Date: Fri, 14 Jul 2006 14:37:58 -0600

From: Lewis Klar

Subject: A Fly in the Bottle This Time

Jason raises a very interesting point. Is the question of whether it was reasonably foreseeable that the plaintiff, as a reasonable person, could suffer injury as result of seeing a dead fly in a bottle a question of fact or a question of law (or a question of mixed fact and law)? I take the position that ordinarily foreseeability of injury is a question of fact and I say so in my book (at p. 156). I say that in a case tried by a jury, "it is up to the jury to determine whether injury to the plaintiff was foreseeable ... etc". Am I wrong? Do you think that the issue of whether in any particular case, on the facts of that case, an injury (either physical or psychological) to the plaintiff was reasonably foreseeable is a question of fact or a question of law? I know that with psychological injuries the issue is more focused; that is we ask whether a psychological injury was reasonably foreseeable to a person of normal susceptibilities, but do you think that this means that this turns the question into a question of law?

Views?

Lewis

>>> Jason Neyers 7/14/2006 2:24 PM >>>

Dear Colleagues:

I strongly disagree with Lewis. I do not think that the case is correctly decided as a matter of law: It is not reasonably foreseeable that a person of ordinary fortitude would suffer a psychiatric illness as a result of the facts that occurred. In order for the thin skull rule to kick-in I must first prove something that would be considered a wrong to a reasonable/typical person, if I prove that then the extent of the injury is irrelevant (Deyong). As such thin skull is irrelevant to Mustapha.

I would be shocked if this is not overturned on appeal on the tort issue.

Whether or not there might be liability in contract is another matter and part of the problem with the judgment, as I remember it, is that the trial judge never truly distinguishes between the two types of liability.

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