This article presents a gendered history of the law's treatment of fright-based physical injuries. Our goal is to connect the law of fright to the changing cultural and intellectual forces of the twentieth century. Through a feminist lens, we reexamine the accounts of the legal treatment of fright-based injuries offered by Victorian-erajurists, traditionalist legal scholars of the first two decades of the twentieth century, a legal realist in the 1930s, and a Freudian medical-legal commentator from the 1940s, all of whom helped to shape present-day tort doctrine. We conclude with an account of Dillon v. Legg, in which the California Supreme Court recognized Margery Dillon's right to recover for the harm she suffered from seeing her daughter killed by a negligent driver.
This examination of the history of the law of fright shows that gendered thinking has influenced the law, but has remained unexamined. We make three basic observations. First, we claim that the legal categories of "physical" and "emotional" harm are not unrelated to the gender of the victims. Women who have suffered fright-induced physical injuries have been disadvantaged by the legal classification of their injuries as emotional harm. Second, we demonstrate how the legal system has placed women's fright-based injuries at the margins of the law by describing women's suffering for the injury and death of their unborn and born children as remote, unforeseeable, and unreasonable. Finally, we raise the possibility that the claims of female plaintiffs in these fright cases - plaintiffs such as Margery Dillon should be viewed as women's rights claims, as attempts to pressure the legal system to recognize and value the interests of women. By constructing a gendered history of this legal claim, we aspire to reclaim Dillon for women and to contribute to a feminist reconstruction of tort law.
Martha Chamallas & Linda K. Kerber,
Women, Mothers, and the Law of Fright: A History,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol88/iss4/4