Thursday, February 26, 2009
Diamond on Negligent Infliction of Mental Distress
John Diamond has published an article critiquing the portions of Tentative Draft No. 5 of the Restatement (Third) of Torts dealing with negligent infliction of mental distress. The article is Rethinking Compensation for Mental Distress: A Critique of the Restatement (Third) Sections 45-47, 16 Va. J. Soc. Pol. & Law 141 (2008)(available on HeinOnline). "Outside of the classic physical accident scenario such as an automobile collision, the Restatement (Third) squelches most actions for negligently inflicted mental distress," he writes. This approach, unlike previous Restatements, may serve as an acknowledgement that tort law can better be substituted by other systems, such as market accountability, regulatory supervisions, and first party compensation. John argues that the law of torts has something valuable to contribute above and beyond these other systems in the context of mental distress. John argues that, as a general principle, "mental distress should at a minimum be compensated when the business activity being held accountable would otherwise escape significant tort liability."