury or death of the occupants by fire.

Copp that he was aware of the test results; Vice President Harold MacDonald, who chaired the product review meetings, was present at one of those meetings at which a report on the crash tests was considered and a decision was made to defer corrective action; and it may be inferred that Mr.

Alexander, a regular attender of the product review meetings, was also present at that meeting. Max Jurosek, Chief Chassis Engineer, were aware of the results of the crash tests and the defects in the Pinto' s fuel tank system. Ford contends those two individuals did not occupy managerial positions because Mr.

Copp testified that they admitted awareness of the defects but told him they were powerless to change the rear-end design of the Pinto. It may be inferred from the testimony, however, that the two engineers had approached management about redesigning the Pinto or that, being aware of management' s attitude, they decided to do nothing.

In either case the decision not to take corrective action was made by persons exercising managerial authority. While much of the evidence was necessarily circumstantial, there was substantial evidence from which the jury could reasonably find that Ford' s management decided to proceed with the production of the Pinto with knowledge of test results revealing design defects which rendered the fuel tank extremely vulnerable on rear impact at low speeds and endangered the safety and lives of the occupants.

Such conduct constitutes corporate malice. See Toole v. Ford' s net worth was 7. The punitive award was approximately. The ratio of the punitive damages to compensatory damages was approximately 1. Significantly, Ford does not quarrel with the amount of the compensatory award to Grimshaw. Nor was the size of the award excessive in light of its deterrent purpose.

An award which is so small that it can be simply written off as a part of the cost of doing business would have no deterrent effect. An award which affects the company' s pricing of its product and thereby affects its competitive advantage would serve as a deterrent. See Neal v. Exchange, supra, 21 Cal. The award in question was far from excessive as a deterrent against future wrongful conduct by Ford and others. Disposition In Richard Grimshaw v. Ford Motor Company, the judgment, the conditional new trial order, and the order denying Ford' s motion for judgment notwithstanding the verdict on the issue of punitive damages are affirmed.

In an internal Ford memorandum, Ford engineers estimated the benefits and costs of installing rubber bladders into the gas tanks as follows: Benefits: burn deaths, serious burn injuries, and 2, burned vehicles avoided. Costs: 11 million cars and 1. On the basis of this calculation, Ford decided not to install the rubber bladders.

Were they wrong? Some states, like Washington, do not allow DAMAGES the award of punitive damages except where some special statute like an antitrust statute allowing treble damages authorizes it. Maki v. Aluminum Building Products, 73 Wash.

Note that in footnote 2 the court sets out the statutory requirements to establish a corporation' s liability for punitive damages for acts of its employees. These are tests to determine whether it can fairly be said that it was the corporation rather than the individual alone who committed the acts leading to the imposition of punitive damages. One problem in the award of punitive damages, raised in cases like this one, is how cour ts can award consistent punitive damage awards where the same act manufacturing the Ford Pinto or the Dalkon Shield gives rise to multiple separate claims.

The United States Supreme Court has limited the ability of states to impose punitive damages where the 14th amendment guarantee of due process is not observed. We address once again the measure of punishment, by means of punitive damages, a State may impose upon a defendant in a civil case. He decided to pass six vans traveling ahead of them on a two-lane highway.

To avoid a head-on collision with Campbell, who by then was driving on the wrong side of the highway and toward oncoming traffic, Ospital swerved onto the shoulder, lost control of his automobile, and collided with a vehicle driven by Robert G. Ospital was killed, and Slusher was rendered permanently disabled.

The Campbells escaped unscathed. In the ensuing wrongful death and tort action, Campbell insisted he was not at fault. Campbell' s unsafe pass had indeed caused the crash. Nor was State Farm willing to post a supersedeas bond to allow Campbell to appeal the judgment against him.

Campbell obtained his own counsel to appeal the verdict. During the pendency of the appeal, in late , Slusher, Ospital, and the Campbells reached an agreement whereby Slusher and Ospital agreed not to seek satisfaction of their claims against the Campbells.

In exchange the Campbells agreed to pursue a bad faith action against State Farm and to be represented by Slusher' s and Ospital' s attorneys. The Campbells also agreed that Slusher and Ospital would have a right to play a part in all major decisions concerning the bad faith action.

In , the Utah Supreme Court denied Campbell' s appeal in the wrongful death and tort actions. Slusher v. Ospital, P. State Farm then paid the entire judgment, including the amounts in excess of the policy limits. The Campbells nonetheless filed a complaint against State Farm alleging bad faith, fraud, and intentional infliction of emotional distress. The trial court initially granted State Farm' s motion for summary judgment because State Farm had paid the excess verdict, but that ruling was reversed on appeal.

On remand State Farm moved in limine to exclude evidence of alleged conduct that occurred in unrelated cases outside of Utah, but the trial court denied the motion.

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The total award for damages to the car itself may not exceed the difference between the actual or intrinsic value of the car or its value to the owner immediately prior to its being damaged and its salv age v alue immediately afterwards. This does not include sentimental value, if any. In determining this actual or intrinsic value or value to the owner, you may consider all of the relevant evidence, and are not bound by any particular item of evidence.

In addition, you may allow damages for the loss of use, if any, which you find established by the evidence. In measuring such damages, you may take into account any lost rental value and the reasonable value of any business or personal use to the owner which you find established by the evidence for a period of time following the damage which is reasonably necessary under all of the evidence for repair or replacement of this type of property under all of the existing circumstances as they reasonably appeared to the owner of the damaged property.

This is the only instruction given on damages. Appellants' theory on damages at the trial was based upon this principle: Ordinar ily the measure of damages for the loss or destruction of personal proper ty is McCURDY v. An instruction embodying this principle was offered by the appellants but was refused by the trial court.

If the proper ty is a total loss the measure of damages is the value of the property destroyed or damaged. This is its market value, if it has a market value. If the proper ty is damaged but not destroyed, the measure of damages is the difference between the market value of the proper ty before the injury and its market value after the injury.

Again, if it has a market value. If the property does not have a market value, then if a total loss, the measure of damages is the cost to replace or reproduce the article. If it cannot be reproduced or replaced, then its value to the owner may be considered in fixing damages. In order for it to be said that a thing has a market value, it is necessary that there shall be a market for such commodity--that is, a demand therefor and an ability from such demand to sell the same when a sale thereof is desired.

No market value is generally attributable to such things as family photographs, writings, antiques, clothing, paintings, plans of architects, engineers, etc. Evidence from which a conclusion could be reached that a market price existed or could be established can be found in the testimony of respondent himself.

He testified as follows: Q. Have you attempted to determine whether any were available for purchase? I have. Are any available for purchase, or were they in the years through ? There were several that I determined. The Santa Fe Railroad had one which they sold.

And Lucius Beebe had one that he said he would sell and then withdrew it from the market. Who is Lucius Beebe? He is probably known as the Dean of private car fanciers, I guess you could call him. By Mr. Ehrlichman Do you know of cars of comparable age and facility which have been sold during these four years, through ? Can you say whether or not there is in fact a market in these cars in the United States? Can you say whether or not--A.

I am going to try and explain it. Can you say whether or not there is a going price for cars of this kind in the United States during this period of time that we have been talking about? Appellants objected to this line of testimony. It asks an owner whether or not there is a going price on a commodity he owns.

Objection overr uled. Can you say what in your opinion the value of your car was on the 9th of March, , before it was damaged? My appr aisal? Your own opinion, yes. Of course, the owner of a chattel may testify as to its market value without being qualified as an expert in this regard. Wicklund v. Allraum, Wash. Seattle-First Nat' l Bank, 63 Wash. The respondent' s testimony, the evidence on negotiations for purchase of the car, the evidence on the condition of the car, convince us that appellants' theory on market value should have been presented to the jury.

The court' s failure to do so amounted to a finding by the court that there was no market value on disputed facts, thus usurping the province of the jury. If the jury, having been instructed on market value, nevertheless finds that there was no market value, then its actual or intrinsic value, including consideration of its value to the owner, may be used by the jury in fixing damages. Covey v. Western Tank Lines, Inc.

General Constr. There was also evidence in the case from which the jury could find that the car was totally destroyed for all practical purposes, and evidence as to cost of repairs if it were repaired; thus adding additional factors for the jury to consider. If the jury should find that the car was totally destroyed, then respondent cannot recover for the loss of use, as the measure of damage in such a case is the value of the property destroyed.

Adams v. Bell Motors, Inc. Egger, Neb. Scott, La. The reason for this rule is that in the recovery of the full value of the vehicle, as of the date of its destruction, the owner has been made whole. Kohl v. Arp, Iowa 31, 17 N. If the jury should find that the car could reasonably be repaired, then the owner may recover compensation for the loss of use of the car while the repairs are in progress.

The trial court erred, however, in its instruction No. The reasonableness of the time for which loss of use is to be compensated is as it would appear to an ordinary prudent man under all the circumstances. Since the trial court did not properly instruct on the issues to be considered by the jury in fixing damages, the case is remanded for a new trial on the issue of damages only, with the jury to be instructed in accordance with the views expressed in this opinion.

OTT, Judge concurring in part and dissenting in part. I concur with the majority that appellants should be granted a new trial, limited solely to the issue of damages. The rule is that the cost of repair and loss of use are proper elements of damages only where the property is reasonably susceptible of repair. Under similar circumstances, we held, in West Coast Transport Co.

Landin, Wash. Applying this rule is the instant case, where the cost of repair is approximately 15 times the value of the property damaged, it must be considered to be destroyed. I agree with this definition of market value. Upon retrial, the jury should be instructed that the measure of damages to which the respondent is entitled is limited to that fair market value which the evidence establishes the car had on the date it was destroyed.

For example, suppose the defendant negligently fails to deliver a critical item needed at the plaintiff' s factory, and as a result the plaintiff suffers significant financial loss. May those damages be recovered? Most jurisdictions treat this as a question to be governed by the Uniform Commercial Code rather than by tort law.

What we consider here are economic losses that flow from a personal injury to the plaintiff. We are called upon to decide questions of contributory negligence and damage assessment, in particular the question —one of first impression in this circuit —whether, and if so how, to account for inflation in computing lost future wages.

O'SHEA v. A harbor boat operated by the defendant, Riverway Towing Company, carried Mrs. O' Shea to shore and while getting off the boat she fell and sustained the injury complained of. The district judge found Riverway negligent and Mrs. Riverway appeals only from the finding that there was no contributory negligence and from the part of the damage award that was intended to compensate Mrs. O' Shea for her lost future wages. She also testified that she had been intending to work as a boat' s cook until she was 70 —longer if she was able.

An economist who testified on Mrs. O' Shea' s behalf used the foregoing testimony as the basis for estimating the wages that she lost because of the accident. These calculations, being based on alternative assumptions concerning starting wage rate, annual wage increases, and length of employment, yielded a range of values rather than a single value.

This is the present value, computed at an 8. There is no doubt that the accident disabled Mrs. O' Shea from working as a cook on a boat. The break in her leg was very serious: it reduced the stability of the leg and caused her to fall frequently. It is impossible to see how she could have continued working as a cook, a job performed mostly while standing up, and especially on a boat, with its unsteady motion.

But Riverway argues that Mrs. O' Shea who has not worked at all since the accident, which occurred two years before the trial could have gotten some sort of job and that the wages in that job should be deducted from the admittedly higher wages that she could have earned as a cook on a boat. The question is not whether Mr s. O' Shea is totally disabled in the sense, relevant to social security disability cases but not tort cases, that there is no job in the American economy for which she is medically fit.

Compare Cummins v. Schweiker, F. Turner, F. It is whether she can by reasonable diligence find gainful employment, given the physical condition in which the accident left her. See, e. Here is a middle-aged woman, very overweight, badly scarred on one arm and one leg, unsteady on her feet, in constant and serious pain from the accident, with no education beyond high school and no work skills other than cooking, a job that happens to require standing for long periods which she is incapable of doing.

It seems unlikely that someone in this condition could find gainful work at the minimum wage. True, the probability is not zero; and a better procedure, therefore, might have been to subtract from M rs. O' Shea' s lost future wages as a boat' s cook the wages in some other job, discounted i. But the district judge cannot be criticized for having failed to use a procedure not suggested by either party. The question put to him was the dichotomous one, would she or would she not get another job if she made reasonable efforts to do so?

This required him to decide whether there was a more than 50 percent probability that she would. We cannot say that the negative answer he gave to that question was clearly erroneous. Riverway argues next that it was wrong for the judge to award damages on the basis of a wage not validated, as it were, by at least a year' s employment at that wage.

But previous wages do not put a cap on an award of lost future wages. The present case is similar if less dramatic. O' Shea did not work at all until , when her husband died. She then lived on her inheritance and worked at a variety of part-time jobs till January , when she started working as a cook on the towboat.

According to her testimony, which the trial judge believed, she was then working full time. It is immaterial that this was her first full-time job and that the accident occurred before she had held it for a full year. Her job history was typical of women who return to the labor force after their children are grown or, as in Mrs.

O' Shea' s case, after their husband dies, and these women are, like any tort victims, entitled to damages based on what they would have earned in the future rather than on what they may or may not have earned in the past. If we are correct so far, Mrs. And since Riverway neither challenges the district judge' s apparent finding that Mrs. The point is not terribly important since the trial judge gave little weight to this testimony, but we shall discuss it briefly.

The objection was not well taken. But an employee' s wage is as much in the personal knowledge of the employee as of the employer. If Mrs. O' Shea had told him she was willing to work for. Riverway' s counsel could on cross-examination have probed the basis for Mrs. We come at last to the most important issue in the case, which is the proper treatment of inflation in calculating lost future wages.

O' Shea' s economist based the six to eight percent range which he used to estimate future increases in the wages of a boat' s cook on the general pattern of wage increases in service occupations over the past 25 years. During the second half of this period the rate of inflation has been substantial and has accounted for much of the increase in nominal O'SHEA v.

Riverway argues that it is improper as a matter of law to take inflation into account in projecting lost future wages. Yet Riverway itself wants to take inflation into account —one-sidedly, to reduce the amount of the damages computed. For River way does not object to the economist' s choice of an 8.

O' Shea' s lost future wages to present value, although the rate includes an allowance — a very large allowance — for inflation. To explain, the object of discounting lost future wages to present value is to give the plaintiff an amount of money which, invested safely, will grow to a sum equal to those wages. So if we thought that but for the accident Mrs. Suppose that in the rate of interest on ultra-safe i. But a moment' s reflection will show that to give Mrs.

People demand 12 percent to lend money risklessly for 10 years because they expect their principal to have much less purchasing power when they get it back at the end of the time. In other words, when long-term interest rates are high, they are high in order to compensate lenders for the fact that they will be repaid in cheaper dollars.

In periods when no inflation is anticipated, the risk-free interest rate is between one and three percent. See references in Doca v. Marina Mercante Nicaraguense, S. Additional percentage points above that level reflect inflation anticipated over the life of the loan. But if there is inflation it will affect wages as well as prices.

Therefore to give Mrs. There are at least two ways to deal with inflation in computing the present value of lost future wages. One is to take it out of both the wages and the discount rate — to say to Mrs.

O' Shea' s real i. Of course, she would not invest this money at a mere two percent. She would invest it at the much higher prevailing interest rate. But that would not give her a windfall; it would just enable her to replace her lost earnings with an amount equal to what she would in fact have earned in that year if inflation continues, as most people expect it to do.

If people did not expect continued inflation, long-term interest rates would be much lower; those rates impound investors' inflationary expectations. An alternative approach, which yields the same result, is to use a higher discount rate based on the current risk-free year interest rate, but apply that rate to an estimate of lost future wages that includes expected inflation.

Contrary to Riverway' s argument, this projection would not require gazing into a crystal ball. The expected rate of inflation can, as just suggested, be read off from the current long-term interest rate. If that rate is 12 percent, and if as suggested earlier the real or inflation-free interest rate is only one to three percent, this implies that the market is anticipating percent inflation over the next 10 years, for a long-term interest rate is simply the sum of the real interest rate and the anticipated rate of inflation during the term.

Either approach to dealing with inflation is acceptable they are, in fact, equivalent and we by no means rule out others; but it is illogical and indefensible to build inflation into the discount rate yet ignore it in calculating the lost future wages that are to be discounted. That results in systematic undercompensation, just as building inflation into the estimate of future lost earnings and then discounting using the real rate of interest would systematically overcompensate.

The former error is committed, we respectfully suggest, by those circuits, notably the Fifth, that refuse to allow inflation to be used in projecting lost future earnings but then use a discount rate that has built into it a large allowance for inflation.

Slater Boat Co. We align ourselves instead with those circuits a majority, see Doca v. See id. We note that in Byrd v. Reederei, F. Applying our analysis to the present case, we cannot pronounce the approach taken by the plaintiff' s economist unreasonable. He chose a discount rate — 8. Consistency requir ed him to inflate Mrs. O' Shea' s starting wage as a boat' s cook in calculating her lost future wages, and he did so at a rate of six to eight percent a year. If this rate had been intended as a forecast of purely inflationary wage changes, his approach would be open to question, especially at the upper end of his range.

For if the estimated rate of inflation were eight percent, the use of a discount rate of 8. But wages do not rise just because of inflation. O' Shea could expect her real wages as a boat' s cook to rise as she became more experienced and as average real wage rates throughout the economy rose, as they usually do over a decade or more.

It would not be outlandish to assume that even if there were no inflation, Mrs. If we subtract that from the economist' s six to eight percent range, the inflation allowance built into his estimated future wage increases is only three to five percent; and when we subtract these figures from 8. This means he was conservative, because the higher the discount rate used the lower the damages calculated.

If conservative in one sense, the economist was most liberal in another. He made no allowance for the fact that Mrs. O' Shea, whose health history quite apart from the accident is not outstanding, might very well not have survived — let alone survived and been working as a boat' s cook or in an equivalent job —until the age of The damage award is a sum certain, but the lost future wages to which that award is equated by means of the discount rate are mere probabilities.

If the probability of her being employed as a boat' s cook full time in was only 75 percent, for example, then her estimated wages in that year should have been multiplied by. Conte v. Flota Mercante del Estado, F. The economist did not do this, and by failing to do this he overstated the loss due to the accident.

But River way does not make an issue of this aspect of the economist' s analysis. Nor of another: the economist selected the 8. O' Shea' s federal income tax bracket to invest in tax-free bonds. If he wanted to use nominal rather than real interest rates and wage increases as we said was proper , the economist should have used a higher discount rate and a higher expected rate of inflation.

But as these adjustments would have been largely or entirely offsetting, the failure to make them was not a critical error. Although we are not entirely satisfied with the economic analysis on which the judge, in the absence of any other evidence of the present value of Mr s. O' Shea' s lost future wages, must have relied heavily, we recognize that the exactness which economic analysis rigorously pursued appears to offer is, at least in the litigation setting, somewhat delusive.

We cannot say the result here was unreasonable. If the economist' s method of estimating damages was too generous to Mrs. O' Shea in one important respect it was, as we have seen, niggardly in another. Another error against Mrs. O' Shea should be noted: the economist should not have deducted her entire income tax liability in estimating her future lost wages. Liepelt, U. While it is true that the damage award is not taxable, the interest she earns on it will be a point the economist may have ignored because of his erroneous assumption that she would invest the award in tax-exempt bonds , so that his method involved an element of double taxation.

If we assume that Mrs. But we are distressed that he made no attempt to explain how he had arrived at that figure, since it was not one contained in the economist' s testimony though it must in some way have been derived from that testimony. Unlike many other damage items in a personal injury case, notably pain and suffering, the calculation of damages for lost earnings can and should be an analytical rather than an intuitive undertaking.

Therefore, compliance with Rule 52 a of the Federal Rules of Civil Procedure requires that in a bench trial the district judge set out the steps by which he arrived at his award for DAMAGES lost future earnings, in order to assist the appellate court in reviewing the award. Rucker v. Higher Educ. Aids Bd. The district judge failed to do that here. We do not consider this reversible error, because our own analysis convinces us that the award of damages for lost future wages was reasonable.

But for the future we ask the district judges in this circuit to indicate the steps by which they arrive at damage awar ds for lost future earnings. Judgment affirmed. Questions and Notes 1. Awards for lost income due to personal injuries have traditionally not been subject to income taxes, stretching back to a federal law passed in However, as the bite taken out for taxes has increased to a larger and larger percentage, pressure has mounted to allow juries to take this into account when figuring lost income.

A majority of jurisdictions still recognize a gross income rule in which evidence of the amount of income tax the plaintiff would pay is excluded — lost earnings are based on gross, not net income. Of the minority jurisdictions, most allow or require evidence of what income tax would have been owed on the salary when figuring lost earnings. However, there is a movement toward allowing judges to use their discretion in giving such information to the jury. In a case involving brain injury or spinal damage, the cost of care may dwarf even the loss of lifetime earning capacity.

For example, in Fortman v. Or consider Niles v. City of San Rafael, 42 Cal. Like lost income, damages for future medical expenses must be discounted to present value. The defendants excepted to that part of the charge to the jury, in which they were instructed, that in cases of this kind it was competent for them to go beyond the actual pecuniary damages sustained, and take into consideration, not only the loss of time and pecuniary expenses, but the bodily pain and suffering also, which the plaintiff had undergone, and compensate him in damages therefor.

I confess I am yet to learn that this is contrary to law. I am confident the rule has been generally understood, and uniformly administered by our courts, as laid down by the learned justice to the jury, in all cases of this kind, where one person has received personal injury and mutilation, by the careless or negligent act of another.

The bodily pain and suffering is part and parcel of the actual injury, for which the injured party is as much entitled to compensation in damages, as for loss of time or the outlay of money. It is true the footing for a precise and accurate estimate of damages may not be quite as sure and fixed in regard to it, as where a loss has been sustained in time or money; and yet the actual damage is no less substantial and real. If persons or corporations engaged in the business of the defendants, intrusted daily with the lives and personal safety of hundreds of individuals, and using such an untamable power, may negligently cause serious injuries to the person, and occasion intolerable bodily pain and suffering, and only be chargeable with the loss of time, at what it may be proved to be worth, and the surgeon' s and nurse' s bill, it is quite time it should be understood, that persons trusting themselves to MORSE v.

Such a rule would, in my judgment, be a serious general evil and be productive of the most deplorable consequences. The defendants' counsel insists that all damages recovered beyond the actual loss of time and pecuniary expense, are strictly exemplary damages, and that to authorize a plaintiff to recover damages of that character, he must show the injury to have been willful and malicious on the part of the defend-ants.

But I think that damages for bodily pain and suffering arising from physical injury, and connected with actual loss of time and money, are not exemplary, or punitory in their character, in any strict or proper sense of these terms. Exemplary or punitory damages, or smart money, as they are often called, are given by way of punishment, for intentional wrong, and to operate as an example to others Here the damages are strictly compensatory for the actual injury, of which the bodily pain and suffering were an essential part Many proposals for tort reform some of which have been successful; see the case of Fein v.

Is this an improvement to the tort system? In a recent article, Bovbjerg, Sloan and Blumstein proposed an alternative to essentially unfettered jury determination of pain and suffering damages. If you were a member of the legislature, would you support a measure to include one or more of these methods in jury calculation of awards? Why or why not?

They were jostling one another, and plaintiff moved to avoid them. Then one of them quarreled with the conductor over the payment of the fare, and additional pushing and shoving resulted in one of the men colliding with the plaintiff. My breath was cut right off. I could not have spoken; I tried to speak, but I chilled so I kept growing stiffer and stiffer, until I did not know, I do not know when they got me off the car.

The jury awarded a verdict, and the defendant appealed. This case presents a question which has not heretofore been determined in this commonwealth, and in respect to which the decisions elsewhere have not been uniform. It is this: Whether, in an action to recover damages for an injury sustained through the negligence of another, there can be a recovery for a bodily injury caused by mere fright and mental disturbance.

The jury were instructed that a person cannot recover for mere fright, fear, or mental distress, occasioned by the negligence of another, which does not result in bodily injury, but that, when the fright or fear or nervous shock produces a bodily injury, there may be a recovery for that bodily injury, and for all the pain, mental or otherwise, which may arise out of that bodily injury. In Canning v. Williamstown, 1 Cush.

In Warren v. Railroad Co. It was not, therefore, a case of mere fright and resulting nervous shock. The case calls for a consideration of the real ground upon which the liability of nonliability of a defendant guilty of negligence in a case like the present depends. The exemption from liability for mere fright, terror, alarm, or anxiety, does not rest on the assumption that these do not constitute an actual injury.

They do in fact deprive one of the enjoyment and of comfort, cause real suffering, and to a greater or less extent, disqualify one for the time being from doing the duties of life. If these results flow from a wrongful or negligent act, a recovery therefor cannot be denied on the ground that the injury is fanciful and not real.

Nor can it be maintained that these results may not be the direct and immediate consequence of the negligence. Danger excites alarm. Few people are wholly insensible to the emotions caused by imminent danger, though some are less affected than others.

It must also be admitted that a timid or sensitive person may suffer, not only in mind, but also in body, from such a cause. Great emotion, may, and sometimes does, produce physical effects. The action of the heart, the circulation of the blood, the temperature of the body, as well as the nerves and the appetite, may all be affected. A physical injury may be directly traceable to fright, and so may be caused by it.

We cannot say, therefore, that such consequences may not flow proximately from unintentional negligence; and, if compensation in damages may be recovered for a physical injury so caused, it is hard, on principle, to say there should not also be a recovery for the mere mental suffering when not accompanied by any perceptible physical effects. It would seem, therefore, that the real reason for refusing damages sustained from mere fright must be something different, and it probably rests on the ground that in practice it is impossible satisfactorily to administer in the courts according to general rules.

Courts will aim to make these rules as just as possible, bearing in mind that they are to be of general application. But as the law is a practical science, having to do with the affairs of life, any rule is unwise if, in its general application, it will not, as a usual result, serve the purposes of justice. A new rule cannot be made for each case, and there must therefore be a certain generality in rules of law, which in particular cases may fall to meet what would be desirable if the single case were alone to be considered.

One cannot always look to others to make compensation for injuries received. Many accidents occur, the consequences of which the sufferer must bear alone. And, in determining the rules of law by which the right to recover compensation for unintended injury from other is to be governed, regard must chiefly be paid to such conditions as are usually found to exist.

Not only the transportation of passengers and the running of trains, but the general conduct of business and of the ordinar y affairs of life, must be done on the assumption that persons who are liable to be affected thereby are not peculiarly sensitive, and are of ordinary physical and mental strength.

If, for example, a traveler is sick or inform, delicate in health, specially nervous or emotional, liable to be upset by slight causes, and therefore requiring precautions which are not usual or practicable for traveling in general, notice should be given so that if reasonably practicable, arrangements may be made accordingly, and extra care be observed.

But as a general rule a carrier of passengers is not bound to anticipate or to guard against an injurious result which would only happen to a person of peculiar sensitiveness. This limitation of liability for injury of another description is intimated in Allsop v. One may be held bound to anticipate and guard against the probable consequences to ordinar y people, but to carry the rule of damages further imposes an undue measure of responsibility upon those who are guilty only of unintentional negligence.

The general rule limiting damages in such a case to the natural and probable consequences of the acts done is of wide application, and has often been expressed and applied. Lombard v. Lennow, Mass. Dresser, Mass. Hoar, Mass. Flitner, Mass. Kellogg, 94 U. Leavitt, 71 Me. Cleveland, 55 Vt. Dickerson, 85 Ill. Fields, 57 Iowa, , 10 N. Canfield, 36 Minn. Knight, 9 H. Railway Co. The number of actions brought is very great. This should lead courts well to consider the grounds on which claims for compensation proper ly rest, and the necessary limitations of the right to recover.

We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and, if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without. The logical vindication of this rule is that it is unreasonable to hold persons who are merely negligent bound to anticipate and guard against fright and the consequences of fright, and that this would open a wide door for unjust claims, which could not successfully be met.

These views are supported by the following decisions: Commissioners v. Coultas, 13 App. App; Dec. In the following cases a different view was taken; Bell v. It is hardly necessary to add that this decision does not reach those classes of actions where an intention to cause mental distress or to hurt the feelings is shown, or is reasonably to be inferred, as, for example, in cases of seduction, slander, malicious prosecution, or arrest, and some other.

Nor do we include cases of acts done with gross carelessness or recklessness showing utter indifference to such consequences, when they must have been in the actor' s mind. Lennow and Fillebrown v. Hoar, already cited; Meagher v. Driscoll, 99 Mass. In the present case no such considerations entered into the rulings or were presented by the facts.

The entry therefore must be: Exceptions sustained. The drilling generated dust containing asbestos fibers to which Carter and Wilson were exposed. They had no protective gear to prevent them from inhaling the dust. Carter worked on the project from four to six weeks, and Wilson worked on it about two weeks.

Not until the work was almost complete did the laboratory manager warn Carter and Wilson of the asbestos, at which point they stopped work on the project. Temple-Inland then tested and decontaminated the lab. Some eighteen months later Carter and Wilson were examined by Dr. Daniel Jenkins, to whom they had been referred by their attorney. Although Dr. Jenkins concluded that neither Carter nor Wilson had any asbestos-related disease, they sued Temple-Inland for mental anguish damages caused by its having negligently exposed them to asbestos fibers.

Carter and Wilson also alleged that Temple-Inland had failed to develop a hazard communication program as required by federal regulation 3 to protect persons working on its premises. Jenkins testified at his deposition that Wilson complained of shortness of breath on exertion, that Wilson' s X-ray showed some bilateral pleural thickening, and that his pulmonary function report suggested some obstruction in the small peripheral airways.

According to Dr. Jenkins, Wilson' s shortness of breath and pleural thickening were possibly related to his obesity, and the pleural thickening could have been related to a history of asbestos exposure predating the Temple-Inland work. Jenkins did not attribute any of Wilson' s symptoms to his exposure to asbestos on Temple-Inland' s premises and agreed that that exposure was probably too recent to have resulted in any of Wilson' s conditions, given the long latency period ordinarily involved in asbestosrelated diseases.

Carter' s X-ray showed no abnormalities whatever, and his pulmonary function was close to normal. Jenkins thus concluded that Wilson and Carter suffered from no disease as a result of their exposure to asbestos and that they were not disabled. In their depositions Carter and Wilson reported no other symptoms.

Jenkins, however, insisted that Wilson and Carter had been injur ed by their exposure to asbestos and probable inhalation of asbestos fibers at the Temple-Inland lab. He estimated that the chances of their developing a disease as a result had increased from one in a million, which he estimated to be the risk that a person would ever develop a disease from asbestos exposure not occupationally related, to about one in , for the next ten or fifteen years, and as much as one in over twenty or thirty years.

Based on the depositions of Dr. Jenkins, Carter, Wilson, and others, Temple-Inland moved for summary judgment on the ground that Carter and Wilson had not suffered any injury for which they could recover mental anguish damages. Temple-Inland argued that plaintiffs' claims for fear of the mere possibility of developing some disease in the future amounted to nothing more 2 3 42 Tex.

The sole issue in this case is whether a person who has been exposed to asbestos but does not have an asbestos-related disease may recover damages for fear of the possibility of developing such a disease in the future. The district court granted summary judgment for the defendant on plaintiff' s claims for actual and punitive damages. A divided court of appeals reversed only on the actual damages claim. I S. Plaintiffs cited 29 C. Temple-Inland also contended that as a matter of law it had not been grossly negligent.

The trial court granted summary judgment. The court of appeals affirmed the judgment denying punitive damages but, by a divided vote, reversed the judgment on plaintiffs' actual damage claims. Fibreboard Corp. CARTER II The summary judgment record establishes that Carter and Wilson were exposed to asbestos at Temple-Inland' s lab but do not presently suffer from any asbestos-related disease, and that while their risk of developing such a disease was increased by their exposure to asbestos, that risk is still no higher than one chance in a hundred over twenty to thirty years.

The issue is whether they can recover for their fear that they will someday develop such a disease from their work at Temple-Inland' s lab. A Carter and Wilson first argue that they are entitled to recover mental anguish damages even if they sustained no physical injury, as long as their fear of developing some asbestos-related disease is reasonable.

This argument conflicts with our decision in Boyles v. Nor is mere fright the subject of damages. City of Pasadena, S. Oglesby, S. Wechter, S. Atkinson, S. Trott, 86 Tex. Western Union Tel. Wyatt, S. F or many breaches of legal duties, even tortious ones, the law affords no right to recover for resulting mental anguish.

Moreover, a landowner' s tortious breach of his duty to invitees--like Temple-Inland' s negligently exposing Carter and Wilson to asbestos--is not a wrong for which mental anguish is compensable absent physical injury. Accordingly, Carter and Wilson cannot recover mental anguish damages absent physical injury. B Alternatively, Carter and Wilson argue that they have been physically injured because of their exposure to asbestos fibers.

Carter' s and Wilson' s testimony, as well as that of Dr. Jenkins, supports the inference that they inhaled asbestos fibers in the lab, and Temple-Inland has not refuted this inference. Also, D r. Jenkins' testimony that plaintiffs were physically injured by the inhalation of asbestos is uncontradicted in the record.

We therefore assume, as we must for summary judgment purposes, that Carter and Wilson were physically injured by their exposure to asbestos on 15 16 17 Motor Express, Inc. Rodriguez, S. Likes, S. Motor Express, S. Temple-Inland' s premises, so that they reasonably fear developing some asbestos-related disease. The question comes to this: given that plaintiffs inhaled asbestos fibers, can they recover mental anguish damages for their increased risk and reasonable fear of possibly developing asbestos-related diseases that they do not currently have and may never have?

While the existence of physical injury is ordinarily necessary for recovery of mental anguish damages except in those instances already mentioned, such injury may not be sufficient for recovery of mental anguish damages when the injury has not produced disease, despite a reasonable fear that such disease will develop. As we recently observed in City of Tyler v.

Gottshall, U. Watkins v. Nuclear Utility Services, Inc. N one of them was decided by the highest court of the relevant State. But see Farrall v. But cf. Clean Air Sys. Jacquays Mining Corp. Asbestos Corp. Cox, So. Bailey, S. Abbott Labs, Mass. Pacor, Inc. Joy Tech.

Raymark Indus. Johns-Manville Sales Corp. Johns-Manville Corp. Kansas City So. CARTER accompanying mental anguish damages, even if the mental anguish is not itself physically manifested. A person exposed to asbestos can certainly develop serious health problems, but he or she also may not. The difficulty in predicting whether exposure will cause any disease and if so, what disease, and the long latency period characteristic of asbestos-related diseases, make it very difficult for judges and juries to evaluate which exposure claims are serious and which are not.

This difficulty in turn makes liability unpredictable, with some claims resulting in significant recovery while virtually indistinguishable claims are denied altogether. S o me c la i m an t s w ou l d i n e v it a b l y be overcompensated when, in the course of time, it happens that they never develop the disease they feared, and others would be undercompensated when it turns out that they developed a disease more serious even than they feared.

Suits for mental anguish damages caused by exposure that has not resulted in disease would compete with suits for manifest diseases for the legal system' s limited resources. If recovery were allowed in the absence of present disease, individuals might feel obliged to bring suit for such recovery prophylactically, against the possibility of future consequences from what is now an inchoate risk. The question is not, of course, whether Carter and Wilson have themselves suffered genuine distress over their own exposure.

We assume they have, and that their anxiety is reasonable. The 27 City of Likes, S. Sepulveda, S. Haussecker, S. DAMAGES question, rather, is whether this type of claim--for fear of an increased risk of developing an asbestos-related disease when no disease is presently manifest--should be permitted, regardless of any individual plaintiff' s circumstances, when the effort in determining the genuineness of each claim and assuring appropriate recovery is beset with the difficulties we have described.

The jury found that plaintiffs' exposure had not caused them any disease but had caused them mental anguish. The Fifth Circuit concluded that Texas law, which governed the case, allowed recovery of mental anguish damages in such circumstances. Pool, 32 and a prior decision of the Circuit, Dartez v. Rather, it has developed recovery-permitting categories the contours of which more distantly reflect this, and other, abstract general policy concerns.

T he point of such categorization is to deny courts the authority to undertake a case by case examination. Assuming that that proposition is correct, something we do not decide her e, Pool does not support Watkins' conclusion that a person who has no asbestos-related disease can likewise recover for fear of possible future disease.

Dartez does appear to support Watkins' conclusion, but its reasoning is flawed. The plaintiff in Dartez claimed mental anguish damages for his increased risk of developing cancer or mesothelioma due to his exposure to asbestos. The court noted that no Texas court had permitted such recovery but concluded that Texas law would allow it based on a number of analogous cases.

In each of the Texas cases the court cited, however, plaintiff suffered present and manifest physical injuries as well as a fear of future complications as a result. But the plaintiff in Gideon suffered from asbestosis and claimed a fear of developing mesothelioma.

Neither Gideon nor any Texas court 35 id. Noel, S. Wood, S. Winchester, S. O' Brien, 18 Tex. McSwain, 55 Tex. Watkins does not correctly state Texas law, nor did it attempt to analyze the development of the common law as Buckley did. III We add this cautionary note. The principles we have used to deny recovery of mental anguish damages for fear of the possibility of developing a disease as a result of an exposure to asbestos may not yield the same result when the exposure is to some other dangerous or toxic element.

Exposure to asbestos, a known carcinogen, is never healthy but fortunately does not always result in disease. The consequences of exposure to other toxic materials vary, and while the analysis in other circumstances should be the same as that which we have employed here, the outcomes may be different. Commentators have noted the unique characteristics of asbestos and the difficulties of applying traditional tort principles: George L.

On August 6, , another patient, also named Emma Johnson, died. Later that day, the hospital sent a telegram addressed to Nellie Johnson of Albany, claimant' s aunt and the sister of the living Emma Johnson. M etro-North Commuter R. An undertaker was engaged; the body of the deceased Emma Johnson was released by the hospital and taken to Albany that night. A wake was set for August 11, with burial the next day. In the interim claimant incurred expenses in preparing the body for the funeral, and in notifying other relatives of her mother' s death.

On the afternoon of the wake, claimant and her aunt went to the funeral home to view the body. Nellie Johnson also expressed doubt that the corpse was that of her sister Emma. Thereafter the doubts built up, and upon returning that evening for the wake, claimant, in a state of extreme distress, examined the corpse more closely and verified that it was not that of her mother. The hospital was called, and the mistake confirmed.

Claimant' s mother was alive and well in another wing of the hospital. Later that evening at the hospital, the deputy director, with the authorization of the director, admitted the mistake to claimant and her aunt. After this incident, claimant did not work in her employment for more than 11 days. She seemed to be under a considerable amount of pressure. She cried easily when relating events that occurred.

I though that she spoke rather rapidly and obviously perspiring. H er expert, as indicated, testified that she showed objective manifestations of that condition. One to whom a duty of care is owed, it has been held, may recover for harm sustained solely as a result of an initial, negligently-caused psychological trauma, but with ensuing psychic harm with residual physical manifestations Battalla v.

State of New York, 10 N. Galluchio, 5 N. Grossman, 24 N. Weicker v. Weicker, 22 N. Contemporaneous or consequential physical harm, coupled with the initial psychological trauma, was, however , thought to provide an index of reliability otherwise absent in a claim for psychological trauma with only psychological consequences.

There have developed, however, two exceptions. Speight, U. The Federal rule does, however, permit recovery where the psychological trauma results in physical illness, see Kaufman v. Recovery in these cases has ostensibly been grounded on a violation of the relative' s quasi-property right in the body see Darcy v.

Presbyterian Hosp. Owens v. Liverpool Corp. Upper Queens Med. Group, City Ct. The instant claim provides an example of such a case. As the Appellate Division correctly found and the State in truth concedes, the hospital was negligent in failing to ascertain the proper next of kin when it mistakenly transmitted the death notice to claimant' s aunt and through her, at its behest, to claimant.

While for one to be held liable in negligence he need not foresee novel or extraordinary consequences, it is enough that he be aware of the risk of danger. Long Is. Thus, the hospital owed claimant a duty to refrain from such conduct, a duty breached when it negligently sent the false message. The false message and the events flowing from its receipt were the proximate cause of claimant' s emotional harm. Hence, claimant is entitled to recover for that harm, especially if supported by objective manifestations of that harm.

Tobin v. Grossman 24 N. In the Tobin case, the court held that no cause of action lies for unintended harm sustained Johnson v. State of New York DAMAGES by one, solely as a result of injuries inflicted directly upon another, regardless of the relationship and whether the one was an eyewitness to the incident which resulted in the direct injuries p. In this case, however, the injury was inflicted by the hospital directly on claimant by its negligent sending of a false message announcing her mother' s death.

Claimant was not indirectly harmed by injury caused to another; she was not a mere eyewitness of or bystander to injury caused to another. Instead, she was the one to whom a duty was directly owed by the hospital, and the one who was directly injured by the hospital' s breach of that duty. Thus, the rationale underlying the Tobin case, namely, the real dangers of extending recovery for harm to others than those directly involved, is inapplicable to the instant case. Nor is Matter of Wolfe v.

There recovery was allowed solely on the elastic basis permitted by the Workmen' s Compensation Law as applied in the courts. Moreover, not only justice but logic compels the further conclusion that if claimant was entitled to recover her pecuniary losses she was also entitled to recover for the emotional harm caused by the same tortious act. The recovery of the funeral expenses stands only because a duty to claimant was breached.

Such a duty existing and such a breach of that duty occurring, she is entitled to recover the proven harmful consequences proximately caused by the breach. Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for a determination of the facts in accordance with CPLR Order reversed, with costs, and case remitted to Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.

In Lafferty v. Manhasset Medical Center Hospital, 54 N. She suffered these upon witnessing a negligent transfusion of mismatched blood into her mother-in-law and upon participating in the events that occurred during the period immediately following the start of the transfusion. Would the court impose liability based upon Johnson v. State of New York? A northbound car, owned by defendant Hertz Corporation, a Delaware corporation authorized to do business in New York, and operated by defendant Ponzini, a citizen of New York, crossed over a double yellow line in the highway into the southbound lane and struck the Steinhauser car heavily on the left side.

The occupants did not suffer any bodily injuries. The plaintiffs' evidence was that within a few minutes after the accident Cynthia began to behave in an unusual way.

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