Evelyn Atkinson’s article, Telegraph Torts: The Lost Lineage of the Public Service Corporation, offers a fascinating look at judicial decisions and statutes from the late 1800s and early 1900s that–unusually for the time–imposed liability for negligence causing “pure” emotional distress. A typical fact pattern was as follows. A resident of a rural town would pay the local Western Union office to send an urgent telegram notifying the intended recipient that his close relative was dying. Because of Western Union’s negligence, the message was not transmitted. Bereft over having missed the last chance to commune with his dying relative, the intended recipient sued Western Union for damages. While claims of this sort often failed, courts and legislatures in Southern and Western states tended to validate them.
The paper is an effort to answer why, of all actors that caused foreseeable serious distress through their negligent acts, telegraph companies were almost uniquely vulnerable to liability, but only in certain states. Its answer has a paradoxical flavor. On the one hand, Atkinson suggests, liability was justified on the ground that Western Union–by far the dominant player in the industry–was for all intents and purposes a public utility, i.e., a powerful monopoly that provided an essential public service. As she explains, in parts of the West and South, when family members were geographically dispersed, the telegraph was effectively the only way for them to get in touch, particularly on short notice.
On the other hand, equally important was the fact that Western Union employees frequently interacted with customers in a highly personal, almost intimate, way. Thus, we learn from the article that telegraph operators in small towns, who often worked out of the local railway station, tended to be especially well-informed about goings on in the community and the larger world, and on that basis were expected to play a special role by, for example, tracking down relatives whose precise whereabouts might be unknown. We further learn that many operators were women, heightening the image (based on sex stereotypes of the time) that telegraph companies were welcoming, sympathetic, and could be entrusted to handle sensitive matters. Indeed, Atkinson has tracked down industry publications that embraced and fostered this image. In turn, when telegraph companies failed to deliver death telegrams, there was a sense among customers of something approaching betrayal.
The courts and legislatures that allowed for liability in the death-telegram cases took account of these features of the business by treating Western Union like a common carrier, and therefore as owing special solicitude to its customers. These were not arm’s-length transactions but instead contracts with a “status” component, akin in some respects to marriage contracts. In sum, according to Atkinson, when courts and legislatures imposed liability in death-telegram cases, they did so in recognition that Western Union provided services of a sort that warranted the imposition of a special legal duty to attend to certain customers’ emotional well-being. Strikingly, she reports that liability was imposed in cases brought by a range of claimants, including men and women, the wealthy and the non-wealthy, and whites and non-whites.
Atkinson concludes by suggesting that there are lessons for modern law in this historical episode. First, she says that it helps to bring to light the underappreciated role of private-law litigation in the emergence of the Progressive-era idea that certain large-scale businesses are affected by the public interest and thus properly subject to special kinds of regulation. Second, she claims that it stands as an important precedent within our legal traditions for the idea that law regulating utility-like entities (such as modern internet platforms) can and should go beyond protecting consumers against price gouging and other forms of economic exploitation. In sum, a set of seemingly quirky cases and statutes concerning a largely obsolete communications technology provides support for laws today that would impose a legal duty on entities such as platforms to take care not to carry content that foreseeably causes serious emotional distress to their customers.
There’s lots to like about this article. It’s rich in detail and nuanced in the story it tells. As such, it demonstrates the value of scholarly efforts to place doctrinal developments in historical and sociological context. It also uncovers and provides a plausible explanation for an interesting geographical distribution of decisions and statutes. And it nicely highlights how different types of business-customer interactions are governed by different social norms and legal rules. When customers rely on a business to handle certain sensitive or intimate aspects of their lives, those businesses may have special obligations to be attentive to the distinctive harms that might result if they are not diligent. As noted, Atkinson argues that today’s internet platforms interact with users in a manner that fits this mold, and thus that it would be in keeping with our legal traditions for courts and legislatures to hold them accountable for mishandling private communications and information in a manner that predictably causes serious distress.
Naturally, there are also grounds for challenging some of the article’s claims. For example, its characterization of the bases on which courts and legislatures held telegraph companies responsible does not seem to explain why liability was limited to the mishandling of death telegrams. Why was there not liability for other foreseeable distress caused by comparable screw-ups, such as the failure to deliver a telegram that caused an aunt to miss the birth of her niece? In other words, if the basis for liability was that Western Union provided an essential public service while also carefully cultivating among its customers the sense that it could be trusted to handle delicate matters, why didn’t one see liability for negligent failures to deliver any message concerning something about which a sender or intended recipient would be expected to have strong feelings?
Relatedly, as Atkinson notes, a roughly contemporaneous line of cases recognizing liability for emotional distress were suits brought by surviving family members against morticians who mishandled their decedents’ corpses. Coincidence? Or was it less important to the death-telegram cases that Western Union was a quasi-utility whose employees were embedded in small-town communities and more a matter of courts and legislatures recognizing that when any business–large or small, embedded or not–knowingly undertakes to provide services to the bereaved, it is obligated to be vigilant of such persons’ emotional well-being?1 (A recognition of this sort seemingly underlies the recent verdicts in Vanessa Bryant’s and Chris Chester’s suits against the Los Angeles Sheriff’s and Fire Departments for their failure to prevent officers from inappropriately sharing gruesome images of Bryant’s and Chester’s decedents.)
While one can thus question whether death-telegram cases serve as strong precedents for certain forms of progressive public-utility regulation, there’s no denying that Atkinson has provided us with a subtle, informative, and suggestive treatment of an important moment in the development of modern negligence law. Anyone interested in the history of tort law, or in contemporary questions about liability for emotional distress, will want to read–and will enjoy reading–this fine article.
- See Benjamin C. Zipursky, Snyder v. Phelps, Outrageousness, and the Open Texture of Tort Law, 60 DePaul L. Rev. 473, 507-08 (2011) (arguing that the death-telegram and mortician cases are indicative of tort law’s longstanding solicitude for victims wrongfully made to experience added distress over the death of close relatives, and suggesting that this feature of tort law, among others, was ignored by the majority opinion in Snyder v. Phelps, 562 U.S. 443 (2011)).
