The South Fork Fishing and Hunting Club provided recreation for Pittsburgh’s societal elite back in the days when Pittsburgh was the steel capital of the world.
In the 1880s, at the height of the First Golden Age, the club purchased a dam and reservoir on the South Fork of the Little Conemaugh River (which by New Mexico standards is anything but little), high on the western slope of the Appalachians.
Families whose names survive today on behalf of great cultural institutions – the Fricks of the Frick Collection, the Carnegies of Carnegie Hall – escaped the pollution of the factories they owned by spending the summer on the mountain lake .
The dam had been built with discharge pipes to prevent rising water from overflowing it. But at some point before May 31, 1889, the pipes were removed. Heavy rains that day caused the reservoir to overflow and the dam to rupture.
Fourteen miles downstream was the small town of Johnstown.
An explanatory website by Casey Goldberg, hosted by Bowdoin College (which includes startling photographs), describes what happened next: “Twenty million tons of water rushed towards the city, forming a wall of water. thirty-five feet high. A telephone operator… explained that the wave looked like “a mountain coming up”.
More than 2,200 people were killed in the flooding. Buildings that were not washed away burned in fires fueled by ruptured gas lines.
The catastrophe approached the scale of September 11, and there was never any serious doubt about who was responsible. But, as readers of David McCullough’s book “The Johnstown Flood” know, the final chapters of the saga cause their own shock.
All legal attempts to hold the club and its officers accountable for the disaster have failed. The tort law in America was not yet developed to the point of imposing a legal obligation on landowners – well, super rich landowners, at least – to pay compensation for those they killed and whose they destroyed the property through negligence.
Lawmakers of the day, in the judicial and legislative branches, placed a higher priority on keeping tort liability within strict limits than on fair compensation for injured parties.
Today, in any roughly similar scenario, those directly injured by the negligence of the plutocrats would almost certainly prevail in their tort lawsuits. But that doesn’t mean our legal system has removed arbitrary limits on tort liability. We just moved the fence, that’s all.
Consider those who survive a disaster without physical injury but suffer from PTSD because of the scenes they witness. The Goldberg website reports that some Johnstown residents fled the flooding only “to see their friends and family perish.”
After all we have learned about PTSD in military veterans, no one can doubt the intensity of their suffering. But it wasn’t until 1968 that U.S. courts first granted those in their circumstances the right to recover from their trauma.
That year, in a landmark ruling, the California Supreme Court ruled that a mother who saw her daughter killed by a reckless driver on a residential street could sue for what was known as the negligent infliction of emotional distress, or NIED.
But as soon as the courts recognized a spectator’s right to recover from the trauma of witnessing another person’s death, they erected new fences to keep the new crime within strict limits.
After all, complete strangers, seeing a little girl hit by a car at high speed, would also be shocked and upset. Should they be allowed to recover, just like the girl’s mother?
In New Mexico, our Supreme Court answered this question with a firm “no”. Here, passers-by can claim damages for NIED only if they are family members.
Our courts justify this inflexible demand by asserting that the NIED is “an offense against the integrity of the family unit”. But this verbal formula does not really explain what the courts do.
To be eligible for recovery, an individual family member must perceive the disaster as it occurs. As a result, the individual must experience severe emotional shock. Compensation, if paid, goes to the individual and not to the family. NIED is a crime against the individual.
Concretely, our courts are only continuing the long judicial tradition of closing tort liability. Our judges continue to oppose the full implementation of the principle that negligent persons should be held liable for the damages they cause.
New Mexico recently made international headlines with a tragic death on the job. I don’t think anyone questions the psychological harm that could result from the death of a colleague as a result of someone else’s negligence.
But in the absence of a family relationship (or a change in the law), such negligently inflicted emotional distress is not considered NIED.
Joel Jacobsen is an author who retired in 2015 after a 29-year legal career. If there are any topics you would like to see covered in future columns, please write to him at firstname.lastname@example.org.