When Harm Hits Home: Relationships, Distress, and the Law’s View

Hey there! So, I’ve been diving into some pretty interesting stuff lately, specifically how the law looks at harm. Not just the obvious physical stuff, but the kind that messes with our lives in deeper ways, especially when it involves the people we’re closest to. It turns out, it’s a bit more complex and fascinating than you might think!

I was reading about this idea from a guy named Greg Keating, who argues that tort law – that’s the area of law dealing with civil wrongs that cause harm, like negligence – is really, really focused on “harm.” Like, *preoccupied* with it. But here’s the twist: he defines harm in a specific way. It’s not just something bad happening to you or a setback to your interests. For Keating, harm is something that “thwarts” or “impairs” your *agency*. Think of agency as your ability to exert your will on the world, to shape your life, to pursue your projects. So, a broken leg is a harm because it stops you from doing things you want to do, right? It messes with your ability to act in the world.

What’s Tort Law All About Anyway?

According to Keating, the whole point of tort law, its “heart and soul,” is to figure out and enforce our obligations to each other – basically, not to mess up other people’s ability to live their lives effectively. He sees all the different kinds of torts, from battery (hitting someone) to trespass (going onto someone’s property without permission), as hanging together because they’re all about protecting us from things that diminish our capacity to act. It’s about safeguarding those essential conditions that let us be agents in the world.

He gives examples like physical injuries – losing sight, breaking a limb. These clearly make it harder to do things. They create a “discordance” between what we want to do (our will) and what we can actually do (our circumstances). This “chasm” or “disconnect” is, for him, the core of what makes something a harm in the legal sense he’s interested in. He also includes things like infringing on our rights, because having our “zones of control” respected is also crucial for our agency.

But here’s where I started scratching my head a bit. While I totally get the agency part when it comes to *my* body or *my* rights, what about harm that happens to someone *else*?

When Harm Isn’t Just About You: The Relationship Puzzle

The law actually has ways of dealing with this, and one classic example is something called “loss of consortium.” This is a type of claim where, if someone seriously injures or kills your spouse (or sometimes other close family members), *you* can sue the person who caused the injury. You’re not suing because *you* were physically hurt, but because you’ve lost something incredibly valuable from the relationship – things like “society, comfort, affection, companionship, and sexual relations.” Sometimes, it also includes compensation for the emotional distress you suffer.

Now, if my life partner was seriously injured or, heaven forbid, killed, that would be absolutely devastating, a massive setback to my interests and well-being. No question about it. But how does that fit into Keating’s picture of harm being about impairing *my* agency? My spouse’s injury doesn’t break *my* leg. It doesn’t directly stop *me* from making choices or pursuing *my* individual goals in the most obvious sense. Sure, I’d have to drop everything to care for them, redirect my efforts, take on new responsibilities. But couldn’t you argue that’s me *exercising* my agency, choosing to prioritize my partner?

This is the challenge that loss of consortium claims seem to pose to Keating’s otherwise compelling agency-centered view of harm. It looks like the law is protecting something else here – the relationship itself, and the emotional impact on the uninjured partner.

Building a Life Together: The Shared Project Idea

I think there’s a way to bridge this gap, and it involves thinking about our closest relationships in a particular way. What if marriage-like relationships aren’t just two individuals living side-by-side, but are actually a special kind of *shared project*? The idea isn’t just that partners *have* shared projects (like raising kids or building a house), but that the relationship *itself* is a project – the project of “co-authoring a life together.”

Think about it: in a deep partnership, you’re not just pursuing your own individual path; you’re weaving your lives together. You make joint decisions, you articulate shared values, you plan a future *together*. You become a “we,” a “practical union.” This isn’t just a metaphor; it involves sharing agency, making choices not just for yourself, but for the partnership.

Our individual projects are crucial to our agency – they’re how we express ourselves and give meaning to our lives. If something frustrates one of *my* important projects (like destroying a manuscript I’ve poured years into), that feels like a harm, even if I can still write other things. It creates that disconnect between my will and my circumstances.

Connecting the Dots: Relationships, Harm, and Your Agency

So, if a marriage-like relationship is a fundamental, identity-shaping shared project, what happens when one partner is seriously harmed? Well, that harm doesn’t just affect the injured person; it directly imperils the *shared* project. If your partner dies, the co-authored life you were building together is cut short. You can start a new life, maybe even co-author a new one with someone else, but *that specific project* is over. The capacity needed to pursue *that* project was shared, and it’s gone.

Even with a serious non-fatal injury, the shared project can be profoundly altered. The ability to pursue shared goals (like hiking mountains together) might be lost. The subtle, everyday ways you share a life – the inside jokes, the division of chores, the late-night talks – can change dramatically. The shape of the life you were co-authoring together can feel “importantly foreign,” disconnected from the joint efforts you both invested.

From this perspective, a harm to one partner *is* a harm to the other, not just because it makes them sad or causes them inconvenience, but because it impairs their agency *in relation to the shared project*. It frustrates their ability to continue co-authoring the life they were building. This, I think, provides a solid basis within Keating’s framework for understanding why loss of consortium claims exist and why they protect something fundamental. It’s not just about protecting emotional tranquility; it’s about protecting the capacity to engage in this vital form of shared agency.

Now, you might ask, why does the law single out marriage-like relationships? People have shared projects with friends, business partners, etc. That’s a fair point, and the law’s line here is admittedly a bit messy and debated. But perhaps the answer lies in the unique depth, emotional investment, and identity-shaping nature of these relationships for many people. They represent an “urgent interest” in avoiding harm, and urgent interests, in Keating’s view, tend to ground legal rights. Plus, the law often defers to lines drawn by other areas of law (like family law) when deciding which relationships get special treatment.

Beyond Relationships: Emotional Distress and the Bystander Problem

This idea of relationships as shared projects also helps shed light on another tricky area: liability for emotional distress. Sometimes, people can recover damages just for severe emotional suffering, even if they weren’t physically harmed. Keating argues that this isn’t a freestanding tort (a separate wrong just for causing distress) but is “parasitic” on other duties.

For example, if someone nearly hits you with their car and you’re terrified but not physically injured (“zone of danger” case), Keating would say they breached their duty not to put you at risk of physical harm, and your emotional distress is a consequence of that breach. If a funeral home mishandles your relative’s burial (“pre-existing relationship” case), they breached a duty related to that specific service, and your distress flows from that.

But what about the “bystander” case? This is where someone witnesses a sudden, serious injury or death of a close relative caused by a defendant’s carelessness, and suffers severe emotional distress as a result. The classic example is seeing a loved one hit by a car. Keating wants to say this is also parasitic on the duty not to cause physical harm. The defendant breached their duty by driving carelessly and risking physical harm *to someone*.

Here’s my hang-up: In the zone-of-danger case, the “someone” who was put at risk of physical harm *includes the plaintiff*. There’s a direct link, or “nexus,” between the defendant’s risky conduct and the plaintiff. But in the bystander case, the plaintiff *wasn’t* physically imperiled. The risk of physical harm was to someone *else*. Tort law usually requires this kind of alignment – the risk that makes the conduct wrong should be a risk *to the person suing*. If the bystander wasn’t in the zone of danger, where’s the basis for the defendant being liable *to them*? If there’s no independent basis, then it looks like emotional distress *is* a freestanding ground for liability, which Keating wants to avoid.

The Shared Project as the Missing Link?

This is where the shared-project idea for relationships might come to the rescue! What if loss of consortium doctrine provides that missing “nexus” for bystander cases involving close relatives?

Think about it: when someone carelessly injures a spouse (or child, or parent), they aren’t *just* risking physical harm to that individual. If we accept the shared-project view, they are also, by definition, imperiling the fundamental shared project that person is engaged in with their close relatives. The harm to the shared project is, in a sense, indivisible. It affects both partners.

So, even if the bystander spouse wasn’t physically endangered, the defendant’s careless act *did* imperil something fundamental to *them* – the shared life project with their injured partner. The risk wasn’t just “risk of physical harm to someone”; it was also, indirectly but profoundly, a risk to the shared project of the relationship.

If the defendant is liable for the harm to the shared project when it affects the physically injured person (which they are, often through general damages or loss of enjoyment claims), why shouldn’t they also be liable for that same, indivisible harm when it affects the non-imperiled partner? The risk as to one partner, regarding the shared project, is a risk as to the other.

This suggests that in bystander cases involving close relatives, the liability for emotional distress isn’t freestanding. It’s “parasitic” not just on the risk of physical harm *to the victim*, but on the underlying basis for liability to the bystander *through the loss of consortium doctrine*. Loss of consortium, understood through the lens of impaired shared projects, provides the necessary link. It explains why the defendant’s responsibility can “jump” from the physically endangered person to the emotionally distressed bystander spouse – because the harm (to the shared project) is something they both suffer, and the defendant’s action put that shared project at risk.

It’s a bit of a complex dance between different legal concepts, but I find it pretty compelling. It allows Keating to maintain his view that emotional distress liability is parasitic, while also making sense of why bystanders can recover. The basis isn’t that the defendant owed the bystander a duty not to cause them emotional distress directly, but that they harmed the shared project, and the bystander’s severe emotional distress is a consequence of that particular, relationship-based harm for which the defendant is already responsible (at least to the injured partner).

Ultimately, I think looking at relationships as shared projects really strengthens the argument that tort law, even when dealing with seemingly indirect harms like loss of companionship or emotional distress, is fundamentally concerned with protecting our ability to live our lives and pursue what’s important to us – including the lives we build *with* others. It helps explain why harming someone you love can, in the eyes of the law, be understood as harming you too, by striking at the very foundation of the life you share.

Source: Springer