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MICHAEL J. LABBEE
factual cause of the plaintiff’s injuries) whether the type of harm suffered
(pure emotional distress) was foreseeable.
As was stated in
McCain v. Florida Power Corporation
, “harm is proxi-
mate in a legal sense if prudent human foresight would lead one to expect
that similar harm is likely to be substantially caused by the specific act or
omission in question.
80
Only if the jury determined that the plaintiff had
suffered foreseeable emotional distress would the claim be arguable (and,
even then, it would be subject to further limiting factors outlined below.)
Among other things, this provides a significant guard against fraudulent
claims.
Secondary Victims
For secondary victims, the analysis required is slightly longer but provides
an equally predictable framework. Unlike primary victims, secondary vic-
tims should not be treated as being owed an independent duty of care by
the defendant, and so the English position on this point should be rejected.
There are two reasons for this rejection. First, if the duty of care owed
to a secondary victim is independent of that owed to a primary victim, then
arbitrary results may occur. Suppose a defendant, negligently driving, runs
over a child playing outside of his home and narrowly misses hitting the
mother. If the mother suffers emotional distress from the sight of her child
being killed, she could recover purely emotional damages based on an
independent duty of care owed to her by the defendant (since she was
a foreseeable victim of his negligent driving). Now suppose the mother
was inside the home at the time of the accident but witnessed it through a
window on the second floor. In this scenario the mother witnessed the same
80
McCain v. Florida Power Corporation
,
.
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