Academic journal article Harvard Law Review

Tort Law - Negligent Infliction of Emotional Distress - D.C. Court of Appeals Allows Recovery for Emotional Harm outside Zone of Danger

Academic journal article Harvard Law Review

Tort Law - Negligent Infliction of Emotional Distress - D.C. Court of Appeals Allows Recovery for Emotional Harm outside Zone of Danger

Article excerpt


Courts have traditionally been reluctant to compensate victims of "pure" emotional harms accompanied by neither predicate nor consequent physical injury. Beginning in the late nineteenth century, however, many jurisdictions gradually expanded tort liability for negligent infliction of emotional distress (NIED), first through the "impact" rule, which allowed recovery when even trivial physical contact was made, (1) and later through the "zone-of-danger" rule, which allowed recovery absent contact when the plaintiff suffered a near miss. (2) Recently, in Hedgepeth v. Whitman Walker Clinic, (3) the D.C. Court of Appeals further relaxed restrictions on NIED recovery, allowing a claim by a patient who suffered severe distress, but no physical injury, as a result of being misdiagnosed as HIV positive. With Hedgepeth, D.C. joined a growing number of jurisdictions that have extended NIED beyond the traditional zone-of-danger rule. (4) But in so extending, the court created a new rule when it could simply have eliminated an old one. The result is added complexity in an area of law already marked by administrability concerns and doctrinal fractures.

On December 13, 2000, after learning that his girlfriend was infected with HIV, Terry Hedgepeth visited the Whitman Walker Clinic to get tested. (5) The clinic took a blood sample and sent it to an off-site testing facility, which returned the result "non-reactive." (6) Although this meant Hedgepeth was not HIV positive, a staff member misinterpreted the result and prepared a form indicating that Hedgepeth in fact had HIV. (7) Dr. Mary Fanning subsequently reported this erroneous result to Hedgepeth. (8)

For the next five years, Hedgepeth believed he was HIV positive. (9) He developed depression and suicidal thoughts, which culminated in multiple admissions to psychiatric wards and prescriptions for antidepressants. (10)

He lost his job, began using illegal drugs "heav[ily]," developed an eating disorder, and started having sex with a woman he knew was HIV positive. (11) He became alienated from relatives, including his twelve-year-old daughter. (12) In June 2005, however, Hedgepeth visited the Abundant Life Clinic to undergo another HIV test. This test came back negative, as did a follow-up test at another clinic several weeks later. (13)

Hedgepeth sued the clinic and Dr. Fanning for NIED in D.C. Superior Court. (14) The trial judge granted summary judgment for the defendants, relying on Williams v. Baker, (15) and a panel of the D.C. Court of Appeals affirmed. (16) Williams had adopted the zone-of-danger rule, under which a plaintiff may recover for NIED only if his physical safety has actually been threatened. (17) Since Hedgepeth was outside the zone of danger - he did not have HIV and so his physical safety was never actually threatened

- he could not recover for the emotional harms he suffered. (18) However, one member of the three-judge panel wrote a concurrence urging an en banc rehearing to revisit Williams. (19) Hedgepeth's petition for rehearing was granted, (20) and the question of whether Williams's zone-of-danger rule should preclude Hedgepeth's recovery for NIED absent imminent physical danger went before the full Court of Appeals. (21)

The D.C. Court of Appeals, sitting en banc, reversed. (22) Writing for the court, Judge Ruiz first emphasized that the court was not overruling Williams completely: the zone-of-danger rule "continues to be generally applicable" to NIED claims. (23) However, the court created a "supplement[al]" (24) rule establishing a new category of liability. Under the court's holding, the lack of imminent physical harm no longer bars recovery when the defendant has entered into a special relationship with the plaintiff or begun an "undertaking" that necessarily implicates the plaintiff's emotional well-being. …

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