Is it clear that the distinction the Court is groping for, or should grope for, is one between frail plaintiffs and crazy ones? It seems to me that there is another distinction that would yield the desired result that is less arbitrary, namely one involving the normal range of variation. To take your example of the elderly pedestrian, determining forseeability on the basis of a healthy young adult is to use a fairly small segment of the class of potential victims, and furthmore, one near the maximum resistance to injury, as the basis. However, any driver knows that many pedestrians are middle-aged or elderly or small children and can therefore forsee the need to drive in such a way as to avoid injury to pedestrians other than healthy young adults. It is therefore reasonable to hold a driver responsible for the sort of injury that an accident might cause to a frail elderly person or a small child. On the other hand, the driver cannot reasonably forsee that a pedestrian would have the proverbial eggshell skull or some other rare medical condition. So perhaps the right criterion is not a distinction between physical and mental but rather something like “within two standard deviations of the mean”.

Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for purposes of damages. As stated in White, at p. 1512, focusing on the person of ordinary fortitude for the purposes of determining foreseeability “is not to be confused with the ‘eggshell skull’ situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected”. Rather, it is a threshold test for establishing compensability of damages at law.

And the quote about “reasonable fortitude” plainly cannot be taken at face value. If a Canadian driver negligently collided with an aged, osteoporotic pedestrian, I cannot imagine that Canadian law would measure damages according to the injuries that a healthy young adult would have suffered. In essence, the court seems to be groping for a test that limits “eggshell” status to preexisting physical conditions but not mental disabilities (i.e., that distinguishes frail plaintiffs from crazy ones).

It would have been doctrinally clearer if the Court had expressly disposed of the case on causation grounds, since that’s in effect what the decision does. Essentially, this case is Palsgraf v. Long Island Railroad.

The eggshell plaintiff rule is a rule of damages and not proximate cause (scope of liability), but it is easy to see how the two are confused. In physical injury cases, for the scope of liability/proximate cause inquiry courts ask if any type of physical harm was reasonably foreseeable, and if it was foreseeable, the tortfeasor is liable for the full extent of the harm. In a negligent infliction of emotional distress claim, the scope of liability question becomes was any actionable emotional distress foreseeable. The difference between the two inquiries is that for physical harms the court does not consider the extent of the harm when determining if it was reasonably foreseeable because it is assumed that all physical harms are actionable. While for NIED, not all distress is actionable, and, thus, only negligence that would foreseeably cause severe emotional distress is actionable.

I think the court’s rule that NIED is only recoverable if an objective person would be disturbed limits the scope of liability without limiting the size of damage awards is limited to the tort of NEID. The court’s rule could easily be imported to an American jurisdiction by arguing that the court is making a special rule of proximate cause for NIED claims not tied to a physical injury. So even if you have an expert come in a testify that the negligence was the cause in fact of the emotional distress, there is still the legal inquiry to determine whether the defendant’s negligence was the proximate cause of the severe emotional distress.

Figuring out what is reasonably foreseeable is a whole other bottle of flies.

Even assuming that the Ohio statute is representative of products liability law in all American states, I don’t see why it would allow Mustapha’s claim.

The relevant section of the statute says: ” ‘Harm’ means death, physical injury to person, serious emotional distress, or physical damage to property other than the product in question. Economic loss is not ‘harm.’ ”

To me, that statute doesn’t preclude a court from dismissing a emotional distress claim where the alleged “distress” is something no reasonable man would suffer. Perhaps Ohio courts have held otherwise. But I do think that it is stretching a bit far to cateogorically say that in America this case would’ve turned out differently. I think that it stands a fair chance of getting thrown out in any court.