Date: Mon, 17 Jul 2006 17:22:38 -0400

From: Benjamin Zipursky

Subject: A Fly in the Bottle This Time

I intended to send (roughly) the following e-mail on Friday afternoon (and thought that I had done so), but do not know whether it went through (I heard from another on the list that it did not):

I do think the appeal should be granted. I would reject liability for the psychiatric disease altogether, and recognize a products liability or negligence action with minimal, almost contract-like damages for the defective product, with possibly a small modicum of emotional harm damages of a kind that typically accompanies repulsion from defective food products (which is not all that uncommon).

What is obviously difficult in this case is that the two sides line up as follows, doctrinally: for plaintiff, there should be some form of liability for the defective product, and some form of non-physical harm damages should be available, and, in general, the egg shell skull rule applies; moreover, psychiatric illness is real illness, and the evidence here that he was not malingering is pretty strong. On the defense side - which seems to me stronger, given the whole picture of the case - this is a man with a major psychiatric illness that, while perhaps triggered by this incident, is not plausibly understood as having been caused by it.

For better or worse, I think this is just where proximate cause jumps in. The easiest - and in some ways the most plausible - way to dispose of the case is simply to reverse on proximate cause on the ground that this is unforeseeable. The court's factual argument otherwise is implausible enough, given what a mixed question "foreseeability" is, to reverse as a matter of law As a judge, I might take this route.

But analytically, this is, in my view, really a risk rule problem. The reasons it is tortious or negligent to sell water bottles with dead flies (or to fail to take reasonable care not to do so) inside is because of the risk of transmitting bacteria and the risk of grossing people out or shocking them in some acute way, not because of the risk of a major depression. Because of the mismatch between the injury and the risk, I think proximate cause fails.

Sorry of this already went through. And I think it overlaps with some of what others have said.

Sincerely,
Ben Zipursky
Fordham Law

>>> Lewis KLAR 7/14/2006 8:33 PM >>>

Hi Jason:

You raise a different error and I agree that if the trial judge did not apply the test of reasonable foreseeability of psychological injury as the test, it would be an error of law. I have to take a look again as to whether that was the test he applied or not.

But assuming that the trial judge did apply that test and came to the conclusion that psychological injury was reasonably foreseeable, I take it that you would agree that that would be a finding of fact, not reversible on a simple correctness standard.

Right?

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