action against his attorney. The police allegedly made a false arrest and, due to negligent representation by his attorney, plaintiff was confined to a psychiatric hospital. Plaintiff prevailed and was awarded damages for mental distress. On appeal, the attorney argued that his former client was not entitled to receive damages for emotional distress and that recovery in a legal malpractice action was limited to economic loss. In affirming the lower court, the First Circuit held that "an attorney who commits malpractice is liable to his client for any reasonably foreseeable loss caused by his negligence including emotional distress resulting from the loss of liberty." Id. at 222.
In this diversity case, this court must decide the issues in accordance with the law of New Jersey. Erie Railroad Company v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). Damages for emotional distress have been allowed by New Jersey courts in an increasing number and variety of contexts. See, e.g., Ayers v. Jackson Township, 106 N.J. 557, 525 A.2d 287 (1987) (fear of cancer by residents who alleged exposure to toxic waste may provide a basis for a claim of emotional distress); Saunderlin v. E.I. DuPont Co., 102 N.J. 402, 508 A.2d 1095 (1986) (fear of cancer attributable to exposure to work place asbestos may provide a basis for a claim of emotional distress where injury is demonstrable by objective medical evidence); Procanik by Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984), discussed below; Evers v. Dollinger, 95 N.J. 399, 471 A.2d 405 (1984) (negligent delay of surgery may cause emotional distress where delay exacerbated patient's disease); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980) (mother who watched seven-year old son suffer and die had cognizable claim for negligent infliction of emotional injury); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979) (emotional distress damages are appropriate in certain actions for medical malpractice); Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 301 A.2d 754 (1973) (emotional distress damages may be awarded for the intentional violation of civil rights law); Falzone v. Busch, 45 N.J. 559, 214 A.2d 12 (1965) (emotional distress damages are recoverable where defendant operated automobile in a manner that put plaintiff in fear for her life); NPS Corp. v. Insurance Co. of North America, 213 N.J. Super. 547, 517 A.2d 1211 (App. Div. 1986) (bodily injury as defined in insurance policy included claims for emotional distress caused by sexual harassment); Strachan v. John F. Kennedy Memorial Hospital, 209 N.J. Super. 300, 507 A.2d 718 (App. Div. 1986) (inappropriate handling of dead body may provide a basis for a claim of emotional distress); Pushko v. Board of Trustees of Teachers' P & A, 202 N.J. Super. 98, 493 A.2d 1309 (App. Div. 1985), on remand 208 N.J. Super. 141, 505 A.2d 154 (App. Div. 1986) (teacher entitled to accidental disability pension where traumatic events caused psychiatric disability); State v. Thompson, 199 N.J. Super. 142, 488 A.2d 1044 (App. Div. 1985) (robbing a store may cause mental or nervous shock to victim); Eyrich for Eyrich v. Dam, 193 N.J. Super. 244, 473 A.2d 539 (App. Div. 1984), cert. denied 97 N.J. 583, 483 A.2d 127 (1984) (emotional distress damages recoverable by parents of child who was severely injured at circus even when specific physical injuries to parents are not alleged); State v. Diaz, 188 N.J. Super. 504, 457 A.2d 1223 (App. Div. 1983) (New Jersey Criminal Injuries Compensation Act defines "personal injury" as actual bodily harm, including mental or nervous shock); Muniz v. United Hsps. Med. Ctr. Pres. Hsp., 153 N.J. Super. 79, 379 A.2d 57 (App. Div. 1977) (parents of deceased child had cognizable claim for emotional distress against hospital where hospital staff misplaced corpse); Lemaldi v. DeTomaso of America, 156 N.J. Super. 441, 383 A.2d 1220 (Law Div. 1978) (emotional trauma caused by the continued, uncorrected malfunctioning of an automobile may support a cognizable claim for emotional distress where evidence is sufficient to prove actual injury).
In Berman v. Allan, supra, the parents of a child with Downs Syndrome brought a medical malpractice action against a doctor who failed to inform them of the availability of an amniocentesis procedure prior to the child's birth. The court held that the mental and emotional anguish of the parents was compensable. The court noted that "courts have come to recognize that mental and emotional distress is just as 'real' as physical pain, and that its valuation is no more difficult." Id. 80 N.J. at 433.
The Supreme Court of New Jersey endorsed a cause of action for emotional distress in Procanik by Procanik v. Cillo, supra. In Procanik, an infant sought damages against several physicians for birth defects and an impaired childhood. The infant's parents sought damages for emotional distress and extraordinary medical expenses attributable to those defects. The court declined to recognize a cause of action for impaired childhood, preferring instead the cognizable claims of the parents. The court stated:
We believe the award of the cost
of extraordinary medical care to