a person of normal fortitude or “ordinary phlegm”
VI. Can’t Buy Me Love: A True Analysis of NIED
Without the impact rule, a traditional foreseeability analysis for NIED cases
can be applied
Yet while this would help to prevent arbitrary compensa-
tion decisions, reliance on foreseeability alone is not enough, as evidenced
by the confusion in the California courts. Florida should not therefore be
content with merely
the California approach to NIED cases; in-
stead, that should be
to establish an even more equitable and
predictable model. Additional limiting factors need to be recognized as part
of the analysis of proximate cause in order to stem the wave of litigation
that would otherwise flood the courts if the test for liability were to become
foreseeability alone.
The first step in the analysis should be to divide claimants into two
classes: primary and secondary victims. As has already been explained, a
primary victim is one who suffers personal injury (whether physical or psy-
chological) as a direct result of another’s negligent conduct; a secondary
victim is one who suffers psychological injury as a result of fear, appre-
hension, or perception of another person’s being harmed by a third party’s
negligent conduct. When distinguishing between primary and secondary
victims, the focus is not on the type of injury sustained, but on who sus-
tained it.
Page v. Smith
(Lord Lloyd of Berwick).
Willis v. Gami Golden Glades, L.L.C.
(Pariente, J. concurring; Cantero, J. dissenting).
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