182
Opinion of Breyer, J.
Justice Breyer, concurring in part and dissenting in part.
I join Parts I, II, and IV of the Court's opinion. I agree with Justice Kennedy, however, that the law does not permit recovery for "fear of cancer" in this case. And I join his opinion dissenting from Part III. Because the issue is a close and difficult one, I mention several considerations that, in my mind, tip the balance.
Unlike the majority, I do not believe that the Restatement (Second) of Torts (1963-1964) (hereinafter Second Restatement) comes close to determining the correct answer to the legal question before us. Cf. ante, at 148-149, 154 (majority opinion). The Second Restatement sets forth a general rule of recovery for "fright, shock, or other emotional disturbance" where an "actor's negligent conduct has so caused any bodily harm to another as to make him liable for" it. § 456. But the Second Restatement neither gives a definition of the kind of "emotional disturbance" for which recovery is available nor otherwise states that recovery is available for any kind of emotional disturbance whatsoever. Ibid.
The underlying history underscores the openness of the legal question and the consequent uncertainty as to the answer. When Congress enacted the Federal Employers' Liability Act (FELA) in 1908, 45 U. S. C. §§ 51-60, the kinds of injury that it primarily had in mind were those resulting directly from physical accidents, such as railway collisions and entanglement with machinery. See Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 542 (1994). And (where negligent conduct was at issue) the Restatement nearest in time to FELA's enactment (and therefore presumably likely to be more reflective of the background rules that FELA then assumed, cf. id., at 554-555) limited recovery for related emotional distress to concrete harm resulting from that distress. Restatement of Torts § 456 (1934) (herein-after Restatement). In particular, this earlier Restatement restricted recovery to "physical harm resulting . . . from
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