Damages For All

In Section II, we noted the recent increase in the size of damage awards. Given the difficulty of understanding jury behavior, speculation as to the causes of this trend is risky. [76] Still, one judicial trend deserves at least brief mention.

Historically, damages have been limited to actual physical damages except that, where physical injury was sustained, some allowance might be made for pain and suffering. The reason was to keep out of the courts speculative, impossible to measure claims. If people could claim damages for fears, phobias, or worries, there would seem to be no end to the number of possible lawsuits.

In 1970, Michigan began to allow emotional damages even though no physical injury had occurred. [77] In 1973, Michigan became just the second state (after California), to allow recovery for emotional distress caused by witnessing harm to a third person. [78] Though both cases were automobile accidents rather than products liability actions, they foreshadowed a trend to allow recovery for intangible harms that is rapidly giving way, in many jurisdictions, to allowing recovery for speculative harms.

In Ayers v. Jackson Township, [79] a New Jersey case, plaintiffs were allowed to recover more than $l3 million to monitor medical expenses and compensate for worry of potential harm, though the plaintiffs failed to prove any physical harm or disease from the contaminants which had entered their water supply. In another case, plaintiffs were again rewarded damages for "cancerphobia", even though no harm had yet manifested. [80] To date, no such outrageous case has appeared in Michigan, but the barriers to such rulings have already been knocked down.

Unfortunately, the traditionalists were right. When plaintiffs begin to collect because they think they might be harmed in the future, or saw someone else harmed, liability becomes all but unlimited and totally unpredictable. The result is higher prices for insurance, where it remains available at all.