Liability & Fear
Christopher P. Guzelian
Thomas Jefferson School of Law
Ohio State Law Journal, Vol. 65, No. 4, 2004
Stanford Public Law Working Paper No. 90
Fear of physical harm or death has been compensable for a century. Fear, unlike other injuries, is subjective, difficult to quantify, and could lead to limitless liability. Courts, perceiving a need to address and deter emotional harms, accordingly seek to restrict the amount of fear liability (if there should be any at all).
Emotional liability restrictions, however, rely upon scientifically baseless guidelines. Courts place all fear liability on creators or perpetuators of risks of physical harm - physicians, environmental polluters, product manufacturers, government (including regulatory and law enforcement agencies), and so forth. This liability assignment does not reflect fear's etiology. The courts are simplistically impugning that where a person or entity has created or increased another's risk of physical harm, the victim suffers fears either contemporaneous with the harm or in anticipation of the future harm. Scientific and sociological research indicates that most modern fears are instead predominantly results of risk information (whether correct or false) that is communicated to society by various sources (most notably the media), not simply products of being at scientifically known (epistemic) risk(s).
This article rejects current fear liability allocations. Instead, consistent with settled general principles of liability, it proposes that the media and others who negligently or intentionally skew public risk perceptions must share liability for clinically serious fears of physical harm or death.
Keywords: Fear, Emotional Distress, Risk, Epistemic Risk, Media, Risk Communication, Risk Perception, Tort, Liability
JEL Classification: D81, D61, D62, D80, D83, K13, K32, Z00Accepted Paper Series
Date posted: April 7, 2004 ; Last revised: December 3, 2009
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