Another thought on Waddah Mustapha v. Culligan of Canada, the fly-in-bottled-water case

by Ted Frank on May 27, 2008

The Canadian Supreme Court overturned the lower court C$341,000 decision in Mustapha v. Culligan of Canada, but it’s worth noting that the result would have been different in the United States. To recap, Waddah “Martin” Mustapha saw (but did not consume) a fly in a bottled water. As Yoni Goldstein memorably recounts:

[Mustapha] proceeded to vomit all over his house, and later experienced problems drinking anything with water in it, showering (because that also involves water) and going to work and having sex (where, presumably, water was involved in some major, incapacitating way).

Culligan did not contest that it was negligent; it did not even contest that the sight of the fly caused Mustapha’s injuries. It simply argued that Mustapha’s idiosyncratic reaction was not its concern, and that it should only be liable for the reaction of the reasonable person who had seen a fly in a bottle of water. In the US, that argument does not fly: basic 1L Torts teaches the “eggshell plaintiff” rule–you take the plaintiff as you find him or her. Canada differs. “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.” Canada is thus less prone to the sort of absurd claims that Mustapha raised than the United States is, as, if the courts follow the law, there is less incentive to exaggerate the scope of injury. In a US case, the defendant would have to engage in expensive pre-trial discovery to demonstrate that Mustapha’s psychological disorders were not caused by the incident, and would still have to go to a jury if Mustapha could produce an expert for hire who would testify differently. According to the Canadian Supreme Court, the appropriate approach is to simply use common sense and toss the case. But, as the lower court decision shows, there are certainly some in the judiciary who wish to move the Canadian model closer to the disastrous American one.

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Lawyer, there’s a fly in my water! | money news blog
05.29.08 at 2:41 am

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1 adsjfk 05.27.08 at 5:39 pm

I recently got an A in torts, and it looks as though the author could use a refresher course. The doctrine of the eggshell plaintiff applies to most torts, including the damages components of intentional torts and negligence. But when the cause of action is Negligent Infliction of Emotional Distress (in this suit, it does not seem that the plaintiff contends any injury other than a severe emotional reaction to the fly), the injury is viewed objectively. Furthermore, most jurisdictions in the US either do not accept NIED as a cause of action, or accept it only with limitations such as:
- the harm was intentional
- is associated with a physical injury
- resulting from defamation or libel
- results from witnessing a gruesome accident

Everybody knows that you can sue for anything, but no such suit is a sure thing, unlike the tone of this post would seem to portray.

2 Todd Rogers 05.27.08 at 5:40 pm

I’ll try to keep this palatable. How did the plaintiff respond to the daily (give or take) glance at his own excrement in a porcelain bowl, also “floating” in/with water? Might he want to complain to a court about this travesty?

3 Deoxy 05.27.08 at 5:55 pm

I view the “eggshell plaintiff” theory in the same (or really, the inverse) light as damage caps – certainly, in a better world, one should pay all damages one has caused, meaning that damage caps and “reasonable fortitude and robustness” should both fall by the wayside, but the perverse incentives created by said system result in massive injustice (as we have demonstrated here in the US), leaving those two methods (among others) as our best alternatives.

4 Ted Frank 05.27.08 at 5:57 pm

Anonymous commenter #1 neglects that (1) a plaintiff such as Mustapha who claims their emotional injury has a physical manifestation need not restrict themselves to a NIED claim and (2) most states’ product-liability statutes permit claims in product liability for pure emotional distress. See, e.g., Ohio Revised Code 2307.71(13).

5 CJS 05.27.08 at 7:19 pm

I tend to think the first commenter is right. That was my first thought on reading this – that someone claiming emotional distress (IIED or NIED) has to show that the distress wa reasonable.

Even assuming that the Ohio statute is representative of products liability law in all American states, I don’t see why it would allow Mustapha’s claim.

The relevant section of the statute says: ” ‘Harm’ means death, physical injury to person, serious emotional distress, or physical damage to property other than the product in question. Economic loss is not ‘harm.’ ”

To me, that statute doesn’t preclude a court from dismissing a emotional distress claim where the alleged “distress” is something no reasonable man would suffer. Perhaps Ohio courts have held otherwise. But I do think that it is stretching a bit far to cateogorically say that in America this case would’ve turned out differently. I think that it stands a fair chance of getting thrown out in any court.

6 asdfk 05.27.08 at 11:39 pm

The key phrase of the cited OH statute is “serious” emotional distress. It is my understanding that when a statute says “serious,” they mean it. Also, most courts, including SCOTUS, interpret actual injury and physical manifestations of an emotional injury as not being synonymous, and not sufficient. See Valley Forge Christian College v. Americans United (i know it is in the context of Fed standing, but still relevant discussion). While in most jurisdictions product liability from defective manufacturer does give rise to strict liability, his damages would be limited to the value of the product (a dollar maybe?), and the value of the emotional impairment, again from an objective perspective. I still have a hard time believing that the same case in the US would result in a runaway jury verdict, and a quick westlaw search does not bring up any cases for dead flies in water, food, etc that would indicate otherwise

7 Ted Frank 05.27.08 at 11:44 pm

CJS and Anonymous #1/#6 assume away the legal issue I discuss by changing the facts and claiming that Mustapha would not be able to recover in the US because his injury wasn’t “serious.” This sidesteps the issue, because Canada has the same standard, requiring psychological injury to be serious before it rises to the level of personal injury. Hinz v. Berry, 2 Q.B. 40, 42 (C.A. 1970). And the Canadian Supreme Court found that Mustapha’s emotional distress was serious: “The requirement of personal injury, which includes serious and prolonged psychological injury, is also met: M suffered a debilitating psychological injury which had a significant impact on his life.” Perhaps they could read the opinion that they are commenting about?

8 P Saunders 05.28.08 at 2:55 am

Sounds to me like he was suffering from hydrophobia. Can a bottling company be sued for causing rabies?

9 kushiro 05.28.08 at 9:27 am

Mr Mustapha comes from Lebanon (home to some truly impressive swarms of flies) and moved to Windsor (by the Detroit River). Given his sensitivity to insects and tainted water, it’s a wonder he has survived this far without serious mental trauma.

10 Graham Simms 05.28.08 at 10:23 am

In the opinion, the court states that if the water company’s negligence was the “proximate cause” of the manifestations, then the water company would have been on the hook for the total amount of the damages. Sounds like an embrace of the eggshell plaintiff rule to me.

The eggshell plaintiff rule is a rule of damages and not proximate cause (scope of liability), but it is easy to see how the two are confused. In physical injury cases, for the scope of liability/proximate cause inquiry courts ask if any type of physical harm was reasonably foreseeable, and if it was foreseeable, the tortfeasor is liable for the full extent of the harm. In a negligent infliction of emotional distress claim, the scope of liability question becomes was any actionable emotional distress foreseeable. The difference between the two inquiries is that for physical harms the court does not consider the extent of the harm when determining if it was reasonably foreseeable because it is assumed that all physical harms are actionable. While for NIED, not all distress is actionable, and, thus, only negligence that would foreseeably cause severe emotional distress is actionable.

I think the court’s rule that NIED is only recoverable if an objective person would be disturbed limits the scope of liability without limiting the size of damage awards is limited to the tort of NEID. The court’s rule could easily be imported to an American jurisdiction by arguing that the court is making a special rule of proximate cause for NIED claims not tied to a physical injury. So even if you have an expert come in a testify that the negligence was the cause in fact of the emotional distress, there is still the legal inquiry to determine whether the defendant’s negligence was the proximate cause of the severe emotional distress.

Figuring out what is reasonably foreseeable is a whole other bottle of flies.

11 Tom T. 05.28.08 at 10:50 am

As long as we’re all carefully reading the opinion, it seems worth noting that the Canadian court did expressly affirm the “eggshell-skull” rule (which has been a fixture of English common law for at least a few hundred years).

Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for purposes of damages. As stated in White, at p. 1512, focusing on the person of ordinary fortitude for the purposes of determining foreseeability “is not to be confused with the ‘eggshell skull’ situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected”. Rather, it is a threshold test for establishing compensability of damages at law.

And the quote about “reasonable fortitude” plainly cannot be taken at face value. If a Canadian driver negligently collided with an aged, osteoporotic pedestrian, I cannot imagine that Canadian law would measure damages according to the injuries that a healthy young adult would have suffered. In essence, the court seems to be groping for a test that limits “eggshell” status to preexisting physical conditions but not mental disabilities (i.e., that distinguishes frail plaintiffs from crazy ones).

It would have been doctrinally clearer if the Court had expressly disposed of the case on causation grounds, since that’s in effect what the decision does. Essentially, this case is Palsgraf v. Long Island Railroad.

12 Bill Poser 05.28.08 at 1:02 pm

Tom. T.,

Is it clear that the distinction the Court is groping for, or should grope for, is one between frail plaintiffs and crazy ones? It seems to me that there is another distinction that would yield the desired result that is less arbitrary, namely one involving the normal range of variation. To take your example of the elderly pedestrian, determining forseeability on the basis of a healthy young adult is to use a fairly small segment of the class of potential victims, and furthmore, one near the maximum resistance to injury, as the basis. However, any driver knows that many pedestrians are middle-aged or elderly or small children and can therefore forsee the need to drive in such a way as to avoid injury to pedestrians other than healthy young adults. It is therefore reasonable to hold a driver responsible for the sort of injury that an accident might cause to a frail elderly person or a small child. On the other hand, the driver cannot reasonably forsee that a pedestrian would have the proverbial eggshell skull or some other rare medical condition. So perhaps the right criterion is not a distinction between physical and mental but rather something like “within two standard deviations of the mean”.

13 Robert Lipton 05.28.08 at 2:12 pm

Any time I see the word ‘reasonable’ in a legal context, I shudder.

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