248
MICHAEL J. LABBEE
familial members of the primary victim’s household
.
81
The power to decide
on the close familial relationship factor is in the province of the judge as it is
a question of duty
.
82
Once it has been determined that the defendant owed
the primary victim a duty of care, and the secondary victim’s relationship to
the primary victim was close enough to warrant applying that same duty to
the secondary victim, the trier of fact would then be required to determine
the same issues as described above in relation to primary victims, namely:
whether the defendant had breached its duty; whether any such breach
was the “cause in fact” of the secondary victim’s emotional distress; and
whether emotional was a foreseeable type of harm in the circumstances.
Three Additional Limiting Factors
Yet, while it is necessary to analyze cases of NIED according to whether
the person suffering emotional distress was a primary or secondary victim,
that distinction is insufficient. For it does not address the point that, as
aptly described by the
La Chusa
court, not all emotional harm should be
compensable:
Emotional distress is an intangible condition experienced by
most persons, even absent negligence, at some time during
their lives. Close relatives suffer serious, even debilitating, emo-
tional reactions to the injury, death, serious illness, and evident
suffering of loved ones. These reactions occur regardless of
the cause of the loved one’s illness, injury, or death. That rel-
atives will have severe emotional distress is an unavoidable
81
Thing v. La Chusa
,
.
82
McCain v. Florida Power Corporation
,
.
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