Elden v. Sheldon, a case recently decided by the California Supreme Court, may represent a new era for California's law of negligent infliction of emotional distress. Richard Elden, the plaintiff in the case, sued for emotional harm resulting from the death of his live-in lover in an automobile accident negligently caused by the defendant. The Elden court departed from the Dillon v. Legg three-factor test, which emphasizes foreseeability of harm to determine liability. Instead, the court relied on policy reasons to deny recovery to the plaintiff. Although the plaintiff and the victim were in a close relationship, one factor of the Dillon foreseeability test, the Elden court cited the state's interest in promoting marriage as a reason to deny recovery for the plaintiff's emotional harm. This Comment examines the history of the tort of negligent infliction of emotional distress, then discusses the criticisms of the Dillon test and analyzes the appropriateness of foreseeability as a measure of liability for the tort. The Comment finds that although the foreseeability rule has its shortcomings, it is better than Elden's use of inadequate policy justifications to bypass the Dillon test, drawing arbitrary distinctions and setting bad precedent. The Comment suggests that the court may have had unstated reasons for its holding. Finally, the Comment presents more rational alternatives by which the Elden court could have decided the case.
Timothy M. Cavanaugh,
A New Tort in California: Negligent Infliction of Emotional Distress (for Married Couples only),
41 Hastings L.J. 447
Available at: https://repository.uchastings.edu/hastings_law_journal/vol41/iss2/6