WOMEN, MOTHERS, AND THE LAW OF FRIGHT: A HISTORY – Martha Chamallas & Linda Kerber


tort: injustiça

This article presents a gendered history of the law’s treatment of fright-based physical injuries. Our goal is to connect the law of fright to the changing cultural and intellectual forces of the 20th century. Through a feminist lens, we reexamine the accounts of the legal treatment of fright-based injuries offered by Victorian-era jurists, traditionalist legal scholars of the first 2 decades of the 20th century, a legal realist in the 30s, and a <Freudian> medical-legal commentator from the 40s, all of whom helped to shape present-day tort doctrine. We conclude with an account of Dillon v. Legg, in which the California Supreme Court recognized Margery Dillon’s right to recover for the harm she suffered from seeing her daughter killed by a negligent driver.”

An old English case, Lynch v. Knight, is famous for originating the general proposition that mental disturbance alone does not qualify as a legally cognizable harm.”

The loss of such service of the wife, the husband, who alone has all the property of the married parties, may repair by hiring another servant; but the wife sustains only the loss of the comfort of her husband’s society and affectionate attention, which the law cannot estimate or remedy. She does not lose her maintenance, which he is bound still to supply …” “When the husband was the plaintiff, the loss was viewed as material harm; when the wife sought recovery, the loss was called emotional harm. This legally constructed asymmetry resulted in gender disadvantage to women.”

Adultery for men was forgivable; the same conduct on the part of women was not. Campbell analogized the husband’s injury resulting from a wife’s adultery to the loss of property a total deprivation that occurred regardless of the husband’s subjective response. He relegated the wife’s injury to the non-compensable class of hurt feelings.”

In a prominent case at the turn of the century, Justice Holmes found that the reason for the impact rule was to separate genuine from fraudulent claims, not to separate the physical from the mental. The requirement of an impact was said to function as some guarantee of genuineness. By shifting the rationale from the theoretical to the practical, Justice Holmes helped the impact rule to survive in a significant minority of the states until the 60s. The physical injury requirement is the modem descendant of the impact rule. It requires a plaintiff to demonstrate that her fright resulted in physical injury, rather than only mental distress.”

The bystander rule requires a plaintiff to prove that her injury is traceable to fear for her own personal safety, rather than fear or concern for the safety of another. This restriction gets its name because it prohibits witnesses to accidents from seeking recovery, thus limiting claims to primary accident victims. Many jurisdictions that were unable to tolerate the harsh results of the bystander rule have softened the rule to allow recovery to a plaintiff who feared for the safety of another person, if he or she were also physically imperiled by the defendant’s conduct. The modified amended rule in these states became known as the <danger zone> rule placing the emphasis on the physical location of the plaintiff rather than on the source of the mental distress.”

One court, for example, applied the bystander rule to deny recovery to a mother of a newborn who witnessed a nurse negligently drop her baby onto the tiled floor of a hospital room, fracturing the baby’s skull. (…) the bystander cases more often involved transportation-related injuries; typically, the plaintiff witnessed an automobile driver injure or kill a close family member.”

The history of the doctrine governing fright-based injury often bewilders students in 1st-year torts classes until the doctrine is described as evidence of the law’s gradual evolution toward a more liberal, plaintiff-oriented system of recovery. The scheme becomes more comprehensible when students are told that the old law that virtually closed off recovery for fright-based injuries is gradually being replaced by a more flexible system that permits some classes of plaintiffs to recover, so long as they fall within the new set of boundaries established by the courts in the various states.”

There are few clues as to why women began to seek compensation for fright-based injuries only in the late 19th century. The appearance of these claims may be linked to medical understandings of conditions known as neurasthenia and hysteria. In the 1870s and 1880s, pioneering neurologists, notably George Beard and S. Weir Mitchell, established a connection between mind and body, specifically that mental and emotional problems may produce physical manifestations.” “Beard’s most important treatise is AMERICAN NERVOUSNESS: ITS CAUSES AND CONSEQUENCES (1881) [futuramente no Seclusão]; Mitchell’s is perhaps FAT AND BLOOD: AN ESSAY ON THE TREATMENT OF CERTAIN FORMS OF NEURASTHENIA AND HYSTERIA (5ed., 1888). This understanding rested heavily on the work of the great French physician Jean Martin Charcot, with whom Freud studied briefly.”

Despite these new understandings, the older perception that hysteria was a disorder traceable to the uterus and was therefore peculiar to women continued to persist both inside and outside the medical community.”

Therapy for hysteria reflected this distrust: it involved isolating the patient from all except the doctor, who then dominated the patient emotionally. In short, treatment could be punitive.”

While the availability of neurasthenia as a diagnosis made men, as well as women, more free to confess to anxieties, insomnia, palpitations, impotence, and other nervous disorders, men still lived in a culture that severely inhibited them from publicly confessing weakness.”

The first notable case involving a claim of fright-based injury was an Australian case decided by the Privy Council in 1888. Victorian Railways Commissioners v. Coultas involved a near miss at a railroad crossing. The plaintiff, Mary Coultas, was riding in a buggy with her husband and brother. An employee of the defendant-railroad negligently signaled the buggy to cross and Mary Coultas feared that she and her companions would be killed by the fast-approaching train. Mary Coultas’ husband managed to get the buggy across the track, so that the train passed close to the back of the buggy but did not touch it. Mary Coultas fainted into the arms of her brother and there was medical testimony to the effect that she suffered a severe nervous shock, a miscarriage [no sentido estrito de aborto espontâneo], prolonged physical illness, and impaired memory and eye-sight.” “The conventional wisdom of the time accepted the notion that miscarriages and other birth-related harms could stem from fright or nervous shock and that it was not abnormal for pregnant women to suffer such responses, at least if the stimuli were frightening enough.”

By the 1970s, obstetricians believed that <most spontaneous abortions . . . occur some time after death of the embryo or fetus> and, therefore, <if abortion were caused by (psychic or physical) trauma, it would likely not be a very recent accident but an event that had occurred some weeks before.>

the cases displayed a sympathy for the plight of corporate defendants exposed to claims by a potentially large class of persons. The attitude seemed to be that the infirm, the unfit, and the sensitive must take their chances when they venture outside their homes. The message to pregnant women was that the dangers of injury, and particularly of uncompensated injury, increased on the public streets.”

it was problematic to view pregnancy as extraordinary or unusual because there was always a certain number of pregnant women in every community. (…) For the next 3 decades, Bohlen’s article would serve as the foundation for many of the traditional critiques of the impact rule.”

A typical case arose in Wisconsin in 1935 when Susie Waube looked outside the window of her home and saw her daughter struck and killed by a negligent driver. Susie Waube became <extremely hysterical, sick and prostrated> and died less than a month later. Her husband brought a survival action to claim the recovery to which his wife would have been entitled had she lived. The Wisconsin Supreme Court dismissed the complaint, concluding that the defendant owed no duty to protect Susie Waube from harm.”

When in 1931 Karl Llewellyn listed the nation’s leading legal realists, Leon Green was on the list – a list that also included William O. Douglas, Charles Clark, and Jerome Frank. Green’s work on fright and his more general articles on negligence law were very influential.” “An insightful discussion of the characteristics of the diverse group known as the legal realists is contained in Singer, Legal Realism Now, 1988.” “Green was not interested in debating the logical merits of the impact rule. He preferred to group the cases around factual similarities or situation types, creating 3 new categories: derailment, passenger, and general traffic.” “Ironically, Green’s radical methodology was used to defend the status quo in this area of tort law – Green’s work later would be cited by conservative judges seeking a new rationalization for restrictive legal precedent limiting recovery.”

Despite Green’s realist penchant for fact-sensitivity, he did not analyze the significance of gender as a factor influencing judgment. In the very first paragraph of his fright article, Green made the point that some courts had mistrusted claims of fright-based injuries. He then made a significant observation about the marginalization of this type of law-suit: <Their labels as ‘fright’ or ‘mental suffering’ cases signify the distrust with which they were at first, and still are, regarded by some courts. With few exceptions, recoveries have been restricted to women, and for most part, pregnant women.> That is all Green had to say about gender. His single observation suggests that the fright cause of action is marginal to the law of torts and perhaps that only female plaintiffs stand a good chance of prevailing.” “Green was correct in thinking of fright-based injury as a woman-dominated claim, but his implication that the claims of women were favored by the courts was unsupported by the cases he cited.” “Both Green and Prosser created the impression that women not only dominated the tort but that <mere> men might have a harder time recovering.”

the new field of psychosomatic medicine enabled the physician to diagnose more subtle presentations of psychic disability, not all of which appeared overnight and some of which required <usually a long bombardment with emotional stimuli> over a period of time. Smith had in mind disorders such as asthma, angina, hypertension, colitis, peptic ulcers, gastritis, anorexia nervosa, and psoriasis.”

Males venture into places of peril as much as females and so are as frequently exposed to (trivial impacts or psychic stimuli). But the male is usually the breadwinner; his thoughts are distracted from his experience by the tasks of his job, and further, he has much to lose and little to gain by developing a neurosis. The female is usually at home, has more time to ponder upon the experience, and more to gain and less to lose from developing symptoms. The independent post-accident psychological forces conducing to neurosis are apt to be more potent in her case.” O antiquado Smith

He found that the ratio of female plaintiffs to male among his cases was a striking 5:1.”

Smith even ventured to explain why women sue more often in impact cases: <We might theorize that more women than men suffer ‘injury from without’, either because they frighten more easily or in fleeing from apprehended peril, are handicapped by lack of athletic prowess or masculine agility and so fall victim to comparative clumsiness. (…) It well may be that the male ego is too compromised by claiming injury through fright, this deterrent to suit being bolstered by social taboos. After all, one has to face a jury, and he does not like to become an ass before his fellow man. A woman’s <femininity> is not hurt by such a claim.>”

Skeptical of both the claims of women in fright cases and of men who claimed combat neurosis, Smith saw the situations as analogous because he believed that, in both settings, the victim stood to gain by pleading weakness a situation otherwise uncommon.” “Smith’s application of Freud to legal doctrine prompted him to notice gender but in the process to reinforce gender inequality.” Não entendeu nada de F.

Shall it be the sturdy phlegmatic chap who has been building up his biceps at the Y.M.C.A. the fragile fellow whose resistance is subnormal, or the average man in normal health, toughened and seasoned by everyday stimuli of the knock-about world?”

The breakthrough case that first permitted recovery for mothers who witnessed their children’s injury was a California appellate decision written by Justice Matthew O. Tobriner in 1962. At the time Amaya v. Home Ice, Fuel & Supply Co. was decided, the courts seemed to be hardening their stance against recovery in <bystander> cases, except in the rare <danger zone> situation in which the plaintiff was also physically imperiled.”

Lillian Amaya watched from a distance of 80 feet [~20m] as her 17-month-old son was crushed beneath the wheels of a negligently driven ice truck in the driveway of their home.”

Tobriner’s ruling for the plaintiff in Amaya was reversed by the California Supreme Court in a 4-3 decision. In fact, the result was even closer than the split indicated. By the time of the supreme court ruling, Justice Tobriner had himself been elevated to the supreme court. Unfortunately for the plaintiff, however, Tobriner was required to recuse himself from the Amaya litigation in the supreme court because he had decided the case in the lower court. The judge sitting in for Tobriner supplied the critical vote against the plaintiff to produce the very shakiest of precedents against recovery.”

Only 5 years after deciding Amaya, the California Supreme Court overruled it in Dillon v. Legg. Justice Tobriner wrote for the new majority in 1968. He stressed that the plaintiff was a mother, not an ordinary bystander, who witnessed the negligent killing of her child.”

Tobriner would not allow the ruling in Dillon to depend on this narrow factual distinction. Instead, he flatly rejected the danger zone approach as a <hopeless artificiality> that would produce the anomalous result of granting <relief to the sister… and yet deny it to the mother merely because of a happen-stance that the sister was some few yards closer to the accident>. The new rule announced in Dillon was that liability would depend on the more flexible test of whether the accident and the harm were reasonably foreseeable. Tobriner expressly noted that the closeness of the relationship between the plaintiff and the victim should be a key determinant of foreseeability. The old physical danger zone was transformed by Tobriner into a larger zone of emotional danger.”

In Bakke, the social change Tobriner wished to support was the integration of black students into medical schools. His dissent remains an eloquent defense of affirmative action as entirely consistent with the goals of the 14th amendment.”

Neither Margery Dillon nor her lawyers, so far as we can tell, understood their victory in terms of women’s rights. It is also unlikely that the judges who dissented in Amaya or joined the majority in Dillon understood themselves to be responding directly to the gendered nature of the issues in these cases. Subsequent legal commentators have also ignored the role that gender played in Dillon.”

It appears that Margery Dillon supported her children without help from her ex-husband. In her wrongful death complaint, Dillon alleged that her ex-husband had not contributed materially to Erin’s support and maintenance before her death.”

Guido Calabresi is one of the few commentators who goes beyond cost-benefit assessments to acknowledge tort law’s role in <shaping tastes>. Calabresi claims that the law is more likely to compensate for an emotional cost when the harm is intuitively <shocking, offensive, and even abominable>.”

<Mother love> surely was not a creation of America in the 60s. Why, then, did it take so long for the courts to produce Dillon?”

The years between 60, when an ice truck injured James Amaya, and 68, when Tobriner handed down the California Supreme Court’s decision in Dillon, were transitional years in American social history. They marked the end stages of an era that we remember as <the cold war>, a period usually dated from 1945 to 65 or so, in which an overarching demand for security in foreign affairs filtered into a <domestic revival> that offered marriage and motherhood as the only appropriate roles for women.” “in 60, 40% of women over 16 held a job, and 1/3 of working women were mothers of children under 18.”

As Amy Swerdlow’s study of Women Strike for Peace has shown, when thousands of women wanted to protest atomic bomb testing in 1961, they found that the most effective strategy indeed, the only effective strategy available to them was to organize as mothers who feared for the health of their children and who worried particularly about strontium-90 in milk. Any other stance was vulnerable to being attacked as unwomanly, un-American, and pro-Communist.” [!!]

It is also clear that the Dillon judges were writing in the intensely political year 68, toward the end of a decade in which both the civil rights and anti-war movements had been conducting a national teaching, as it were, on the topic <the personal is political>. The Presidential Commission on the Status of Women, chaired by Eleanor Roosevelt, had been established in 1961. Betty Friedan’s manifesto The Feminine Mystique had been published in 1963, one year after the Amaya decision was handed down. When Dillon was decided, a 2-year-old National Organization of Women had articulated a call for an equal rights amendment, for access to safe, legal abortions, and for the enforcement of anti-discrimination legislation. In 68, feminists picketed the Miss America pageant.”

The wrongful birth cause of action complements the Dillon claim in that it gives legal recognition to the interest women have in their relationship to their unborn children. The wrongful birth cause of action pressures health professionals to make sure that a pregnant woman (or a woman contemplating pregnancy) is advised of any condition that might affect her own well-being or that of her unborn child. By enlarging the physician’s duty, this cause of action tends to expand the notion of women’s health to include reproductive health and health of offspring.”

That recognizing difference may lead to marginalization, while ignoring difference may lead to inequitable results, has long been the Scylla and Charybdis of feminist theory. A major goal of feminist theory is to find a route past these monsters” “Tort law began to respond to women’s interests at a transitional moment in which the cold war’s reification of domesticity began to give way to the contemporary women’s movement for social change.”

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