Fox News Sued for Distress Caused by On-Air Suicide

BBC reports on a lawsuit filed by the family of a man who shot himself at the end of a car chase broadcast by Fox News is suing the network for infliction of emotional distress that arose from viewing the broadcast.

This suit initially seems related to negligent infliction of emotional distress (NIED) (which I posted about in the context of exam grades here.)  I find it difficult to fit this lawsuit into the NIED category, however.  The news-public relationship does not seem to be a relationship that is likely to cause severe harm or distress if the newscaster acts negligently (as opposed to, say, an undertaker who misidentifies a body and cremates it.)  Additionally, this does not seem to fit into the category of bystanders suing for NIED because Fox News did not cause the act that resulted in the harm.  This is different from, say, Scherr v. Hilton Hotels Corp., 214 Cal. Rptr. 393 (1985) a case where plaintiff argued (unsuccessfully) for NIED when the plaintiff saw a live broadcast of a hotel fire where her husband died.  In that case, the plaintiff was suing the hotel, not the news agency, because it was not the news agency that caused the harm that in turn caused the emotional distress.

Here it is different -- the plaintiff is focusing her efforts on the news agency that broadcast the suicide of the father of her children.  It probably would not be sense to sue the most direct cause of the distress -- the man himself -- since he is dead.  The question becomes whether the medium that communicates the distressing event can be sued, that is, whether the plaintiff can sue the messenger.

There is the possibility that the plaintiff may still have an argument for emotional damages caused by general negligence.  After all, negligent infliction of emotional distress is a separate claim that tends to accompany arguments for negligence.  If the plaintiff can argue that Fox News was negligent in reporting this suicide, the plaintiff may be able to claim damages for emotional distress.  It is not clear whether the plaintiff is pursuing this theory, since the article indicates she is suing for "infliction of emotional distress."

This strategy is not foolproof however.  Under the Hand formula for negligence, the plaintiff would need to argue that the precautions that Fox News could have taken to prevent her distress would have been less costly than the harm she suffered multiplied by the probability of this harm.  Fox News would have a strong argument that there was a low probability that a person in a car chase would shoot himself.  On the other hand, many news agencies delay their broadcasts by a few seconds, so there may have been low-cost measures Fox News could have taken to avoid harm.

On yet another hand, however, this seems to raise interesting questions about the live broadcasting of disasters or terrorist attacks.  If Fox News were to report on a story more newsworthy than an exciting car chase, say an ongoing terrorist attack, and if this story were to show victims being killed, could the families of the victims sue Fox News for infliction of emotional distress?  This lawsuit intuitively seems less meritorious, and this intuition may be bolstered by recognizing that altering the coverage of events like terrorist attacks may have a much higher cost than altering the coverage of car chases.  Calculating these comparative costs seems to require some determination of the newsworthiness of events as measured by the costliness of altering the coverage of the events - a task that seems to be quite difficult.