Date: Fri, 14 Jul 2006 14:44:59 -0600

From: Lewis Klar

Subject: A Fly in the Bottle This Time

One proviso to my last comment:

Even if (as I assert) reasonable foreseeability of injury is a question of fact, a perverse finding on this is an error of law, which can of course be reversed on a standard of correctness. So if the C of A finds that for the trial judge to hold that it is reasonably foreseeable that a person of normal susceptibilities can suffer psychological injury as a result of seeing a dead fly in a bottle is a perverse finding, it can reverse. (Which it might do.)

Lewis

>>> "Benjamin Zipursky" 7/14/2006 2:35 PM >>>

Note that even if nervous shock were foreseeable, the plaintiff in this case was not simply making a larger than normal claim for nervous shock due to a larger than normal extent of shock, he is making a claim that psychiatric disease was caused by the fly. I think it is plausible to treat the nervous shock and the psychiatric disease as different categories of injury, not simply different degrees of harm or damage.

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