236
MICHAEL J. LABBEE
Without making a clear distinction between primary and secondary vic-
tims, the courts will inevitably continue to struggle with NIED cases.
V. Across The Universe: How Other Jurisdictions
Have Tried to Fix The Problem
The primary goal of the law of negligence is to compensate plaintiffs appro-
priately for injuries that a defendant could foresee being caused by his or
her actions
.
56
Traditional tort theory states that duty establishes the fore-
seeable claimants, while proximate cause identifies the types of injuries
that are foreseeable and for which the defendant is therefore liable. In-
deed, it is worth emphasizing that, if a plaintiff can foreseeably be injured,
the
type
of injury is the limiting factor of proximate causation, not the man-
ner in which the injury occurred
.
57
Thus, if the court finds that psychological
damages are foreseeable, it should be irrelevant whether or not the plaintiff
was touched (for that relates to the manner in which the injury was caused).
The impact doctrine was born out of a time when emotional and psy-
chic trauma was more difficult to recognize and evaluate. But since, as the
Florida Supreme Court acknowledged in
Willis
,
58
we now have a better un-
derstanding of — and medically-recognized diagnostic tests for — serious
emotional injury, there is no longer any reason to base recovery on an ar-
bitrary — and perhaps otherwise negligible — impact. The current state of
the impact rule means that plaintiffs like Mrs. Willis will find that the dividing
56
McCain v. Florida Power Corporation
,
.
57
Id.
at 502.
58
Willis v. Gami Golden Glades, L.L.C.
,
.
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