Hastings Law Journal


John L. Diamond


In its 1968 decision of Dillon . Legg, the California Supreme Court rejected the majority rule and permitted a bystander who had not been in the zone of physical danger to be compensated for negligent infliction of mental distress. The court held that the defendant owed a duty to allforseeable plaintiffs, and enunciated three guidelines to help courts measure forseeability. Sixteen years later, the meaning and wisdom of the Dillon decision are still debated. The Article first briefly reviews Dillon and its progeny, focusing on the courts' mechanical application of the Dillon guidelines and the inequitable distinctions that have resulted. The Article explores how the Dillon guidelines do not guide and how foreseeability itself is an inadequate mechanism for determining damages. After examining recent developments in intangible tort law in the California courts, the Article argues that the time has come for a new, unified theory of compensation for intangible injuries.

The Article concludes that the courts, while extending defendants' liability for mental distress to all foreseeable plaintiffs, should restrict the types of damages that are recoverable. By restricting compensable damages to economic loss and substantially extending such recovery to include loss of consortium and parent- and child-society claims, the courts could develop an equitable and reasoned basis for compensation.

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